38Re-opening of hearing in defendant's absence

38 Re-opening of hearing in defendant's absence

(1)  On an application under subrule (2) , any 2 justices jointly may set aside any one or more of the following:

(a) the dismissal of a complaint;

(b) a conviction for the simple offence set out in the complaint that was recorded in the absence of the defendant;

(c) an order arising from the hearing of a complaint made in the absence of the defendant.

(2)  An application to have a dismissal, conviction or order set aside by justices under subrule (1) must be –

(a) made in writing by the person –

(i) whose complaint was dismissed; or

(ii) against whom, or in the absence of whom, the conviction or order was made; and

(b) lodged with the clerk of the court where the complaint was dismissed or where the conviction or order was made; and

(c) supported by oral evidence or affidavit; and

(d) accompanied by proof of service on the other party of notice of the application to set aside.

(3)  For the purposes of subrule (1) , a dismissal, conviction or order may be set aside on the terms, as to costs or otherwise, that the justices think fit.

(4)  Despite any other provision of this rule, a conviction or order made in the absence of the defendant may be set aside without the appearance of either party if the consent of both parties is endorsed on the application.

(5)  After setting aside the dismissal, conviction or order, the justices may –

(a) proceed to hear and determine the complaint that was dismissed or the complaint in relation to which the conviction or order was made; or

(b) direct that –

(i) the complaint be reheard and determined at the time and place they specify; and