DC Procedure II

Adjournment

The District Judge may transfer or adjourn any proceedings or business to a later date or another place in the District. Adjournment may be on such terms as he may think fit. Proceedings may be adjourned generally with liberty to re-enter by giving not less than ten days’ notice to the other party and lodging a copy of the notice with the District Court Clerk.

Where a person who has been summonsed does not appear in response and the court because of the gravity of the offence,    considers it undesirable in the interest of justice, continue the case in the absence of the accused, may adjourn the proceedings to enable the person to be notified.  A form of notice may be served on the person if the court shall direct.

Applications may be made for adjournments, as in other proceedings. The Court has considerable discretion. The application may be refused, and the Judge may proceed to hear the case, even in the absence of the accused.

Adjournment Issues

The District Judge shall have regard to the gravity of the offence, and considerations of fair procedures in deciding whether or not to grant an adjournment.  He should consider whether the accused has had an opportunity to attend or whether he is at fault in not attending. In an appropriate case, a decision on the exercise of jurisdiction may be challenged on judicial review.

Courts will sometimes grant an adjournment on the basis that it is the last and peremptory adjournment. A peremptory adjournment is not absolutely final, and it is not binding on the court so granting the adjournment.  However, a Judge is likely to uphold the peremptory nature of the adjournment in most cases.

Where a case is fixed for hearing, the parties should indicate to the court the time considered likely for the hearing. If it is likely to take more than two hours, it should be fixed for a special date. Generally, where a date is fixed, no adjournment will be granted.

Exceptionally, an application for a further adjournment of a fixed date may be heard, provided at least seven days’ notice is given and two days’ notice to the other party.

Legal representation is a key element of fair procedures. Generally, a person will be entitled to an adjournment for the purpose of legal representation, where a custodial sentence is possible. Fair procedures may also require adjournment to secure the attendance of witnesses.

Generally, a Judge is more likely to grant an adjournment where it is agreed by both parties. Cases may be adjourned where a challenge is ongoing in respect of the validity of particular legislation under the Constitution.

An adjournment may be granted in aid of the prosecution. Alternatively, the Court may refuse the adjournment and dismiss the complaint about want of the proof. The Court may order that a party shall pay the costs and expenses and witness expenses incurred in relation to an adjournment.

Amendment Summons

The Judge may amend any summons by striking out parties or amending defects as may be necessary for the purpose of determining the real question and issues at issue between the parties. If the amendment is one that may prejudice any party to the proceedings, the Judge may adjourn the proceedings or if necessary, dismiss the proceedings.

A Judge has no jurisdiction to amend the charge. Non-compliance with the rules do not render proceedings void. Technical errors and slips may be corrected

In the case of non-compliance with the court rules, the Judge may direct that the proceedings be treated as void or may amend them or deal with them in such manner as the Judge thinks fit.

No variant between the complaint and the evidence adduced as to the time in which the offence is stated to have been committed is deemed material,  provided the information has been made and the complaint has been made within the requisite time.  A variance between the complaint and the evidence as to the place in which the offence was committed, is not deemed material, provided the offence was committed within the jurisdiction of the Judge or the accused resides in the area of that jurisdiction.

Defect and Omission

No objection is to be taken on the ground of defect in substance or in form or an omission in the summons warrant or document by which the proceedings was commenced, or any variance between the document and the evidence offered by the prosecutor. The Court may amend such summons, warrant, or document and proceed as if no defect or omission had occurred.

If in the opinion of the Court, the variance, defect or omission is one which misled or prejudiced the accused or which might affect the merits of the case, it may refuse to make such amendment and may dismiss the complaint either without prejudice to its being made again or on the merits as he thinks fit.  Alternatively, it may make such amendment on such terms as he thinks fit and adjourn the proceedings to any future day.

Witness Summons

A party desiring to secure the attendance of a person to give evidence in the District Court may apply to the Judge, Clerk or Peace Commissioner for the issue of a witness summons. A witness summons directs them to comply with the requirements thereof at the time and place stated.

The summons shall be signed by the Judge, Clerk or Peace Commissioner issuing it and the applicant should be issued a copy for service upon each person to whom it is directed. This copy shall be served at least three clear days before the date for the hearing. It may be served anywhere in the State.

Where a person fails to attend in response to a witness summons and no just excuse is offered, then upon proof of service, and upon information that the person is evading service, the Judge may issue a warrant for the arrest of the person concerned.  A direct application may be made on information on oath of a Judge that it is probable that a person who is able to give evidence will not attend without being compelled to do so, in which event a warrant may issue directly for the person’s arrest.

When arrested, a person shall be brought before the Judge and remanded in custody or if remanded, or remanded on bail on conditions of recognizance that he will attend and bring the requisite documents, papers etc.

Witness Issues

Where a prisoner is required as a witness, service of a witness summons may be made on the Director, Governor, or other people in charge of the prison or place of detention. A witness may not be held in protective custody or held without his consent.

Where a witness refuses to be examined on oath, refuses to answer lawful questions or refuses to produce documents, accounts and records, the judge may adjourn the proceedings for up to eight days and commit the witness to prison until the time of the hearing.  Imprisonment is not to extend in any summary case, for more than a month. A fine may be imposed.

The prosecution is not obliged to procure the attendance of witnesses favourable to the accused’s case. The applicant may be entitled to information in the prosecution’s possession regarding the whereabouts of witnesses. Where the prosecution has the statement of a person who may be in a position to give material evidence but whom they do not wish to call, they are under a duty to make the person available as a defence witness and to make statements available to the accused/defendant.