Gawi and Viru v The State [1990] PGSC 12; [1990] PNGLR 88 (2 March 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 88 - Junior Steven Gawi and Toliman Jiki Viru v The State 

[1990] PNGLR 88

SC382

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GAWI

V

THE STATE

Waigani

Amet Woods Hinchliffe JJ

1 December 1989

2 March 1990

CRIMINAL LAW - Practice and procedure - Bench warrant - Committal by District Court - Failure to appear in National Court - When “proceedings” commenced before court - Proceedings commence when due to answer bail - Warrant may issue on failure to answer to bail or after indictment presented - Arrest Act (Ch No 339), s 10(1) - Criminal Practice Rules 1987, O 3, r 10.

CRIMINAL LAW - Bail - Breach of condition - Bench warrant - When may issue - Arrest Act (Ch No 339) - Criminal Practice Rules 1987, O 3, r 10.

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 Criminal Practice Rules 1987, O 3, r 10, provides:

N2>“10.    Division 3 — Warrants of Arrest

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.”

Held

N1>(1)      Where a person has been committed by the District Court to be tried in the National Court and is granted bail by the District Court to appear at the next sittings of the National Court, for the purposes of s 10(1) of the Arrest Act:

N2>(a)      the “proceedings” commence on the day the accused is due in court to answer bail as ordered by the District Court;

The State v Gawi [1988-1989] PNGLR 118, reversed in part.

The State v Kaliloboa [1986] PNGLR 143, not followed.

N2>(b)      the National Court may issue a warrant for the person’s arrest upon his failure to answer to the bail order of the District Court; and

N2>(c)      the National Court may issue a warrant for that person’s arrest at any time after presentment of the indictment.

N1>(2)      The Criminal Practice Rules, O 3, r 10(b), specifically authorises the court to issue a warrant for arrest of a person where there is an information by leave of the court by private prosecutors pursuant to s 616 of the Criminal Code: it does not refer to an information presented in the District Court.

Cases Cited

R v West [1897] UKLawRpKQB 179; [1898] 1 QB 174.

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

State, The v Gawi [1988-89] PNGLR 118.

State, The v Kaliloboa [1986] PNGLR 143.

Appeal

This was an appeal against an order of the National Court revoking the bail and issuing warrants of arrest for the appellants upon their failure to answer bail before an indictment had been presented: see The State v Gawi [1988-89] PNGLR 118.

Counsel

E Kariko, for the appellants.

G Toop, for the State.

Cur adv vult

2 March 1990

AMET J: The two appellants in this matter were two of three alleged co-offenders, who had been committed for trial for armed robbery. At the trial before the learned trial judge, an indictment was presented against one of the three accused who pleaded guilty, was convicted and whose sentence was adjourned for one week for the trial judge to obtain a probation report. The court inquired of the prosecutor what had happened to the appellants and the prosecutor informed the court that they had been released on K100 cash bail each by the District Court and had not answered bail for their trial.

The trial court then ordered that a bench warrant issue for each of the appellants and that their bail be forfeited. Mr Gene, counsel for the accused, before the court submitted that a court 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 as authority for that proposition a decision of Kapi Dep CJ in The State v Kaliloboa [1986] PNGLR 143. The case of SCR Nos 12 and 12A of 1984; Re Parakas v The State [1985] PNGLR 224 was also cited in relation to the forfeiture of bail.

The learned trial judge revoked his two orders to enable him to study the two cases and the submissions, following which he reinstated the orders that he had earlier made on the basis of his interpretation of s 10 of the Arrest Act and also O 3, r 10(b) of the Criminal Practice Rules (1987). These decisions are now the subject of the appeal: see The State v Gawi [1988-89] PNGLR 118.

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 connection with those proceedings, the court may issue a warrant for the arrest of that person.”

Kapi Dep CJ had held, in The State v Kaliloboa, that for the purposes of applying for a bench warrant pursuant to this section, proceedings are commenced in the National Court by the presentation of an indictment against an accused. His Honour held that “Until this is done, there are no proceedings before the Court on this matter” (at 144). His Honour the trial judge in this appeal stated, “It is true in one sense that criminal proceedings formally commence in the National Court with the presentation of an indictment” (at 119). But his Honour considered (at 119-120) that:

“In another, broader sense, however, criminal proceedings, say on a charge of robbery, commence when the defendant is arrested or when an 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.”

