State v Gawi [1989] PGNC 121; [1988-89] PNGLR 118; N708 (6 April 1989)

N708

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

GAWI AND ANOTHER

Wewak
Bredmeyer J
5-6 April 1989

CRIMINAL LAW - Practice and procedure - Bench warrant - Where breach of condition of bail - Where "proceedings commenced before court" - Proceedings may commence with laying of information in District Court - Warrant may issue on presentation of indictment or of information laid - Arrest Act (Ch No 339), s 10(1).

CRIMINAL LAW - Bail - Breach of condition of - Bench warrant - Forfeiture of bail - Revocation of forfeiture - Procedure for - Bail Act (Ch No 340), ss 22(1), 22(3).

The Arrest Act (Ch No 339), s 10(1), provides:

"Where proceedings have been commenced before a court, other than a Local Court, and the court is satisfied that there are reasonable grounds for believing that a person is in breach of a condition of his bail granted in connexion with those proceedings, the court may issue a warrant for the arrest of that person."

The Bail Act (Ch No 340), s 22(1), provides:

"Forfeiture of security

(1) Where a person granted bail contravenes or fails to comply with his bail conditions, a court may make an order forfeiting the whole or part of the security given by him to secure his bail obligations."

Section 22(3) provides that a person who is affected by an order forfeiting his bail, "may within 14 days after the making of the order, apply to the court making the order for revocation of the order".

Held

(1) For the purposes of s 10(1) of the Arrest Act (Ch No 339), the "proceedings have been commenced" when an information is laid in the District Court: a committal before the District Court is the preliminary stage only of the one proceeding which is tried in the National Court.

The State v Kaliloboa [1986] PNGLR 143 at 144, distinguished.

Accordingly, where a person has been committed by the District Court to stand his trial in the National Court and is granted bail by the District Court to appear at the next sittings of the National Court, and he fails to appear, the National Court may issue a warrant for his arrest. The warrant may be issued under s 10(1) of the Arrest Act upon presentation of an indictment or of the information laid in the District Court.

(2) Under s 22(1) of the Bail Act, bail may be forfeited even though the defendant is not present. If it is later learned that the forfeiture was unfair, the accused may apply for revocation of the forfeiture under s 22(3) of the Bail Act within 14 days, or apply to the Supreme Court for a review of the decision under s 155(2)(b) of the Constitution at any time.

SCR Nos 12 and 12a of 1984; Re Parakas v The State [1985] PNGLR 224, applied.

Cases Cited

SCR Nos 12 and 12A of 1984; Re Parakas v The State [1985] PNGLR 224.
The State v Kaliloboa [1986] PNGLR 143.

Warrant for Arrest

The following judgment was delivered following argument addressed to the Court on the validity of an order for the issue of a bench warrant by the Court.

Editor's Note

An appeal to the Supreme Court has been dismissed.

Counsel

S Soi, for the State.
M Gene, for the accused.
Cur adv vult

6 April 1989

BREDMEYER J: An indictment was presented to me against Francis Tawia for armed robbery. He pleaded guilty, I convicted him and I adjourned the sentence for one week to obtain a probation report. I asked the prosecutor what had happened to the co-offenders, Junior Steven Gawi and Toliman Jiki Viru, who had been committed for trial at the same time as Francis Tawia. I was told they were on K100 cash bail from the District Court and had not answered bail. I therefore, ordered that a bench warrant issue for each man and that their bail be forfeited. Mr Gene then argued that I could not issue a bench warrant as no indictment had been presented to commence the proceedings as required by s 10 of the Arrest Act (Ch No 339) and cited to me a decision of Kapi Dep CJ in The State v Kaliloboa [1986] PNGLR 143. Mr Gene also cited to me s 21 of the Bail Act (Ch No 340) and SCR Nos 12 and 12a of 1984; Re Parakas v The State [1985] PNGLR 224. I therefore revoked my two orders and adjourned overnight to read the two cases and study this submission.

