One of the most common questions I’m asked is:

“What happens if the witness or ‘victim’ doesn’t come to Court?”

The answer is: it depends, and it’s more complicated than just “the case gets thrown out”.

In Local Court practice, especially in domestic violence matters, there are many cases where the main prosecution witness does not attend the hearing. Advocacy papers and bench materials recognise this as a recurring issue.(Criminal CPD)

If the witness was never subpoenaed

If the complainant is not under a subpoena, the prosecution will usually:

• Ask the Court for an adjournment to try again; or
• Re‑assess whether they have enough other evidence (e.g. body‑worn video, 000 recordings, admissions, photographs) to proceed.(ODPP NSW)

The Court looks at fairness, delay, and whether the prosecution has done enough to secure attendance.

If the witness was subpoenaed and fails to appear

If the witness has been properly served with a subpoena and doesn’t attend, the Court has the power to:

• Issue a warrant for that witness to be brought before the Court; or
• Proceed in their absence if there is sufficient other evidence.(Judicial Commission of NSW)

The Local Court Bench Book and practitioner materials stress that this is a case‑by‑case decision. In domestic violence lists, there is often a strong push to keep matters going, but the Court still has to weigh fairness to the accused.(Criminal CPD)

Can the case be dismissed if the witness does not turn up?

Sometimes yes.

If the complainant is the only real witness and they do not appear, and there is no other admissible evidence, the Court may:

• Refuse adjournments and dismiss the charge; or
• Proceed ex‑parte on the limited material (for example, written statements) if the law allows and it’s fair to do so.(Criminal Defence Lawyers Australia)

But there are serious ethical boundaries:

• I never advise or imply that a complainant or witness should ignore a subpoena or fail to attend. That would be encouraging them to breach a Court order and could itself be a criminal offence.(Sydney Criminal Lawyers)
• My role is to protect your rights when witnesses do not turn up despite the Court’s orders or despite the prosecution’s efforts.

When witnesses are missing, I make submissions about prejudice, delay, reliability and fairness. Sometimes that leads to charges being withdrawn or dismissed; sometimes the Court grants an adjournment with strict directions to the prosecution.

If you have a hearing coming up and you’re worried about whether witnesses will attend, get in touch at www.spice.law. We’ll talk through what might happen and how to handle each scenario ethically and strategically.