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State v Kaliloboa [1986] PGNC 26; [1986] PNGLR 143; N546 (13 June 1986)

N546

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

EMMANUEL KALILOBOA

Alotau
Kapi DCJ
13 June 1986

CRIMINAL LAW - Bail - Breach of condition of - Warrant of arrest - Proper procedure - Where "proceedings commenced before" court - Proceedings commence with issue of indictment in National Court - Bail Act 1977 - Arrest Act (Ch No 339), s 10(1).

CRIMINAL LAW - Practice and procedure - Warrant of arrest - Where "proceedings commenced before" court - National Court proceedings commence with issue of indictment - Arrest Act (Ch No 339), s 10(1).

Under the Arrest Act (Ch No 339), s 10, a bail authority may issue a warrant of arrest where "proceedings have been commenced before it".

Held

(1) Where bail is granted under the provisions of the Bail Act 1977 and there is a breach of the conditions of the bail the appropriate procedure is an application to any bail authority for a warrant of arrest under the Arrest Act, s 10.

SCR Nos 12 and 12A of 1984: Re Parakas v The State [1985] PNGLR 224 at 230, considered and applied.

(2) For the purposes of such an application to the National Court the "proceedings" are "commenced before it" where an indictment has been presented against the accused person.

(3) In the circumstances, in the absence of the presentment of an indictment, the application should be dismissed.

Held Further

(4) The issue for determination on such an application is whether or not a warrant of arrest should be made and it is only when the accused is brought before the court pursuant to such a warrant that issues relating to revocation and forfeiture of bail under the Bail Act 1977, s 21 and s 22, arise.

SCR Nos 12 and 12A of 1984: Re Parakas v The State [1985] PNGLR 224 at 230, considered and applied.

Cases Cited

SCR Nos 12 and 12A of 1984: Re Parakas v The State [1985] PNGLR 224.
Application for Warrant of Arrest
On the last day of a sitting of the court at which the accused was to have appeared, the State Prosecutor sought the issue of a warrant of arrest for breach of his conditions of bail.

Counsel

G Towaluta, for the State.
S Sakumai, as amicus curiae.

13 June 1986

KAPI DCJ: This matter was called on the first day of the sittings at Alotau, on 10 June 1986. The Court was informed that the accused had gone to Port Moresby to instruct a lawyer to represent him at the sittings. The State Prosecutor applied at that time for a warrant of arrest to be issued for breach of a condition of bail. I indicated that I would not hear the application until the last day of the sittings. It was possible that the accused could make appearance during the sittings. By the end of the sittings in Alotau, the accused had not arrived. The State Prosecutor renewed his application on the last day.

The accused is charged with misappropriation of funds. He was committed to stand trial by the District Court at Alotau on 24 January 1986. He was granted bail with the condition that he report to the officer-in-charge of the Police Station at Alotau every Monday from 8.00 am to 4.00 pm. It is not in dispute that he failed to report to the officer-in-charge on 10 June 1986 and failed to answer bail at the National Court by the last day of the sittings.

In the past, courts have not followed a regular procedure in dealing with breach of bail conditions. Some courts deal with such applications with revocation and forfeiture of bail at the same time. The appropriate procedure that should be followed was recently considered by the Supreme Court in SCR Nos 12 and 12A of 1984; Re Parakas v The State [1985] PNGLR 224. With respect, the appropriate procedure that should be followed by bail authorities is set out in the judgment of Amet J.

Where bail is granted and there is a breach of conditions of bail, application should be made for a warrant of arrest under s 10 of the Arrest Act (Ch No 339). That application can be made to any bail authority. The issue at that stage is confined to the question of whether or not a warrant of arrest should be granted.
Upon arrest of the accused, he is to be brought before a court of law. He can be brought before any court other than the local court. At this stage, the issues relating to revocation of bail under s 21 and forfeiture of bail under s 22 of the Bail Act 1977 may arise. At this hearing, the defendant is given an opportunity to be heard on the two issues.

The application before me is made pursuant to s 10 of the Arrest Act (Ch No 339). Under this provision, a bail authority exercises discretion provided "... proceedings have been commenced before it". I consider that the proceedings, for the purposes of this application before the National Court, are commenced when an indictment has been presented against the accused. Until this is done, there are no proceedings before the Court on this matter. I invited the prosecutor to present an indictment on this matter. The prosecutor declined to present an indictment. The matter has not yet commenced before me and therefore I am unable to exercise the discretion. The application is dismissed.

Application dismissed

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Lawyer for the State: V Noka, Acting Public Prosecutor.