WARRANT OF ARREST

Section 10(1) of the Arrest Act (Ch No 339) provides:

"Where proceedings have been commenced before a court, other than a Local Court, and the court is satisfied that there are reasonable grounds for believing that a person is in breach of a condition of his bail granted in connexion with those proceedings, the court may issue a warrant for the arrest of that person."

Kapi Dep CJ in The State v Kaliloboa (at 144) said that proceedings are commenced in the National Court, for the purpose of applying for a bench warrant, when an indictment has been presented against the accused. "Until this is done, there are no proceedings before the Court on this matter."

It is true in one sense that criminal proceedings formally commence in the National Court with the presentation of an indictment. Once presented, an accused may, for example, before pleading, apply to the court to quash the indictment under s 558 of the Criminal Code (Ch No 262). Section 557(2) of the Code says that the trial itself begins when the accused is called upon to plead to the indictment. In another, broader sense, however, criminal proceedings, say on a charge of robbery, commence when the defendant is arrested or when information is laid against him in the District Court. For the purpose of considering bail, I think that that is the preferred interpretation. The proceedings start in the District Court on the laying of the information, the case then proceeds on a continuum, as it were, through the District Court and the National Court. I see the proceedings as one criminal proceeding processed by two courts rather than two proceedings in two separate courts. The committal is the preliminary stage and the National Court trial the final stage of the one proceedings. If the defendant charged with robbery is committed by the District Court to stand his trial in the National Court and is granted bail by the District Court to appear at the next sittings of the National Court, he has the obligation and duty to attend: see s 17 of the Bail Act. If he fails to attend, the court may issue a warrant for his arrest.

I would interpret s 10 of the Arrest Act, in the context of a man committed for trial in the National Court on a charge of, say, robbery and granted bail by the District Court, as follows:

"Where proceedings have been commenced before a [District] Court ... and the [National] Court is satisfied that there are reasonable grounds for believing that a person is in breach of a condition of his bail granted in connexion with those proceedings, the [National] Court may issue a warrant for the arrest of that person."

Support for that view is found, I think, in O 3, r 10(b), of the Criminal Practice Rules (1987) which were drafted presumably in full knowledge of Kaliloboa’s case. To show r 10(b) in its context, I quote the whole rule:

"Division 3 — Warrants of Arrest

10. An application for a warrant to arrest a person may be made:

(a) Where an indictment has been presented against such person who has failed to appear for his trial, by production to the judge of the original indictment or a copy thereof, without other evidence;

(b) Where an information has been presented by leave by order of the Court, at the time of granting leave or by evidence on oath showing:

(1) that the accused is likely to abscond, or;

(2) that his arrest is necessary in the interests of justice; or ..."

FORFEITURE OF BAIL

Section 22(1) of the Bail Act provides:

"Forfeiture of Security

(1) Where a person granted bail contravenes or fails to comply with his bail obligations, a court may make an order forfeiting the whole or part of the security given by him to secure his bail obligations."

Section 21(1) of the Bail Act provides:

"Revocation of Bail

(1) Where it is alleged that there are reasonable grounds for revoking bail granted to a person and the person appears or is brought before a court, the court shall consider whether the bail should be revoked."

Note that s 21(1) requires the defendant to be present whereas s 22(1) does not. I agree with the views of Amet J in SCR Nos 12 and 12a of 1984; Re Parakas v The State (at 230-231) that the forfeiture of the bail security does not require the presence of the accused nor the hearing of any evidence. If it is later learnt that the forfeiture was unfair because, say, the accused was ill in hospital when he was supposed to answer his bail, he may apply for revocation of the order under s 22(3) of the Bail Act within 14 days, or apply to the Supreme Court for a review of the decision under s 155(2)(b) of the Constitution at any time: see SCR Nos 12 and 12a of 1984; Re Parakas v The State (at 233) per Amet J.

Acting under s 10 of the Arrest Act, as I have interpreted it, and O 3, r 10(b), of the Criminal Practice Rules (1987), upon presentation of the information, I will issue warrants of arrest for the two accused. Acting under s 22(1) of the Bail Act, I forfeit the K100 cash bail paid by each man.

Orders accordingly

_______________________________

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.