Junior Steven Gawi and Toliman Jiki Viru v The State

• Jurisdiction: Papua New Guinea
• Judge: Woods J and Hinchliffe J:
• Judgment Date: 02 March 1990
• Citation: [1990] PNGLR 88
• Court: Supreme Court
• Year: 1990
• Judgement Number: SC382

Supreme Court: Amet J, Woods J and Hinchliffe J

Judgment Delivered: 2 March 1990

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:

"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

(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:

(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.

(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

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

(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 [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

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...