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Chapter 18: Adjournments

 Table Of Contents  

[18.0] Introduction 

In R v Niger Pitisopa (Unrep. Criminal Appeal Case No. 120 of 1999) Kabui J stated at page 8: 

'It is in the public interest that criminal charges against accused persons be dealt with by the Courts as soon as possible. It is the duty of the Crown to ensure that the process of criminal law justice is activated in a manner that is consistent with the provisions of section 10 of the Constitution.' 

The law relating to a 'Defendant's Right To A Fair Trial Within A Reasonable Time' is examined commencing on page 148. 

Although the prosecution and the defence may consent to an 'adjournment', it is the Court which will make the final decision.

[18.1] Criminal Procedure Code 

Section 191 of the Criminal Procedure Code (Ch. 7) states: 

'Before or during the hearing of any case, it shall be lawful for the court in its discretion to adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective advocates then present, and in the meantime the court may suffer the accused person to go at large, or may commit him to prison, or may release him upon his entering into a recognizance, with or without sureties at the discretion of the court, conditioned for his appearance at the time and place to which such hearing or further hearing is adjourned: 

Provided that no such adjournment shall be for more than thirty clear days, or if the accused person has been committed to prison, for more than fifteen days, the day following that on which the adjournment is made being counted as the first day.' (emphasis added) 

The law relating to the 'Punctuality At Court Of Prosecutors' is examined commencing on page 126. 

See also: sections 52 & 53 of the Magistrates' Courts Act (Ch. 20) & section 55 of the Interpretation & General Provisions Act (Ch. 85).

[18.2] Discretionary Power 

In Tatau v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 289 of 1992) Palmer J stated at page 9: 

'The court's primary duty is to ensure that the trial is conducted fairly […]. 

In its supervision of the hearing or trial the court often has to rule on applications for adjournments by learned counsels and prosecutors. 

[…] 

Section 190 [now section 191] gives a discretionary power to the magistrate. That discretionary power however must be exercised in such a way as to ensure that the accused has a fair trial according to law.' (emphasis added) [words in brackets added]

A Court has an inherent discretionary power to 'adjourn' any matter before it, but it must exercise that power judicially by weighing several competing considerations, which include the interests of the defendant and of justice itself, see Carryer v Kelly (1969 – 1970) 90 WN (Part 1) NSW 566 & R v Maher [1987] 1 QdR 171. 

Rigid rules of fixed formulae cannot be prescribed to limit the judicial discretion. The concern is to do justice between the parties, see Appleton v Tomasetti (1983) 5 ALR 428. 

In R v Swansea Justices & Davies, Ex parte Director of Public Prosecutions & R v Swansea Justices & Phillips, Ex parte Director of Public Prosecutions (1990) 154 JPR 709 the Court held: 

It was often a mistake to lay down rigid principles as to the way in which a court should exercise its discretion to conduct the proceedings before it. The principle which should always guide justices was that they must take care to observe the interests of fairness towards both sides. The public had an interest in ensuring that properly brought prosecutions were conducted in court just as much as the defendant was entitled to present his/her case to the fullest advantage. The Court did not lay down any rigid formula because each case was different and must be decided on its own facts.

Mustill LJ, with whom Schiemann J concurred, stated at page 712: 

'In the context of adjournments, the justices will, in order to maintain the balance of fairness, wish to take into account all the circumstances including the practicality to one side or the other of putting forward his or her case adequately if the adjournment is refused. The court will also want to consider questions such as the passage of time, also whether this is the first or only one of many occasions on which an indulgence by way of adjournment has been requested, and also whether the party asking for the adjournment is in fault in not being in a position to proceed at once. I emphasise in relation to the latter consideration that it is only one of the factors to be taken into account. The power to refuse an adjournment is not a disciplinary power to be exercised for the purpose of punishing slackness on the part of one of the participants in the trial. The power to adjourn is there so that the court shall have the best opportunity of giving the fairest available hearing to the parties.' (emphasis added) 

Appellate courts ought to be very slow to interfere with the exercise of a discretion on a question as to an 'adjournment'. However, if the result of the order made in the inferior court is to defeat the rights of the parties altogether and the appellate court is satisfied that the effect of the order is that injustice has been done, then the court has the power to intervene and ought to do so, see Maxwell v Keun [1928] 1 KB 645 at pages 653 & 657. 

See also: Block v Block (1981) 55 ALJR 701 at page 703 & Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137.

[18.3] Each Application To Be Considered Separately 

In R v Aberdare Justices, Ex parte Director of Public Prosecutions (1990) 155 JP 324 the case involved a charge which had several adjournments and which the court file was marked "must proceed" on the next occasion. On that occasion the prosecution applied for a further adjournment because a witness was unavailable. The defence objected and the application was refused. 

The Divisional Court held (per Bingham LJ): 

Circumstances change and it is incumbent on any bench to have regard to the situation which actually presents itself on the day of decision.

[18.4] Need For Evidence 

In R v Jones [1971] VR 72 the Court held: 

Many applications for adjournment are made which are plainly without foundation. If these applications are to be made in a bona fide way, then we think it is highly desirable that they should be supported by evidence, either verbal evidence or affidavit. 

Prosecutors are to outline clearly the reason why an 'adjournment' is being sought. As regards 'Incomplete Investigations' refer to page 395.

[18.5] Applications By Defence Specifically 

In Cameron v Cole (1944) 68 CLR 571 the High Court of Australia held at page 589: 

'It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given reasonable opportunity of appearing and presenting his case.' (emphasis added) 

In R v Thames Magistrates' Court, Ex parte Polemis (1974) 2 AllER 1219 the Court of Appeal held: 

If a defendant in a criminal case is not given a reasonable chance to present his/her case it amounts to a breach of natural justice. Justice must be seen to be done. 

Section 198 of the Criminal Procedure Code (Ch. 7) states: 

'(1) At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross – examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any). 

(2) If the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of such witnesses is not due to any fault or neglect of the accused person, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process, or take others steps, to compel the attendance of such witnesses.' (emphasis added) 

Evidence is 'material' if it is relevant to an issue in the case, see R v Reading JJ, Ex parte Berkshire County Council [1996] 1 CrAppR 239;

[18.6] Incomplete Investigations 

In Weary v Stok (1986) 3 MVR 411, Pidgeon J, sitting alone, held: 

If there was an application for an adjournment by the complainant of a minor charge, the grounds of which were based on inefficiency or indolence on the part of the complainant and the result of the adjournment would cause wasted time and consequent delays to other litigants in the court system, combined with significant inconvenience to the defendant, then in my view the public interest would require that the matter be not adjourned. […] I would regard the matter of the charge and its degree of seriousness to a factor to take into account. 

In relation to 'incomplete investigations', the prosecutor is expected to: 

[i] consult the Arresting / Investigating Officer to determine: 

[a] the reasons why the investigation is incomplete; 

[b] what further investigation needs to be completed; and 

[c] what time period the Arresting / Investigating Officer requests in order to complete the investigation; and

All such details should be recorded in the Docket on the 'Diary Of Action Taken'; 

[ii] advise their Officer – in – Charge if such information is not provided; 

[iii] advise the court comprehensively of the reasons for the application for 'adjournment'; and 

[iv] formally advise the Arresting / Investigating Officer of the date that the case was adjourned to, if granted, and record such notification in the Docket on the 'Diary Of Action Taken'.