Area of Law – Practice and Procedure

An Article about Refusal of adjournment in criminal case

Refusal of Adjournment in criminal case
The adjournment of a matter is at the discretion of the Magistrate or Judge.

It is not just about the interests of the accused it is also about the interests of justice.

Practically speaking if you have a genuine reason to adjourn and have not been adjourning the matter a lot previously, the Courts will give you an adjournment. If you have a contested hearing/trial coming up it is important you make the application well before the fixture as the inconvenience to all the witnesses and the costs are factors that will be taken into account.

Appeal against the decision to refuse an adjournment
“It is well established that the decision, whether to accede to or to refuse an application for an adjournment, is an exercise of a judicial discretion. Appellate courts rarely interfere with a trial judge’s exercise of that discretion.

However, where the result of a refusal of an adjournment might be to prevent a party from presenting his or her case as fully as necessary and within the limits of the law, then an appellate court will interfere with a trial judge’s exercise of his discretion. Such an intervention by an appellate court occurs where it is necessary to prevent an injustice to one or other of the parties caused by the failure of the lower court to grant the adjournment; see McColl v Lehmann; Maxwell v Keun; Walker v Walker; Bloch v Bloch; State of Queensland v J.L. Holdings Pty Ltd.

Arika Onus v Sealey [2004] VSC 396

Magistrates’ Court Act 1989 – SECT 128

Power to adjourn proceeding
128. Power to adjourn proceeding

(1) The Court may, on the application of a party to a proceeding or without any such application, adjourn the hearing of the proceeding-

(a) to such times and places; and
(b) for such purposes; and
(c) on such terms as to costs or otherwise-

as it considers necessary or just in the circumstances.

(2) If at any time the Court adjourns the hearing of a criminal proceeding or commits a defendant to stand trial, the Court may-

(a) allow the defendant to go at large; or
(b) remand the defendant in custody; or
(c) grant the defendant bail or extend the bail of the defendant.

(3) If the Court has adjourned the hearing of a proceeding to a particular time, it may order that the hearing be held or resumed before that time.

(4) The Court may only make an order under subsection (3) with the consent of all the parties or on the application of a party who has given reasonable notice of the application to the other party or parties.


Date: 01/09/2009