FACT SHEET 6: PROCEEDING IN ABSENCE OF DEFENDANT

What is the general proposal?

To give courts a greater ability to proceed in the absence of the defendant when the defendant fails to attend their trial.

Why change the law?

Currently, the court can proceed in the absence of the defendant only if:

o The court has given them permission not to be there.

o The defendant interrupts the proceeding so much that it is impracticable to continue with them there.

o A defendant has been charged with a non-imprisonable offence, in which case they may be tried and sentenced in their absence.

When a defendant fails to appear at a pre-trial hearing or a trial without a valid reason (eg, illness or transport problems) this causes:

Unnecessary delay.

Disruption to the court system.

Additional stress for victims.

Inconvenience to witnesses and jurors.

Some indication of the number of cases affected in this way is provided by the number of warrants to arrest for non-appearance. In 2008, the courts issued warrants to arrest in:

18% (or 1,667) of summary (judge-alone) cases.

16% of all jury trial cases prior to committal.

19% of District Court jury trial cases, after committal.

10% of High Court jury trial cases after committal.

How?

The courts will have a greater ability to proceed with a case involving any offence where the defendant fails to appear.

Once the defendant has made their plea of guilty or not guilty, the court must continue with the trial (but not sentencing) without the defendant, if:

The court does not consider the defendant has a reasonable excuse for their absence.

Proceeding without the defendant is not contrary to the interests of justice. When the defendant is tried and convicted in their absence, the court will be able to set aside the conviction and order a retrial if the court is satisfied that the defendant has established that they have a defence that would have had a reasonable prospect of success if they had attended the trial.

Benefits of proposal

This proposal should be viewed alongside other case management proposals. It will:

Prevent a defendant dictating when the case against them will proceed.

Reduce the stress to victims by ensuring the trial proceeds on the scheduled date

and that cases are disposed in a timely manner.

Reduce inconvenience to victims, witnesses, and jurors.

Avoid problems with multi-defendant trials when one of the defendants fails to appear and the other defendants are ready to proceed.

International comparisons

Canada, Australia, and the United Kingdom allow trials to commence and continue in a defendant’s absence.

There is statutory backing to do so in Canada1 and in the Magistrates’ Court in the United Kingdom2. In Australia3 and in the Crown Court in the United Kingdom,4 the practice of proceedings in the defendant’s absence has developed through case law.

1 Criminal Code 1985, s475

2 Magistrates’ Courts Act 1980, s11(1)

3 See, for example, R v Jones [1998] SASC 7021

4 R v Jones [2003] 1 AC 1

ends

© Scoop Media