The right to be present at one’s own trial is one of the few procedural rights the Constitution spells out. It shapes what the District Court can do when a defendant does not come.
The constitutional rule
Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment (except in default of payment of a fine) to be heard summarily in his absence if it is established that he has been duly served with a summons.
The Magistrates’ Manual reads this as three exceptions: consent, disruptive conduct, and the fine-only offence heard on proof of service. Everything in the Act must fit inside them.
What the Act allows
| Provision | Rule |
|---|---|
| s 125(a) | For a simple offence whose maximum penalty does not include imprisonment, on proof of service the Court may proceed ex parte to hear and determine the case |
| s 125(b) | For any other simple offence or an indictable offence triable summarily, the Court’s course is a warrant, not a hearing |
| s 61(2) | Nothing in the Act dispenses with the personal attendance of a defendant charged with an indictable offence, or authorises such a charge to be heard in his absence |
| s 130 | At an adjourned hearing of a simple offence the Court may proceed as if an absent party were present; the Manual reads this subject to the constitutional exceptions for any charge carrying imprisonment |
| s 132A | Traffic Infringement Summons: the case is called after 14 days if the fixed sum is unpaid; the paragraph that once deemed a plea of guilty on non-appearance is declared unconstitutional |
What an ex parte hearing must involve
The Public Solicitor referred to the Supreme Court provisions of the Motor Traffic Act and section 138A(1)(b) of the District Courts Act which required a court, on proof of service of a traffic infringement summons and non-attendance, to record a plea of guilty. The Court held them invalid as inconsistent with sections 37(4) and 37(5): a person is entitled to have the charge proved, and a law cannot substitute a deemed admission for proof. The Manual draws the practical rule: in an ex parte hearing under section 125(a) the prosecution evidence must be given on oath, and the magistrate must decide whether the charge is proved.
Consent
A defendant may consent to the hearing continuing in his absence. The Manual’s view is that for a charge carrying imprisonment the consent must be communicated in a positive way, in writing or through a representative; failure to appear after service is not consent. A defendant who wants a minor matter dealt with without attending should write to the Clerk saying so and, if pleading guilty, setting out anything in mitigation. A representative under section 59 may appear for an absent defendant, and section 61(1) speaks of parties appearing “personally or by their legal representatives”.
Removal for disruptive conduct
The second constitutional exception applies where the defendant’s own conduct makes it impracticable to continue with him present. Section 277 gives the District Court power to exclude from the Court a person who wilfully interrupts the proceedings or behaves disrespectfully, and to convict him of an offence for doing so. A defendant removed under that power cannot complain that the trial went on without him.
Setting aside a conviction in absence
A conviction or order made when one party does not appear may be set aside on application to the Court on such terms as to costs or otherwise as the Court thinks just, and the Court, on service on the other party of such notice as it directs, may proceed to hear and determine the information, or adjourn it.
The Manual lists the considerations: whether the defendant has a reasonable explanation for not attending, whether he appears to have a good defence, and the seriousness of the charge. The National Court in Commodity Development v Karai [1994] PNGLR 463 applied the same three-part test to a civil ex parte order. See setting aside an ex parte order. An appeal under section 219 is the alternative, and must be lodged within one month.
Civil cases are different
Section 37(5) protects a person charged with an offence. A civil complaint may be heard in the defendant’s absence under section 143 whenever service 72 hours beforehand is proved and no ground for adjournment is shown, and a default summons may result in an order without any hearing at all. See non-appearance in civil cases.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.