Several people have recently informed our firm that they took the advice of police and filled out the back of their little yellow ‘court attendance notice’ (CAN), indicated a plea of guilty, then sent it to court only to later discover that a criminal conviction had been recorded against their name.
This blog post seeks to correct police misinformation and to explain your options so that you can make an informed decision if you are ever charged with a criminal offence and are considering sending the form rather than attending court personally.
What is a Written Notice of Pleading?
If you are charged with a crime, police will need to issue you with a CAN.
In less serious cases such as drug possession, negligent driving etc this will often be a little yellow form which police fill out in handwriting. It will contain a ‘written notice of pleading’ (a WNP) on the back, which you can fill out and send to the court. The WNP allows you to enter a plea of guilty in writing.
By completing and sending a WNP to the court, you are telling the Magistrate that you want to plead guilty and to have the case decided in your absence.
Any advice that sending a WNP to court means you will avoid a conviction is simply incorrect.
Rather, courts will often impose fines for minor criminal offences when a person does not show up – and fines automatically come with criminal convictions.
In fact, Magistrates are not required to sentence people in their absence at all.
What Can Happen if I Send a WNP and Do Not Attend Court?
If you decide to send a WNP and not show up to court, the Magistrate can:
1. Decide the penalty in your absence,
2. Adjourn your case to another date and order you to attend court, or
3. Issue a warrant for your arrest.
Contrary to what police might say, failing to attend court can send a signal to the Magistrate that you are not taking your case seriously and haven’t made steps to ensure there is no re-occurrence.
This can increase the likelihood of having a criminal conviction recorded against your name.
On the other hand, if you take the rights steps in the lead-up to your court date and face the court personally, you may be more likely to get a reduced penalty or avoid a criminal record altogether.
Depending on the nature of the case, those steps might include:
- Obtaining character references,
- Writing an apology letter to the court and/or victim,
- Paying compensation for any damage caused,
- Participating in a victim / offender conference,
- Completing a Traffic Offender Program, for traffic offences such as drink driving, and/or
- Undertaking counselling eg for anger management in assault cases or drug counselling for drug possession and supply cases.
Section 10 Dismissal or Conditional Release Order – No Conviction
Many people ask us about getting a ‘non conviction order’.
The most common form of non conviction order come with a good behaviour bond – which is known as a ‘section 10 bond (now conditional release order without conviction)’.
But if you don’t show up to court, you will not be eligible for a non conviction order because there is a requirement that you must formally accept the bond, either in the courtroom or by signing it at the court office.
This is a good reason why you should always show up to court rather than send a WNP.
And of course, having a good lawyer to help you prepare for your case and present it the right way in court can certainly assist you to get the best result – it can even help to show the Magistrate that you are taking the situation very seriously, have accepted responsibility and are unlikely to re-offend.
Can I Appeal a Conviction Made in My Absence?
If you end up being convicted in your absence, you generally have three options:
(1) Do nothing,
(2) File a Section 4 Annulment Application, or
(3) File a District Court Appeal.
Section 4 Annulment Applications
A section 4 annulment application is a request for the Local Court to cancel the conviction and the penalty that was imposed in your absence.
Annulment applications must be lodged within 2 years of being sentenced in the Local Court.
You (or your lawyer) will have to complete a written application and file it in the Local Court, which usually comes with a filing fee.
The application will then be given a hearing date.
You may wish to outline in the written application why you did not attend, and you can also attach supporting materials such as a copy of your WNP, any medical certificates and so on.
On the day of the hearing, you (or your lawyer) can verbally explain the situation, and the Magistrate will then decide whether to allow or refuse your application.
If the application is refused, the sentence that was originally imposed will remain.
If the application is allowed, you can formally enter a plea of guilty and be re-sentenced by the court – at which time you can seek a more lenient outcome, including a non conviction orders
Incidentally, if your annulment application is successful you may be able to enter a plea of not guilty and proceed on that basis.
And if your application is refused, you may still be able to lodge an appeal to the District Court provided that you are within the strict time limits imposed by that court.
Annulment applications are very common and there may be a range of good reasons for not attending court on a particular date.
District Court Severity Appeals
An appeal against your sentence is known as a‘severity appeal’ and involves convincing the Judge that the penalty imposed by the Local Court Magistrate was too harsh.
You must lodge a severity appeal within 28 days of being sentenced in the Local Court, unless you are able to provide good reasons for the delay.
However, you will not be able to lodge a severity appeal more than 3 months after being sentenced in the Local Court, regardless of whether or not you have good reasons.
On the day of the appeal hearing, you can hand up documents and make verbal submissions in an attempt to persuade the Judge to impose a lighter penalty.
The Judge will then decide whether to:
(a) Uphold your appeal and give you a more lenient outcome, or
(b) Dismiss your appeal and confirm the Local Court decision.
It is important to note that the Judge must give you a warning if he or she is considering a harsher penalty, at which time you can withdraw your appeal and accept the sentence imposed by the Local Court.
Three friends recently contacted our firm after receiving criminal convictions in their absence.
They each received Field CANs for drug possession at a popular music festival.
Police advised them that they would not receive convictions if they completed and sent WNPs to the court.
However, the Magistrate in Downing Centre Local Court imposed fines on each of them, which automatically come with criminal records.
Our lawyers appealed the sentences to Downing Centre District Court and quickly persuaded the Judge to impose non conviction orders in each of their cases, which means they all avoid convictions – to their great relief.
If you have missed your court date, or are unhappy with the result in the Local Court, feel free to call us anytime for advice about your options and the best way forward.