What Happens When Witnesses Disappear In NSW Courts?

Witnesses are at the heart of every criminal and civil court case in New South Wales. Their testimony brings facts to life, confirms timelines, and is often the difference between conviction and acquittal. 

But what happens when a scheduled witness fails to appear for court, cannot be found, or refuses to provide evidence? 

Disappearing witnesses can disrupt the entire process. It’s essential for legal practitioners, accused persons, and victims alike to understand the legal options, consequences, and procedures that are set in motion by a witness’s absence.

Legal Response: Adjournments and Arrest Warrants

When a prosecution or defence witness does not attend court, the very first step is usually an application for an adjournment, a formal delay so the witness can be given another chance to appear. Under the Criminal Procedure Act 1986 (NSW), the decision to grant an adjournment rests fully with the magistrate or judge, considering factors like the importance of the evidence and reasons for the absence.

If the witness is considered crucial and a subpoena (official court order to attend) has been issued and ignored, the court can escalate the response:

• Issue a warrant for the arrest of the absent witness (section 229), provided all subpoena requirements were followed.
• The court must be convinced the absence is without just or reasonable excuse. Only in cases of illness, emergency, or genuine hardship is failing to comply with a subpoena usually excused.
• On the return of the warrant, the witness can be compelled to give evidence, and failure to comply may be treated as contempt of court, a criminal offence in itself.
  

However, not all adjournment requests are granted especially if the witness’s absence seems intentional, repetitive, or unrelated to the case’s key issues.

 

Can “Statements” Replace Absent Witnesses? (The Hearsay Rule)

If a crucial witness is absent and the adjournment is refused, the prosecutor (or sometimes the defence) might try to “tender” that witness’s out-of-court statement under the hearsay exceptions in the Evidence Act 1995 (NSW). 

The most relevant is section 65, which allows for admission of a witness’s statement if the maker of the statement is genuinely unavailable (dead, unfit, cannot be located after reasonable steps).

But strict conditions apply:

• The statement must have been made in circumstances suggesting reliability.
• The defence must receive fair notice the statement may be used.
• The magistrate/judge must weigh up whether it is appropriate (including considering potential prejudice to the accused).
• Cross-examination is not possible, so courts are cautious about convicting solely on a statement not tested in court.
  

Practically, courts rarely allow “untested” statements unless there’s strong reason to believe the witness cannot be produced and the evidence is reliable and essential.

Strategic Impact: Burden of Proof and Defence Tactics

When prosecution witnesses disappear:

• The prosecution may not be able to make out a “prima facie case” the minimum evidence required to proceed to verdict which can lead to charges being dismissed.
• Defence lawyers may object to adjournments or the use of witness statements, especially where delay or unfair surprise would prejudice the accused’s rights.
• The “Jones v Dunkel” rule may apply where failure to call a witness without explanation allows the court to infer the missing evidence might not have helped that party’s case.

However, simply being “absent” is not always a get-out-of-jail-free card for an accused person. The strategy depends on whether the evidence is genuinely crucial or whether the rest of the case is strong enough to proceed.

 

Rights and Risks for All Parties

For witnesses: 

Ignoring a subpoena is not only disruptive, but also illegal. Arrest, fines, or imprisonment for contempt of court can result. 

However, witnesses with genuine fear, hardship, or compelling reasons should communicate quickly with parties or the court, as courts can make accommodations.

For the accused: 

Being absent or represented only by a lawyer carries its own risks and complexities. 

While a magistrate usually cannot convict solely on the police facts if a lawyer appears on the accused’s behalf, not attending may mean losing opportunities to give evidence or challenge the case. Failing to appear can itself be an offence.

For the system: 

Courts must balance fair trial rights, the need for reliable evidence, and the interests of justice. 

Every step taken after a witness disappears is meant to serve one goal: ensuring that only tested, reliable evidence is used to resolve the case, and all parties have a fair chance to be heard.

Facing Witness Issues? Get Defence Guidance from The Defenders

When witnesses disappear, cases become unpredictable and fast-moving. Whether you’re a defendant worried a key witness has vanished, a witness facing a subpoena, or someone unsure about your rights, 

At The Defenders, we specialise in helping clients navigate complex criminal matters. Our team will act fast to protect your rights, explain your options, and fight for the best possible outcome.

Call us today on (02) 9283 3033 or fill out our online form to get the expert advice and representation you need.