Unreported National Court Decisions
N865
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
APP NO 168 OF 1989
APP NO 169 OF 1989
WAK KOPUN
V
THE STATE
AND
MAKINDA NAMBA
V
THE STATE
Waigani
Brown J
11 April 1990
Counsel:
Mr Gene, for the Appellant
Mr Manek, for the State
BROWN J:  Both these appeals arose out of a District Court Magistrates order, forfeiting bail on the nor- appearance of the appellants at the District Court to answer charges, they having been bailed, so to appear.
Section 131 of the District Court Act provides that, upon proof of due service “the court may either -
(a)      proceed ex parte to hear and determine the case in the absence of the defendant; or
(b)      upon oath being made before it, substantiating the matter of the information to its satisfaction, issue its warrant for the arrest of the defendant to bring him before the court to answer the information and to be further dealt with according to law.”
In both cases, the Magistrate on the record, on the application of the Police Prosecutor, dismissed the cases against both accused and forfeited bail.
Section 22 of the Bail Act provides that a Magistrate; may make an order forfeiting the whole or part of the security given by him, where a person granted bail fails to comply with his bail obligation by non-appearance or contravenes the terms of such obligation.
The provisions of the Bail Act are independent of the District Court Act. Consequently, the magistrate is empowered irrespective of the procedure which he follows under the District Court Act to forfeit bail in appropriate cases.
Since my decision given on the 11th April, I have the benefit of reading my brother judge, Sheehan J’s reasons in an appeal of Tama Nou 167/89, handed down in April. I agree with the reasons expressed. It is clear that the Bail Act enables such forfeiture. I had upheld this appeal on the narrow point that the magistrate had acquiesced with the Police Prosecutor’s application to dismiss the information without recording his own view. As a court of record s 131 of the District Court Act, sets out the procedure which should be followed if the defendant to a summons does not appear.
Had the Police Prosecutor presented no evidence then the Magistrate would be entitled to dismiss the information or complaint, but on the face of the record this has not happened.
If the investigating constable is available to proceed ex parte, make a finding and where appropriate impose a penalty then the magistrate is so empowered in the circumstances touched on in the case of Peter v South Pacific Brewery Limited (1976) PNGLR 537.
Such use of court time however, has largely been avoided in Australian State for instances where, “on the spot” fine notices obviate the necessity of summonsing offenders in respect of motor traffic offences, for instance in the first place.
Notwithstanding my reasons, I had on the 11th April upheld the appeal and quashed the lower courts order, forfeiting bail. I further ordered that such bail monies be repaid to the appellants.