His Honour then proceeded to interpret s 10 of the Arrest Act on the basis of this broader approach of a man committed for trial in the National Court and granted bail by the District Court, in the following way (at 120):

“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 a breach of a condition of his bail granted in connection with those proceedings, the [National] Court may issue a warrant for the arrest of that person.”

His Honour then said, “Support for that view is found I think in O 3, r 10(b) of the Criminal Practice Rules 1987 which was drafted presumably in full knowledge of Kaliloboa’s case”. Rule 10 provides as follows:

“Division 3 — Warrants of Arrest

N2>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.”

With great respect, I am of the firm view that the learned trial judge erred in his interpretation or construction of s 10(1) of the Arrest Act. I do appreciate the good intent and the purposive approach his Honour adopted in an effort to overcome the difficulty the courts are facing in relation to bail absconders, but unfortunately I do not believe that the language adopted in s 10(1) is capable of such a broader sense continuum construction as his Honour purported to give it. I consider that to do so would be to do violence to the clear grammatical intentions expressed in the language used. The ordinary interpretation to be given to the words “the court” twice used is clearly the same court before which the proceedings had first been commenced.

ORDER 3, RULE 10(B) OF THE CRIMINAL PRACTICE RULES 1987

Again, with respect, I am of the view that his Honour erred in law in his conclusion that this rule supported his construction or interpretation of s 10(1) of the Arrest Act. It clearly does not. And, indeed, both counsel agreed that the Criminal Practice Rules apply to trials commenced before the National Court. And so, in my view, O 3, r 10(b) relates to the application for and the issue of warrants of arrest relating to matters or trials that have commenced before the National Court. I do not consider that r 10(b) provides any support for the interpretation the learned trial judge gave to s 10 of the Arrest Act. This rule quite clearly relates to the application for a warrant to arrest a person charged before the National Court by information by leave of the National Court, commonly referred to as an information for private prosecutions for indictable offences where the Public Prosecutor may decline to prefer a charge. And so the information here referred to is an information for an indictable offence permitted to be filed before the National Court by the Court’s leave by a private person pursuant to s 616 of the Criminal Code (Ch No 262). It most definitely does not refer to any information before a District Court for committal. Rule 10(b) of the Criminal Practice Rules therefore permits the issue of a warrant for arrest of a person who has been charged before the National Court by an information by leave of the court. It does not permit the issue of a warrant of arrest without the presentation of the indictment generally. Indeed, r 10(a) on a closer reading, in my view, affirms the view that before a warrant of arrest can be issued proceedings need to have been commenced by presentation of an indictment. Rule 10(a) stipulates that, “Where an indictment has been presented against a 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”. The words, “an indictment has been presented” are qualified by the subsequent words “by production to the judge of the original indictment or a copy thereof”, suggesting that an indictment has already been presented before the National Court, so that the production of the original or a copy thereof to the presiding judge without other evidence would suffice to establish that an indictment had, in fact, been presented on an earlier occasion, as a prerequisite to the application for a warrant to arrest. This, of course, is clearly consistent with one construction given to s 10 of the Arrest Act by Kapi Dep CJ in Kaliloboa’s case.

It is clearly demonstrated that the learned trial judge erred fundamentally in his interpretation of these two provisions, s 10 of the Arrest Act and r 10(b) of the Criminal Practice Rules. However, the matter does not rest there because we are invited to construe definitively what s 10 of the Arrest Act means in relation to “commencement of proceedings” before a court referred to therein. Kapi Dep CJ, of course, equated the “commencement of proceedings” with the commencement of the trial in the National Court, which is by the presentation of an indictment and the calling of the accused to answer to the charge. But we are here concerned with the application for a warrant for arrest where no indictment has yet been presented before the National Court. It is true that a person, committed by the District Court and released on bail, has certain obligations imposed on him or her with which to comply, such as answering bail before the National Court at a given time and place. The National Court is advised of the committal by the District Court forwarding to it a notice of committal. It has been argued that technically such an accused person committed for trial is not strictly before the National Court and that no proceedings have yet been commenced against him before the National Court until the Public Prosecutor in his independent constitutional discretion determines to charge him, by the presentation to the National Court of an indictment. The argument would continue that the National Court is therefore not seized legally of this matter until the Public Prosecutor initiates the commencement of the trial by the presentation of the indictment.

