Guide
Criminal court process: A guide
Understanding the Magistrates' Court process and preparing your client for a criminal hearing.
Bail, warrants and missed criminal hearings
What is bail?
A person is said to be on ‘bail’ if they are released from police custody after being charged with an offence. If a person is held in custody, they are said to be held ‘on remand’ while their charges are being dealt with. When someone is on remand, they should be able to access legal assistance. If the police apple to hold someone on remand, the person will go before a Magistrate to decide if the person is granted bail.
When a person is granted bail, they will be asked to sign an ‘undertaking of bail’. This undertaking will specifically require the person to attend court on their hearing date. Sometimes police or the Courts can include other conditions to a person’s bail, which should be outlined in the undertaking. Common bail conditions are reporting to police, living at a certain address, curfew conditions requiring a person to be at that address between certain hours, or conditions requiring people not attend at certain places or in certain areas.
Not every criminal charge will see someone placed on bail. For minor offences such as traffic offences, the police usually serve a charge and summons to appear at court at a later date. A person is usually held on remand or placed on bail when they are charged with more serious offences. A person on bail who fails to comply with their bail conditions can be arrested. It is a criminal offence:
- not to appear when required to do so,
- to breach a bail condition, or
- to commit an offence while on bail.
What is an arrest warrant?
A warrant of arrest is an official document giving the police power to arrest a person. It can be used where a person on bail or summons has failed to attend court when required.
Where police can’t locate a person to serve charges on them, sometimes they will initiate criminal charges by a ‘charge and warrant’. For these matters to get listed at court, police will need to arrest that person to execute the arrest warrant and serve the charges on them.
Missed criminal hearings and police interviews
- What if my client has missed a court date?
- My client has been asked to attend a Police station for an interview or to execute a warrant. Should they speak to a lawyer first?
What if my client has missed a court date?
If your client failed to attend a court date for a criminal matter, they may have an outstanding warrant or the matter may have been dealt with ex parte (in their absence).
If you know when and where the matter was listed and/or the name of the Informant, you can call the Criminal Co-ordinator at the relevant Magistrates’ Court to find out what happened on the missed court date.
If there is an outstanding warrant, it is worthwhile referring the client to a criminal lawyer for advice or representation. Depending on the circumstances, a lawyer may not be able to assist until after the warrant is executed.
If the matter was dealt with ex parte, your client will likely have received a penalty (i.e. a fine) and may not be aware of it. The Criminal Co-ordinator will be able to clarify the outcome and can send you the Notice of Order. In certain circumstances, the client can apply for a re-hearing of the matter or can appeal the conviction and/or sentence to the County Court (but there are strict timeframes so it is important to act quickly). If the client wants to explore these options, they should be referred to a criminal lawyer for advice (see below).
My client has been asked to attend a Police station for an interview or to execute a warrant. Should they speak to a lawyer first?
If your client is suspected of committing a crime and is asked to attend an interview with Police, you should encourage them to contact a lawyer for advice prior to the interview commencing. Police are obliged to inform an accused person of their right to speak to a lawyer, and to give them the opportunity to call Victoria Legal Aid or the Victorian Aboriginal Legal Service (or another lawyer) in private prior to the interview commencing.
Police have a number of powers and accused persons have a number of rights and some obligations in the context of a criminal investigation. If you client is unsure of their rights and obligations when dealing with the Police, Victoria Legal Aid has some very useful publications on being arrested, and rights when it comes to police powers. The Law Handbook also has information on arrest, search, interrogation and your rights.
If your client has an outstanding warrant and would like advice before arranging to have it executed, see below for free legal support including advice and representation.
Legal help
It is important that your client obtains legal advice before going to court. Your client might have a relationship with a private lawyer so it can often pay to check if they already know a lawyer they want. If they need help getting a lawyer, refer your client to one of the following services for free legal advice or representation.
The content on the Workers’ Resource Hub is legal information for general guidance and not legal advice. The content on this webpage was last updated in August 2023. See full disclaimer and copyright notice.
