Apply for a rehearing

If your client did not attend the hearing when the fine was imposed, your client could apply for a re-hearing pursuant to s 88 of the Criminal Procedure Act 2009 (Vic) (CPA).

Section 88 of the CPA provides that where a sentence is imposed by the Magistrates’ Court in a criminal proceeding on a person who did not appear in the proceeding, that person, or the informant on that person’s behalf, may apply to the Magistrates’ Court for an order that the charge be reheard.

Procedure for a rehearing

Pursuant to r 31 of the Magistrates’ Court Criminal Procedure Rules 2009 (Vic) (the Rules) an application for a rehearing must be filed using Form 18 of the Rules with a Magistrates’ Court Registrar, who will prepare the appropriate documentation and ensure the application is listed. There is no fee for a rehearing application in the criminal jurisdiction. An application made using Form 18 is taken to be a notice of intention to apply for a rehearing pursuant to s 89 of the CPA.

Under s 89 of the CPA, a notice of intention must:

  • state the reason why the person on whom the sentence was imposed did not appear in the proceeding; and
  • be filed with the registrar at the venue of the Magistrates’ Court at which the sentence was imposed.

A copy of the notice of intention must be served within seven days after filing the notice on any respondents in a manner permitted under s 392 of the CPA (s 90 of the CPA).

Once a notice of intention is filed, the sentence (other than an order for the cancellation, suspension or variation of the driver licence of the person on whom the sentence was imposed) is stayed until:

  • the application for rehearing has been heard; and
  • if a rehearing is granted, the charge has been reheard (s 91 of the CPA).

If your client’s licence was affected by the court case in their absence and they need to drive in the meantime, then you may apply to the Court for a stay of that order (s 91(2) of the CPA) and notice given to the informant of that stay application at least 7 days before it is made (s 91(3) of the CPA).

Your client will have an automatic right to a rehearing where:

a)the court is satisfied that a charge sheet was served in accordance with s 394 of the CPA, (ordinary service rather than personal service) and the Court is satisfied that the charge-sheet was not brought to the notice of the applicant prior to the hearing of the charge; and

b)your client applied for a rehearing within 28 days after being served with a notice under s 87(4) of the CPA (s 94 of the CPA).

Otherwise, the Magistrate is not obliged to grant your client’s application and therefore it is up to you to convince a Magistrate that there is a good reason why your client should have their case reheard.

If your client fails to appear at the time fixed for the rehearing and the application is struck out, your client may reapply under s 88 only if they first obtain the leave of the Magistrates’ Court (s 93 of the CPA).

Sentencing at a rehearing

If the application for rehearing is successful, keep in mind that the client will be sentenced for the original offence under the Sentencing Act 1991 (Vic).  Refer to Hearings in Open Court for more information about this process.

In some cases, the underlying offence may involve a criminal charge that Homeless Law does not have the expertise to defend.  If the client is pleading guilty, Homeless Law may be able to able to run mitigation arguments. Please speak to Homeless Law’s Senior Criminal Lawyer about the possibility of a referral to them or potential external referrals that may be available for the client.

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