I am of the view that s 10(1) of the Arrest Act applies to matters before both the District and the National Courts. Order 3, r 10 of the Criminal Practice Rules applies only in relation to indictable offences being tried by presentation of an indictment, or by information by leave of the court pursuant to s 10(b) of the Criminal Code.

I am also of the view that the term “proceedings” used in s 10(1) of the Arrest Act is a generic term. It refers generally to “steps taken in” (Concise Oxford Dictionary) the course of the whole case. There are thus a number of “proceedings” or “steps taken in” the course of criminal action against someone. There are interlocutory “proceedings” in relation to bail, constitutional applications, s 552(2) and s 552(4) applications or prerogative writs and others. They would be “proceedings” or “steps taken in” the course of the whole action.

And so to the extent that “proceedings” were defined as the commencement of trial by the presentation of the indictment by Kapi Dep CJ in Kaliloboa’s case, I consider that to be too restrictive and narrow. I do agree that that construction is open where a trial has commenced upon the presentation of an indictment and in the course of which it becomes necessary to apply for the issue of a bench warrant. In such a situation, both s 10(1) of the Arrest Act and O 3, r 10(a) of the Criminal Practice Rules would be available.

I consider therefore that in relation to an accused committed by the District Court for trial in the National Court and granted bail on certain conditions, one of which is the date, time and place he is to answer to bail before the National Court, then the “proceedings” for the purpose of his answering to his bail are commenced upon the court calling his name three times outside of the court. For the purpose of an accused answering to his bail obligations and other ancillary purposes of the court, the State and the lawyer representing the accused, the “proceedings are commenced” by the accused’s name being called by the court on the date he is to answer to his bail before the National Court.

In these circumstances, I consider that although the learned trial judge erred in his interpretation of s 10(1) of the Arrest Act and of O 3, r 10(b), I do not consider that a miscarriage of justice has occurred in the end result.

Proceedings had commenced and so the warrants of arrest were properly issued and bail forfeited.

I would dismiss the appeal.

WOODS HINCHLIFFE JJ: This appeal arises out of an order made in the National Court at Wewak in April of last year. The two appellants failed to answer bail and, when Bredmeyer J ordered that warrants issue for their arrest, he was met with an objection from the appellants’ lawyer. It was submitted that warrants could not be issued because an indictment had not been presented to commence the proceedings as required by s 10 of the Arrest Act (Ch No 339). It was also submitted that such an order would be in conflict with the decision of Kapi Dep CJ in The State v Kaliloboa [1986] PNGLR 143. After considering the matter further, Bredmeyer J said:

“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.”

Part of the notice of appeal reads as follows:

N2>“3.      Grounds

(a)      That His Honour erred in law in his interpretation of s 10 of the Arrest Act and Order 3 Rule 10(b) of the Criminal Practice Rules (1987).

(b)      That His Honour erred in law in holding that Bench Warrants could be issued by the National Court against the Appellants where no indictment had been presented against the Appellants.

N2>4.       Orders sought

(a)      That the Orders of His Honour dated 6 April 1989 be set aside.

(b)      That the Bench Warrants issued be revoked.

(c)      That Bail be re-instated for the Appellants.

Section 10 of the Arrest Act provides:

“Issue of Warrant for Breach of Bail Condition

N2>(1)      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 connection with those proceedings, the court may issue a warrant for the arrest of that person.

N2>(2)      A person arrested under a warrant issued under Subsection (1) shall not be granted bail by a policeman but shall be brought before a court without delay.”

In The State v Kaliloboa, Kapi Dep CJ in similar circumstances to the present said (at 144):

“The application before me is made pursuant to s 10 of the Arrest Act (Ch No 339). Under this provision, a bail authority exercises discretion provided ‘ ... proceedings have been commenced before it (sic)’. I consider that the proceedings, for the purposes of this application before the National Court, are commenced when an indictment has been presented against the accused. Until this is done, there are no proceedings before the Court on this matter.”

