Part 5General provisions
Conduct of proceeding: Powers of court when defendant does not appear
121Non-attendance of defendant charged with offence in category 2, 3, or 4: after plea is entered but before trial or sentencing
This section applies to any hearing, other than a trial or a sentencing hearing, if—
- the offence charged is a category 2, 3, or 4 offence; and
- a not guilty plea has been entered to the offence charged; and
- the defendant is required, under section 118, to be present at the hearing; and
- the prosecutor attends the hearing, but the defendant does not.
When this section applies, the court may do either or both of the following:
- proceed in the absence of the defendant:
- issue a warrant to arrest the defendant and bring him or her before the court.
Despite subsection (2), the court must not proceed with a hearing in the absence of the defendant if the court is satisfied that it would be contrary to the interests of justice to do so.
Without limiting the matters the court may consider in making its decision under subsection (3), the court must consider the following factors:
- any information available to the court about the reasons for the defendant's absence:
- any issues that the defendant has indicated are in dispute and the extent to which the defendant's evidence is critical to an evaluation of those issues:
- the likely length of any adjournment, given the particular interests of victims and witnesses that a trial takes place within a reasonable time of the events to which it relates and the effect of any delay on the memories of witnesses:
- the nature and seriousness of the offence:
- the interests of any co-defendant.
If the hearing is in front of a Registrar under section 57(4), the Registrar may—
- proceed with the hearing in the absence of the defendant; or
- issue a warrant to arrest the defendant and bring him or her before the court.