Junior Steven Gawi and Toliman Jiki Viru v The State

• Jurisdiction: Papua New Guinea
• Citation: [1990] PNGLR 88
• Date: 02 March 1990
• Court: Supreme Court
• Year: 1990

Supreme Court: Amet J, Woods J, Hinchliffe J

Judgment Delivered: 2 March 1990

1 Criminal law—bail—breach of conditions—warrant of arrest—proper procedure—when proceedings commenced in National Court—proceedings commenced on day accused due to answer bail as ordered by District Court—trial commences on presentation of indictment in National Court

2 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 (Ch339), s10(1)—Criminal Practice Rules 1987, O3, r10.

CRIMINAL LAW—Bail—Breach of condition—Bench warrant—When may issue—Arrest Act (Ch339)—Criminal Practice Rules 1987, O3, r10.

The Arrest Act (Ch339), s10(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, O3, r10, 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 s10(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 [1988–89] 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, O3, r10(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 s616 of the Criminal Code: it does not refer to an information presented in the District Court.

R v West [1898] 1 QB 174, SCR Nos 12 and 12A of 1984; Joe Parakas v The State [1985] PNGLR 224, The State v Gawi [1988–89] PNGLR 118 and The State v Kaliloboa [1986] PNGLR 143 referred to

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.

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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 s10 of the Arrest Act (Ch339) and cited as authority for that proposition a decision of Kapi DCJ in The State v Kaliloboa [1986] PNGLR 143. The case of SCR Nos 12 and 12A of 1984; Joe 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...