Bredmeyer J went to the other extreme and said:

“In another broader sense, however, criminal proceedings, say on a charge of robbery, commence when the defendant is arrested or when an information is laid against him in the District Court.”

It was argued before Bredmeyer J that, as the proceedings had not commenced in the National Court and that, as an indictment had not been presented, then warrants of arrest could not be issued. The lawyer relied on O 3, r 10(a) of the Criminal Practice Rules 1987 which read as follows:

N2>“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;”

Bredmeyer J was of the view that as the proceedings commenced back at the District Court stage he could apply r 10(b) of the order which reads:

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

(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.”

We are of the view that his Honour made a fundamental error in law at that stage. He assumed that the “information” referred to in r 10(b) was a District Court information. Clearly that is not so. The “information” is in fact an information covered by s 616 of the Criminal Code (Ch No 262) which is an “information by leave of the Court by private prosecutors”. It falls under “Division 11 — Information by Private Persons for Indictable Offences: Ex Officio Indictments”.

Also O 3, rr 4, 5, 6, 7 and 8 of the said Rules make it clear that O 3, r 10(b), is not referring to a District Court information.

The words, “Where proceedings have been commenced before a court,” in s 10 of the Arrest Act to our minds mean, in this case, where proceedings have been commenced in the National Court. The accused men were committed for trial to the National Court from the District Court. When do the proceedings actually commence in the National Court? Unfortunately, we are unable to agree with Kapi Dep CJ in The State v Kaliloboa because he was of the view that proceedings commence in the National Court on the presentment of the indictment. We are of the view that the trial commences on the presentment of the indictment but that is altogether different from when the actual proceedings commence in the National Court: see s 557 of the Criminal Code.

Bredmeyer J said that the proceedings commence at the District Court. We would agree that the proceedings do commence generally on the laying of an information or even at the arrest stage: see R v West [1897] UKLawRpKQB 179; [1898] 1 QB 174, but s 10 of the Arrest Act is referring to when those proceedings actually commence in the National Court.

We are satisfied that the proceedings commence in the National Court on the day that the accused is due to answer his bail as ordered by the District Court. Up until then, he is still within the jurisdiction of the District Court. We say that because s 86 of the District Courts Act (Ch No 40) provides as follows:

N2>“86.    Arrest of Person Released on Bail

(a)      Where a recognizance is conditioned for the appearance of a person on a certain day before a Court or to take his trial before the National Court a police officer who has reasonable grounds for suspecting that the person will not voluntarily appear or surrender himself may apprehend the person and bring him before a Court before the day appointed.

N2>(2)      The Court before which a person is brought under Subsection (1) may:

(a)      commit him to a corrective institution, police lock-up or other place of security or other safe custody to be brought before the Court or the National Court, as the case may be, at the time and place specified in the recognizance for his appearance; or

(b)      discharge him on bail on his entering into a recognizance, with or without sureties, to appear before the Court or the National Court (as the case may be) at the time and place specified in that recognizance,

and shall, in either case, order that the first recognizance be discharged.”

Even though the accused has gone through the committal proceedings in the District Court and he has been committed to stand trial in the National Court, the District Court still has jurisdiction up until the day nominated for the accused’s first National Court appearance.

So it seems to us that after commencement of proceedings in the National Court and also any time after the indictment has been presented, an arrest warrant may issue pursuant to s 10 of the Arrest Act. But after presentment of the indictment, if the accused fails to appear for his trial then an arrest warrant may issue pursuant to O 3, r 10(b) of the Criminal Practice Rules 1987.

We are therefore of the view that the trial judge erred in law in his interpretation of s 10 of the Arrest Act and of O 3, r 10(b) of the said rules.

It follows that even though we do not agree with the trial judge’s reasoning in coming to the conclusion which he reached, we do agree that arrest warrants should have issued.

We would therefore dismiss the appeal.

Appeal dismissed

Lawyer for the appellants: Public Solicitor.

Lawyer for the State: Public Prosecutor.