DC626

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 23 of 2007

BETWEEN

AMBROSE MARA
Informant

AND

ALBERT UKURA
Defendant

Goroka: M Gauli, PM
2007: June 26

CRIMINAL - Application to reinstate bail – Failure to produce bail receipt – Failed to appear in Court on two consecutive adjournments – Failure to give reasonable explanation – Application made outside the prescribed statutory time limit. 

Cases Cited
Lemba Takail –v- William Wulat N371 (m) (Unreported)
SCR No. 12A of 1984: Re Joe Parakas –v- The State [1985] PNGLR 224

References
Bail Act Ch. 340, ss. 21, 22

Counsel
For the Prosecution – Sergeant Bongke, Goroka Police Station
For the Defendant – Mr. B. Koningi of Koningi Lawyers

26 June 2007

DECISION OF THE COURT

M Gauli, PM: This is an application by the defendant Albert Ukura to reinstate his K500.00 court bail forfeited this Court on the 12 June 2007. The defendant appeared in Court under a warrant of arrest issued on the 12 June 2007. He now applied to reinstate that bail. He is represented by the Koningi Lawyers.

2. First let me state the background of the matter leading to this application. The defendant is charged under Section 390 A of the Criminal Code Act for having intention to extort compensation from the government of Papua New Guinea. These are the events that transpired in Court from the first day of his appearance to the date of this application.

23/04/07:	Defendant appeared from police custody. Case adjourned to 11/05/07. Defendant was remanded in custody.

11/05/07:	Defendant appeared on K500.00 court bail. He was granted bail by this Court sometimes between the 23/04/07 and 11/05/07 when he made the bail application. He failed to produce the bail receipt. He was ordered to produce the receipt in the next appearance on 07/06/07.

07/06/07:	No appearance by the defendant. His counsel Mr. B. Koningi appeared. The Counsel informed the Court that defendant will be travelling back from Port Moresby by plane that morning. And he asked for adjournment to 1:30 pm that day. However I adjourned the proceedings to 12/06/07 at 9:30 am in case the defendant encounters some difficulties in his travel.

12/06/07:	Both the defendant and his lawyer failed to appear. No advise received from the Counsel why they would not be present in Court that day. Prosecutor applied for the forfeiture of bail and warrant of arrest to be issued. The application was granted and the case adjourned to 26/06/07.

26/06/07:	Defendant present on Warrant of Arrest. His lawyer also present. The Counsel then made the oral application to reinstate and release the defendant on bail.

3. This proceeding was fixed for 9:30 am on 26 June. The defendant was not present. On the application by the counsel the proceedings were stood over to 1:30 pm as the defendant has gone to Kainantu Police Station to pick up the copy of his reporting dates at Kainantu. At 1:30 pm when the defendant appeared in Court, the Counsel made this application to reinstate the bail.

4. The reasons to support the application are these. Firstly the defendant went to Kainantu Police Station to pick up the records of his reporting times at the police station when he was arrested. The police did not go out searching for him when the police effected the warrant of arrest. Secondly the defendant is known to police and that he is unlikely to abscond or evade bail again if he is reinstated on bail. His bail conditions are not clear if he is to report to the OIC police in Kainantu or Goroka. He asked that if he is reinstated of his bail then more stringent bail conditions be imposed.

5. The prosecutor did not challenge this application except that he asked for more stringent bail conditions to be imposed.

6. I then enquired of the defendant’s bail receipt. His Counsel advised that he does not have that bail receipt in his possession. The defendant was specifically ordered by this Court on the 11 of May 2007 to produce the receipt in the next appearance on the 07 June 2007. On that day the defendant failed to appear in Court. And he has not produced the receipt up to this very day. I presumed that he has not produced the receipt to his lawyer either. If he did the receipt or the number of the receipt would be in his case file kept by his lawyer. I have some doubt as to whether the defendant has actually paid the K500.00 bail allowed by this Court.

7. I also considered that the defendant had failed to appear in Court on two consecutive dates when the proceedings came before this Court, that is on the 07 and 12 of June 2007. On the 07 of June the defendant was in Port Moresby and he was travelling back to Goroka that morning. The proceedings were then adjourned to the 12 of June on the application by his Counsel. On the 12 of June both the defendant and his lawyer failed to appear in Court with no explanation given. The Counsel’s reason for not attending in Court on the 12 June was that he was attending to National Court in Kundiawa. He did not inform this Court that he will be attending to National Court matters that day. And I assumed that he did not inform the defendant to appear in Court in person on the 12 June 2007.

8. The defendant’s application to reinstate him on bail is based mainly on the grounds that he was arrested by police when he went to Kainantu Police Station to obtain the copy of his reporting times to police and that the police did not go out searching for him to effect the Warrant of Arrest. This is a very weak argument by the defendant. He has failed to produce his bail receipt. He gave no reason why he could not produce that receipt. He failed to appear in Curt on two consecutive adjournments. Again he failed to given reasons for his none attendance. I am satisfied that the defendant has breached his bail condition.

9. The Section 21 of the Bail Act empowers this Court to revoke bail where the Court is satisfied that the circumstances so require it. This provision states and I quote:

“21 Revocation of bail

(1)	Where it is alleged that there are reasonable grounds for revoking bail granted to a person and the person appears or is brought before a court, the court shall consider whether the bail should be revoked.

(2)	If after hearing all the evidence including that of the person granted bail and his witnesses (if any), the Court is satisfied that the circumstances so require, it may –

(a) revoke the bail, discharged the person from his bail obligations and commit the person to a place of confinement; or 

(b) subject to Subsection (3), vary the condition of the bail.”

