Nou v State [1990] PGNC 77; N892 (7 May 1990)

N892

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO: 167/89

TAMA NOU

Waigani
Sheehan J

13 March 1990
7 May 1990

APPEAL - District Court - Traffic Charge - Appellant fails to appear Prosecutor obtains estreatment of bail and dismissal of informations power of Magistrate to dismiss charges in absence of defendant.

Counsel:
Mr Gene for the Appellant
J Pambel for the State

DECISION

SHEEHAN J: The Appellant is a bus driver charged with driving through the traffic lights at the Taurama Intersection. Contrary to Section 129(2) and 243 of the Transport Regulations. Simply put he drove through the intersection when the light were against him.

When the matter first came before the District Court on the 29th May 1989, the Appellant appeared and pleaded not guilty to the charge. The matter was then adjourned for hearing on the 28th July. On that day the Appellant did not appear whereupon according to the records, the Prosecution applied for the matter to be struck out and the appellant’s bail to be forfeited.

The Learned Magistrate, granted that application and ordered that the matter be struck out and the appellant’s K100.00 bail be forfeited to the State.

This appeal was then lodged upon the following grounds:-

"1. that there was an error in law on the order for dismissing the information in that the magistrate did not have the power to make such order in the absence of the defendant/appellant.

2. that the order for the (forfeiture) of bail was harsh and oppressive."
   

Under District Courts Act Section 131 sets out the procedure that a magistrate may follow when faced by the absence of a defendant properly summonsed to attend a hearing.

If, at the time and place appointed by a summons for hearing and determining an information of a simple offence or an indictable offence triable summarily, the defendant does not appear when called, and proof is made to the court on oath or in accordance with Section 55 of due service of summons on the defendant a reasonable time before the time appointed for his appearance, the court may:

(a) in the case of a simple offence the maximum penalty for which does not include imprisonment (other than for default in payment of a fine) - proceed ex parte to hear and determine the case in the absence of the defendant; or

(b) in the case of an information of a simple offence or an indictable offence triable summarily - on oath being made before it, substantiating the matter to its satisfaction, issue its warrant for the arrest of the defendant to bring him before a court to answer to the information and to be further dealt with according to law.

That section empowers a magistrate to act in a penal way against a defendant in his absence and without hearing from him. While this may seem to conflict with the principle that no-one may be tried in his absence, this legislation is practical and does not involve any breach of constitutional rights. As stated in R. v. Mitchell & Another [1973] PNGLR 461." The procedure laid down by Section 131 is a well established and unobjectional procedure for the hearing of prosecution for summary matters where the defendant fails to appear, and the practice does not involve a denial of the fundamental rights of the protection of the law".

But there is no legislation, and none needed, to empower Courts to act in a defendants absence and make orders which do not involve trial of evidence, conviction or punishment, for a particular offence.

Therefore it is certainly not correct to say that a magistrate does not have the power to make an order dismissing a charge in the absence of the defendant. The presence of a defendant is certainly not necessary for a magistrate to dismiss information against him. To hold otherwise would mean that any information or charge against absconding defendants must remain outstanding ad infinitum.

Again as regards bail, it cannot be said that when a defendant, bailed to attend a hearing of an information against him, fails to show, and no reason or excuse is offered, that forfeiture of bail is harsh and oppressive. In this case the Appellant answered his bail on the 29th May and was advised of the date fixed for hearing of his case. The record shows specifically that the bail was extended to that new date. When he failed to attend the bail was estreated.

Bail of course is not a penalty imposed for a fault. It is a discretionary amount fixed by the bailing authority in an endeavour to ensure the attendance of a person at Court. It is generally a figure commensurate with the nature of the offence and sometimes with the possible penalty that might ensue from a conviction. A bail bond is contractual in nature in that the defendant stipulates himself bound in a sum of money (in this case K100.00) to be forfeit in the event that he fails to answer bail.

But while the bond is imposed on a person (rather than offered contractually) it does not and need not in fact place any real burden on a person. He is already under summons, a direct Court Order, to attend at trial and the bail is imposed to reinforce the need for that attendance. The obligation of the bailee remains the same with or without the bond - namely to carry out the Court Order, to attend that trial. By doing that, by answering bail his obligation is fulfilled and the bond acquitted.

It is therefore just not true to say, when a person fails without excuse to attend his trial or to answer his bail, that the exercise of forfeiting bail is harsh and oppressive.

As I see it, the magistrate had full powers to make either of the orders that he did. And I would add that I have little sympathy for a defendant who having failed to show, proceeds to appeal against results of his non appearance without any offering any explanation or apology for that absence.

But the underlying issue here is less concerned with the orders which the magistrate in fact made, than with questioning the propriety of a Prosecutor, faced with the absence of a defendant, asking the Court to dismiss the charge and then seeking forfeiture of the bail. The criticism is that in effect the prosecutor was able to decide that a forfeiture of K100 bail would be sufficient penalty for the charge that in fact was withdrawn.

The Police in the normal course, charge a defendant and bail him to appear on a fixed date on a sum of money. But if he fails to appear and the Police as a matter of course seeks dismissal of the charge and forfeiture of the bail by way of "a substitute penalty" that seems to be wrong in principle. You cannot have a fallback penalty in the form of a bail forfeiture. Particularly a bail set by the Police with the Police exercising the discretion not to proceed when the defendant fails to appear.

It is the District Court Magistrate to whom Parliament has given the discretion regarding penalty in these matters. And to my mind the procedure on the failure of a defendant to appear on bail would be for the prosecution to first advise the magistrate whether it is in a position to proceed with the matter or not, that is proceed under Section 131 of the District Court’s Act by having the matter heard ex parte or whether it seeks a warrant on the bail bond to compel the defendant’s attendance. Once the magistrate is apprised of the prosecution stand he will be in a position to take appropriate action on both the information and the bail bond.

To obtain efficiency in the Traffic Court it is not surprising that a practice of the sort shown here might come about and this Court will not look askance, at a practical solution to dealing with the multitude of absconding defendants’ cases which can otherwise blockup Court time. However that system must be one where the discretion as to penalty and as to bail forfeiture not only remains with the District Court but is seen to be so.

In this case there has been no explanation for the Appellants absence on the prescribed date. No underlying excuse which might warrant a further examination of this matter. Accordingly it may be inferred that the Appellant’s absence was deliberate. In such a case the forfeiture of the bail set was inevitable. The choice of the Prosecutor not to proceed was within his discretion and it was open to the Learned Magistrate to make the order that he did.

I see no miscarriage of justice warranting the interference of this Court and appeal is dismissed.

Lawyer for the Appellant: Public Solicitor
Lawyer for the Respondent: Public Prosecutor