Tama Nou v The State (1990) N892

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 07 May 1990
• Citation: (1990) N892
• Court: National Court
• Year: 1990
• Judgement Number: N892

Full Title: Tama Nou v The State (1990) N892

National Court: Sheehan J

Judgment Delivered: 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...