10. The bail was revoked on the 12 June in the absence of the defendant as he failed to appear in Court on two consecutive adjournment, though Section 21 (2) of the Bail Act requires the person on bail be heard before the Court could consider revoking the bail. The Section 22 of the Bail Act does empower the Court to forfeit bail if the person granted bail fails to comply with his bail obligations, either whole or part of the bail. This provision states and I quote:

“22 Forfeiture of Security 

(1)	Where a person granted bail contravenes or fails to comply with his bail obligations, a court may make an order forfeiting the whole or part of the security given by him to secure his bail obligations.

(2)	Subject to Subsection (3), where an order is made under Subsection (1), the order –

(a) in the case of money undertaken to be paid in the event of a breach or contravention of the bail obligation – shall be deemed to be a judgment of the court that the person pay to the State a sum not exceeding the sum undertaken to be paid; and

(b) in the case of a deposit – may authorize payment of the whole or part of the deposit into the Consolidated Revenue Fund.

(3)	A person who is affected by an order under Subsection (1) may, within 14 days after the making of the order, apply to the Court making the order for variation or revocation of the order.

(4)	The court after hearing an application under Subsection (3) may make and order it considers just in the circumstances.”

11. Under Section 22 (3) the application to revoke the order forfeiting the bail or the application for the reinstatement of the forfeited bail may be made within 14 days after the order was made. That is a statutory time limit within which to make the application. In the present case this application is been made a day after the statutory time limit expires as prescribed by Section 22 (3) of the Act. And no reasonable explanations were given by the defendant of his non-appearance. In the case of SCR No. 12A of 1984: Re Joe Parakas –v- The State [1985] PNGLR 225, the Supreme Court held that, “An order varying or revoking an order forfeiting bail cannot be made on an application outside the fourteen day time limit prescribed by Bail Act 1977, Section 22 (3).” His hone Amet J, as then he was, has a different view on this. He said that a person affected by the order forfeiting the bail has the opportunity under Section 22 (3) to apply to reinstate the bail even though there is a prescribed time limit. I do not agree with his honour’s view. However an application to reinstate the bail may be made and granted where the applicant shows exceptional circumstances. The exceptional circumstances would be: (1) The applicant was hospitalised; or (2) The applicant was overseas from the date of the order forfeiting the bail up to the time limit expired. Where the application is made after the expiry of the time limit for other reasons, the application would be statutory time barred.

12. Bail can be forfeited in the absence of the defendant depending on the circumstances of a particular case where the person granted bail contravenes or fails to comply with his bail obligations pursuant to Section 22 (1) of the Bail Act. In the case of Lemba Takail –v- William Wulat N371 (m) 15 February 1982 (Unreported), when the defendant failed to attend the court at 9:30 am for his case the Magistrate forfeited his bail. He then appeared at 1:30 pm the same day and applied to revoke the order forfeiting the bail and reinstate the bail. The application was refused. On appeal to the National Court, Justice Bredmeyer said that since the applicant had attended the court on the same day albeit late and secondly the case was only for mention and not for trial, therefore the prosecution’s witnesses have not been inconvenienced, the magistrate should only forfeit part of the bail. Since the defendant was already convicted and sentenced by the time this appeal was heard, Justice Bredmeyer order that part of the bail be forfeited while the other part of it be refunded.

13. I do agree with his honours decision that where a person on bail attends the court late either on the same day or a day or few days later after the bail was forfeited but within the time limit prescribed by Section 22 (3) of the Bail Act, the court should forfeit part of the bail and not whole of the bail, provided the person who breached his bail obligation appeared in court voluntarily and has given reasonable explanations of his none attendance. However I do not agree with His Honour’s reason for forfeiting part of the bail because of the matter was only for mention and not for trial. The reason to forfeit bail either in whole or part is because he has breached his bail obligation regardless of whether the case was for mention or hearing.

14. Regarding forfeiting bail in the absence of the person on bail, I endorse what was said in the case of SCR No. 12A of 1984: Re Joe Parakas –v- The State [1985] PNGLR 224, by Amet J, where he said: “It would appear from my answer that a forfeiture order can be made in the absence of the accused. An order can be made on the first mention in the National Court following committal if the obligations and conditions are specific and the application is made by the prosecution. Section 22 (1) does enable the court of its volition to make such an order also. The power, however, is discretionary and I think it ought to be left to each judge to exercise in his discretion in the circumstances as they present themselves to him.”

15. I do agree with His Honour’s decision that bail can be forfeited by the court in its own volition in the absence of the person granted bail. However that discretion should be exercised with caution where the person granted bail has breached his bail obligations on two or more consecutive adjournments. The Court should not forfeit bail in the first instance of his non-attendance, but the discretion to forfeit the bail should be exercised on subsequent failure to attend in Court. 
 
17. Having considered all the circumstances of this case and having satisfied that firstly the defendant has failed to produce to this Court his bail receipt; secondly the application to reinstate the forfeited bail being made after the expiry of the statutory time limit; and thirdly the defendant gave no reasonable explanations for his failure to attend the Court on two consecutive adjournments, I refused the application for the reinstatement of bail. And I made an order that the Court order of the 12 June 2007 forfeiting the bail remains to be enforced and that the defendant be remanded in custody. The substantive matter is adjourned to 29 June 2007 at 9:30 am for mention.

For the Prosecution - Sergeant Bongke, of Goroka Police Station 
For the Defendant - Mr. B. Koningi of Koningi Lawyers