Imagine it’s the day of the court hearing or jury trial and the defendant is nowhere to be found.
Or perhaps the proceedings have already started, but the defendant does a ‘runner’ or behaves in such a way that the case cannot keep going with him or her there.
In these situations, the court must decide whether the proceedings can continue in the defendant’s absence.
The Local Court
For ‘summary offences’ – which are those that stay in the local court – and certain ‘indictable offences’ (more serious offences) where the defendant chooses to keep the case in the local court, the rules are contained in section 196 of the Criminal Procedure Act.
Section 196 says that a case can proceed in the defendant’s absence if the court is satisfied that he or she had reasonable notice of the time, date and place of their court date.
If the case goes ahead and the defendant is convicted, but it turns out that he or she had valid reasons for not attending court, a ‘section 4 annulment application’ can be made to quash (delete) the conviction and reopen the case.
Valid reasons for not turning up may include a serious accident, sudden serious illness, personal tragedy, or if it the defendant could not reasonably have been aware of the court date.
Section 4 annulment applications can be made up to 2 years after the conviction.
District and Supreme Courts
There is no equivalent to section 196 in the higher courts; and judges have grappled for generations about what to do when a defendant fails to show.
The legal starting point is an interesting British case from the late 1800s.
R v Berry (1897)
The defendant in that case, William Berry, went to great lengths to create a scene in the courtroom in an attempt to prevent his trial going ahead.
Mr Berry displayed amazing acrobatic skills – leaping in “an almost miraculous manner” over the heads off two barristers who were seated near the dock, landing on the bar table, then starting to strip while screaming hysterically. He was quickly marched off to the cells, and brought to court the next day in handcuffs.
Mr Berry continued his antics upon return- struggling with wardens, yelling and stomping his feet incessantly. The judge once again ordered him to be removed, but this time directed that the proceedings continue in his absence. Mr Berry was ultimately found guilty.
What have Australian courts said?
There are few constitutionally protected rights in Australia, but one of them is the right to a fair trial.
A trial ‘in absentia’ – where the defendant is not present – is an obstacle to this fundamental principle.
Australian courts have found that a person cannot be convicted in absentia in the higher courts, except in two situations:
- Where the defendant conducts themself in such a way that the trial cannot be conducted in their presence; or
- After the trial has begun, where the defendant does not appear and thereby waives the right to be present
In NSW, the Court of Criminal Appeal ruled that a trial cannot start in the absence of a defendant; R v McHardie and Danielson.
In cases where a defendant conducts him or herself in such a way that the trial cannot continue in their presence, the judge has discretion regarding whether to proceed in their absence. Courts have found that situations where a trial can so continue are “rare and exceptional”, especially if the defendant is unrepresented.
An authoritative English case which has been quoted with approval by Australian courts held that courts must be fair to both the defence and the prosecution. The case found that judges should consider a range of factors when deciding whether to proceed, including:
- The nature and circumstances of the defendants behaviour; including whether it was deliberate and voluntary, and amounts to a waiver of the right to be present;
- Whether an adjournment may result in the defendant appearing and not disrupting the proceedings;
- The likely length of any adjournment;
- Whether the defendant, although absent, wishes to be legally represented, or has by his or her conduct waived the right to legal representation;
- Whether an absent defendant’s lawyer is able to receive instructions
- The extent of the disadvantage to a defendant, especially due to not being able to give their version of the events;
- The risk of the jury reaching an improper conclusion about the absence of the defendant;
- The interests of the public and witnesses that a trial should proceed within reasonable time of the alleged events;
- The effects of a delay on the memories of the witnesses; and
- Where there is more than one defendant and not all have absented themselves, the undesirability of separate trials and prospect of a fair trial for the defendants who are present
The case of R v Gee (2012)
In the case of R v Gee (2012), the South Australian Supreme Court was called upon to decide whether a trial should go ahead despite the defendant, Mr Gee, not turning up.
The initial District Court Judge recognised his own discretion to proceed without the defendant, but declined to exercise it. In reaching that decision, the Judge expressed the view that he would need to act in a way that was incompatible with his role as a judge in order to proceed.
On appeal, the Supreme Court ruled that the Trial Judge made an error by not exercising his discretion to proceed, primarily because the defendant was aware of his trial date, but decided not to attend nor obtain legal representation.
The case was sent back to the District Court to hear the prosecution application to have the case heard in the absence of the defendant.
So in a nutshell – while trials cannot start in the absence of the defendant in NSW, the law is not so settled in other parts of Australia. And in cases where the defendant acts in such a way that the trial cannot continue in his or her presence, judges must consider a range of factors before deciding whether to proceed without them.