N369(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

(APPEAL NO. 250 OF 1981)

BETWEEN:

MILI RUMITS
APPELLANT

AND:

WILLIAM WULAT
RESPONDENT

Kieta: Bredmeyer J
15 February 1982; 19 February 1982

CRIMINAL LAW - Bail Act - forfeiture of bail. Forfeiture unjust as magistrate led defendant to believe an adjournment would be granted.

BREDMEYER J: Mr. Rumits is a Government driver at Arawa. He was charged with driving under the influence of intoxicating liquor. He pleaded not guilty and after several adjournments the case was listed for hearing at the Kieta District Court on 20th August, 1981 at 9.00 a.m. The defendant failed to appear on that date, the magistrate Mr. O. Karapo had no notification of an application for adjournment, and he forfeited K150 cash bail and issued a warrant of arrest. The defendant was later arrested, tried, convicted and placed on a K50 good behaviour bond.

The defendant has appealed against the forfeiture of the K150 bail money as unjust. On the previous day, the defendant had sought an adjournment via a note from the Commerce Minister in the Provincial Government to the Senior Magistrate which read as follows:

"JACOB TOROKEN,

I am writing to inform you that Mr. Milli, P.T.A. Driver, who is to appear in Court tomorrow, Thursday, 20.8.81, has been assigned by P.T.A. to drive me and some of the National Ministers to Buka tomorrow 20.8.81 as well.

I then like to find out if it is possible to postpone his case to a later date. If this is possible then please notify me through Mr. Milli.

I would appreciate it if you let me know this evening, 19.8.81.

Thank you

(sgd) THOMAS ANIS
COMMERCE MINISTER"

The defendant delivered the note to Mr. Toroken personally and by affidavit has deposed that he was told by Mr. Toroken "that an adjournment would be granted". Mr. Toroken at my request has supplied his written recollection of events the relevant part of which reads as follows:

"The note from the Minister for Commerce was given to me by the appellant. I read it, I told the appellant the case is presided over by another magistrate. I could not really give you an answer but I will pass the note to the magistrate tomorrow morning. It was up to the magistrate then hearing your case.

In the process of our conversation I explained to Appellant that the proper thing to do or he should do is to see the police because it is really a police case and it was police who prosecuted the case, not us. It may be probable that somewhere in the conversation that I may have said something that appellant took to mean it was okay an adjournment will be granted".

Mr. Toroken also said that he forgot to hand the note to the presiding magistrate Mr. Karapo. In view of the last sentence in the passage quoted, the forfeiture seems unfair. I think a "substantial miscarriage of justice" occurred and the appeal should be allowed. As the trial of the defendant has now been concluded, there is no point in reinstating the forfeited bail money. Instead I order a refund of the K150 to Mr. Pumits.

In order to give some guidance to magistrates I consider that the request for adjournment should have been refused. The reasons for the adjournment-that the defendant was required to drive the Minister that day to Buka - was not a good one. It is important that the work of the court in trying cases is not delayed unnecessarily by needless adjournments. The defendant was entitled to be granted special leave or emergency leave under the Public Service Act for the day. The magistrate could have written on the bottom of the Minister’s note "Application refused. Defendant must attend court tomorrow". A more worthwhile application for adjournment should have been referred to the Police Prosecutor to see if he could consent. If he consented an adjournment could have been granted prior to the hearing date.

APPEAL allowed. K150 forfeited bail money to be refunded to appellant.

Solicitor for Appellant: Public Solicitor
Counsel: D. Lightfoot
Solicitor for Respondent: Public Prosecutor
Counsel: E. Kariko