Prosecutors miss court dates: the file is not ready, the officer is on another matter, the witnesses have not come. The Act treats a prosecutor’s absence more strictly than a defendant’s, because the defendant is the one who has been compelled to attend.
The rule
If, on the day and at the place appointed by a summons for hearing an information of a simple offence or an indictable offence triable summarily (a) the defendant attends voluntarily in obedience to the summons, or is brought before the Court by virtue of a warrant; and (b) the complainant, having had notice of the day and place, does not appear by himself or by his legal representative, the Court shall dismiss the information unless for some reason it thinks proper to adjourn the hearing to some other day.
The default outcome is dismissal; adjournment is the exception, and the Court must have a reason for it. In Getsi v PNG Harbours Board [1993] PNGLR 408 Doherty J described section 124 as mandatory, providing for dismissal of informations where the informant does not appear, and held that section 260A applies whether the information is “dismissed” or “struck out”.
When the Court will adjourn instead
| Pointing to adjournment | Pointing to dismissal |
|---|---|
| First listing; a message has been received explaining the absence | Repeated non-appearances on the same charge |
| Serious charge where the public interest in a hearing is strong | Minor charge; the defendant has travelled and lost wages to attend |
| The prosecutor is in another courtroom and can be found | No explanation at all |
| Defendant consents, or is on bail and unaffected | Defendant in custody for the charge |
Section 260(1)(e) allows the Court, where a case is adjourned, to order that the costs of and occasioned by the adjournment be paid by one party to another. A defendant who has come from a distance and is sent away because the prosecutor did not appear should ask for those costs, which the Magistrates’ Manual reminds magistrates an unrepresented defendant may not know to claim.
At an adjourned hearing
If, at the time and place to which a hearing of an information for a simple offence is adjourned, either or both of the parties do not appear, the Court may proceed to the hearing as if the party were present or, if the complainant does not appear, the Court may dismiss the information with or without costs.
So the same result is available at a resumed hearing, and the express reference to costs confirms that a dismissal for non-appearance can carry them.
The effect of a dismissal
(1) If the Court dismisses an information, complaint or set-off, it shall make an order of dismissal and shall, on application, give to the defendant a certificate of the order signed by a magistrate or the Clerk.
(2) A certificate under Subsection (1) is, on its production, without further proof, a bar to any other information, complaint or legal proceeding in any Court in the country (other than proceedings on appeal) for the same matter against the same party.
A dismissal under section 124 is not marked “without prejudice”. The Act draws no distinction between a dismissal on the merits and one for non-appearance, and section 162(2) bars a fresh charge for the same matter once a certificate is produced. Constitution section 37(8) adds the double jeopardy protection for a person acquitted by a competent court. A defendant whose charge is dismissed should apply for the certificate at once and keep it; the Manual notes that section 219(2) prevents the State appealing against the dismissal of an information, so the matter ends there unless the Attorney-General intervenes under section 219(3) on a point of public importance.
Costs against the informant
Section 260(1)(b) allows the Court, where it dismisses an information, to order the informant to pay the defendant such costs as it thinks just and reasonable. Section 260A requires the Court first to consider whether the prosecution acted in good faith, whether it had sufficient evidence when it began, whether it investigated reasonably, and the defendant’s own conduct, and provides that there is no presumption for or against costs and that dismissal alone does not entitle the defendant to them. Getsi held that the Court must work through section 260A before ordering costs under section 260(1)(b), and that section 260A applies to all informants, not only the police. It also held that costs cannot be ordered against a person or body that was never made a party, such as the informant’s employer. See costs for an acquitted defendant.
Committal proceedings
Section 124 is in Part VII and applies to summary charges. In a committal the Court’s duty under section 95 is to consider the evidence offered; if the prosecution offers none because no one appears, and adjournments under section 75 have been exhausted, the Court should discharge the defendant for want of sufficient evidence. Section 261 provides that no costs can be ordered against the complainant on the dismissal of a charge of an indictable offence, and a discharge at committal is not a bar to the Public Prosecutor indicting under section 526 of the Criminal Code. See the ex officio indictment.
Civil complaints
The civil equivalent is section 144: where the defendant attends and the complainant does not, the Court dismisses the complaint and hears any set-off, or adjourns on terms. 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.