The first time a defendant stands in the dock is usually brief and often confusing. What the magistrate does depends on the kind of charge, and knowing the sequence in advance makes the day easier.
Before the case is called
Regulation 11 requires the Clerk to enter the day’s informations and complaints in the Register of Decisions in the order the summonses or warrants reached the Clerk, and cases are called in that order unless the Court decides to take some first. A defendant in custody is brought up from the cells; a defendant on summons or bail waits in the public part of the court. Section 57 requires the Court to sit in open court. If no magistrate competent to hear the case is present when the summons is returnable, section 92 lets any magistrate present, or after an hour the Clerk, postpone the hearing to the next court day.
The plea for a summary charge
(1) At the time appointed for the hearing of an information of a simple offence or an indictable offence triable summarily, the defendant shall be informed in open court of the offence with which he is charged as set out in the information, and shall be called on to say if he is guilty or not guilty of the charge.
(2) When the defendant is called on under Subsection (1), the hearing is deemed to commence.
Constitution section 37(4)(b) requires the charge to be explained in a language the defendant understands and in detail, and section 37(4)(d) gives a free interpreter to a defendant who cannot understand or speak the language of the court. A defendant who does not understand the charge should say so before pleading. The plea has three possible outcomes:
| Plea | What follows | Detail |
|---|---|---|
| Guilty | The facts are read; if they support the charge the Court convicts and proceeds to sentence, or adjourns for a pre-sentence report | Pleading guilty |
| Not guilty | The Court hears the case under s 129, or more usually fixes a trial date and adjourns under s 89 | Pleading not guilty |
| No plea, or an equivocal answer | Treated as not guilty; the Court may also adjourn for the defendant to get advice | Section 37(4)(c): adequate time and facilities to prepare a defence |
A defendant is not obliged to plead on the spot. Section 89(1) allows the Court to adjourn before or during the hearing of an information, and a first appearance is commonly a “mention” at which the defendant asks for an adjournment to consult a lawyer or the Public Solicitor. During the adjournment the Court may let the defendant go at large, commit him, or grant bail (section 89(2)).
The first appearance on an indictable charge
There is no plea to an indictable offence in the District Court. The Court’s function is the committal inquiry under Part VI. At the first appearance the magistrate will confirm the charge, check that the defendant was lawfully brought before the Court, fix a date for the police to serve the hand-up brief, and adjourn. Section 75 allows an adjournment of not more than 15 days at any one time in an indictable matter, with the defendant remanded in custody or released on bail. Section 61(2) requires the defendant’s personal attendance throughout. See committal proceedings.
Bail at the first appearance
An application for bail may be made to a court at any time after arrest or at any stage of a proceeding (s 6(1)). Where a person is in custody, the court shall, on each occasion that it adjourns the proceedings before conviction, consider and accordingly grant or refuse bail in accordance with section 9 (s 7).
So a defendant in custody does not need to apply; the magistrate must consider bail on every adjournment. The Magistrates’ Manual recommends that an unrepresented defendant in custody be asked whether he wishes to apply. The exceptions are the offences in section 4 of the Bail Act, for which only the National Court can grant bail. See can the District Court grant me bail.
Things to raise at the first appearance
Several objections lose their force once a plea is entered: that the information was laid out of time under section 36, that it is duplicitous under section 29, that the Court is the wrong venue under section 122, or that the charge discloses no offence. Section 245 sustains a conviction against a defendant who was present and did not object, and on appeal section 230(2) requires a substantial miscarriage of justice. If any of these applies, say so when the charge is read, and ask for an adjournment to argue it if necessary.
If you are not there
For a fine-only offence the Court may hear the case in your absence under section 125(a); for anything carrying imprisonment it will issue a warrant under section 125(b) or section 93. See ignoring a summons. If the prosecutor is absent, section 124 requires the Court to dismiss the information unless it thinks proper to adjourn; see what happens if the prosecutor does not turn up.
The District Courts Act and Regulation are not on PacLII; both are on vLex (Act, Regulation).
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.