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Wau v State [2012] PGNC 343; N4654 (17 April 2012)

N4654

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 57 OF 2012

BETWEEN

GUMA WAU
Applicant

AND

THE STATE
Respondent

Kundiawa: Makail, J
2012: 16th & 17th April

PRACTICE & PROCEDURE - Application to revoke warrant of arrest - Jurisdiction of - Applicant a member of National Parliament and State Minister - Grounds of - Breach of condition of bail - Failure to appear at National Court call-over - Reasons for failure - Attending to pressing national issues - Attending National Executive Council meetings and Parliament session in relation to deferral of 2012 National General Election - Constitution - Section 155(3) - Arrest Act, Ch 339 - Section 10.

PRACTICE & PROCEDURE - Warrant of arrest - Purpose of - Securing attendance of an accused person before a Court - Court to consider whether bail should be revoked - Arrest Act, Ch 339 - Section 10 - Bail Act, Ch 340 - Section 21.

Facts

The applicant a member of the National Parliament representing the Kerowagi Open Electorate in the Chimbu province and Minister for Defence applied to revoke a warrant of arrest or what is commonly known as a "bench warrant" issued by the National Court for his arrest because he did not appear at the National Court call-over on two occasions. He explained, at the material times, he was attending to pressing national issues affecting the country, in that, he was attending National Executive Council (NEC) meetings and Parliament session in relation to the deferral of 2012 National General Election and as a result did not have time to attend the National Court call-over.

Held:

1. The National Court's power to deal with an application for revocation of bench warrant is derived from section 10 of the Arrest Act, Ch 339. This is the jurisdictional basis of the application.

2. When sections 1 and 10 of the Arrest Act, Ch 339 are read together, they mean that, except for Village Court and Local Court, Courts like the District Court, National Court and Supreme Court have jurisdiction to deal with accused persons arrested under a bench warrant for breach of bail condition(s) and these persons must be brought before the appropriate Court to be deal with.

3. The purpose of requiring accused persons arrested under a bench warrant for breach of bail condition(s) to be brought before the Court was to secure their attendances before the Court and the other was for the Court to consider whether bail should be revoked: see section 21 of the Bail Act, Ch 340.

4. Pressing national issues, such as attending National Executive Council meetings and Parliament session in relation to the deferral of 2012 National General Election was not a satisfactory explanation for not attending the National Court call-over.

5. As this was the first time a bench warrant was issued against the applicant, and that the applicant had voluntarily appeared, he was reprimanded.

6. The application for revocation of bench warrant was granted and the bench warrant was set aside forthwith.

7. The application for variation of bail conditions was granted as follows:

(a) the applicant shall pay K2,000.00 cash bail in addition to the cash bail of K1,000.00 already paid, thereby giving a total of K3,000.00 cash bail; and

(b) he shall appear at every National Court call-over at Kundiawa National Court and must make appearance at the National Court at Kundiawa whenever required.

8. The substantive matter CR No 1552 of 2010: The State -v- Guma Wau was adjourned to the next National Court call-over at Kundiawa National Court on Monday 07th May 2012 at 9:30 am.

Cases Cited

No cases cited

Counsel:

Mr G Gendua, for Applicant
Ms V Mauta, for Respondent

RULING ON APPLICATION FOR REVOCATION OF BENCH WARRANT

17th April, 2012

1. MAKAIL, J: Honourable Guma Wau, you are a member of the National Parliament representing the Kerowagi Open Electorate in the Chimbu province. You are also the Minister for Defence in the O'Neil/Namah Government. Through your lawyer Mr Gabriel Gendua, you have applied to revoke a warrant of arrest or what is commonly known as a "bench warrant" issued by the National Court for your arrest on 11th April 2012 because you did not appear at the National Court call-over on two occasions.

2. Mr Gendua made the application under section 155(3) of the Constitution and section 10 of the Arrest Act, Ch 339. The State does not oppose the application but asked for variation of two of the bail conditions pursuant to section 20 of the Bail Act, Ch 340. Even though the State does not oppose the application, that does not mean, the application must be granted as a matter of course. You as the party applying to revoke the bench warrant bear the onus of establishing a case for the grant of the application. Upon that, the Court will revoke the bench warrant.

3. Mr Gendua relied firstly on section 155(3) of the Constitution as the basis of the application. This constitutional provision gives the National Court inherent power to review any exercise of judicial authority and such other jurisdiction and powers as are conferred on it except where firstly, the jurisdiction is conferred on the Supreme Court to the exclusion of the National Court, or secondly, where the Supreme Court assumes jurisdiction under subsection 4 or thirdly, where the power of review is removed or restricted by a Constitutional Law or an Act of Parliament.

4. Your application to revoke the bench warrant is not an application for review of the decision of the National Court that issued the bench warrant for your arrest. In other words, you are not asking the Court to review the decision of the National Court which issued a bench warrant against you. You are asking the Court to revoke it. Thus, in my view, this provision has no application to your case. On the other hand, the National Court's power to deal with such application is derived from section 10 of the Arrest Act, Ch 339. This is the jurisdictional basis of the application and it states:

"Issue of warrant for breach of bail condition.

(1) 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 inconnexion with those proceedings, the court may issue a warrant of the arrest of that person.

(2) A person arrested under a warrant issued under Subsection (1) shall not be granted bail by a policeman but shall be brought before a court without further delay." (Emphasis added).

5. The term "a court" in section 10 is defined by section 1 of the Arrest Act, Ch 339 (Interpretation provision) as "......any court, other than a Village Court, and includes a judge or magistrate of any court, other than a Village Court." When these two provisions are read together, they mean that, except for Village Court and Local Court, Courts like the District Court, National Court and Supreme Court have jurisdiction to deal with accused persons arrested under a bench warrant for breach of bail condition(s) and these persons must be brought before the appropriate Court to be deal with. The purpose of requiring these persons to be brought before the Court is to secure their attendances before the Court and the other is for the Court to consider whether bail should be revoked: see section 21 of the Bail Act, Ch 340.

6. In your case, you are on bail and there are three conditions attached to it. First, you are to pay K1,000.00 cash bail. You have complied with this condition. Secondly, you are to appear at the National Court whenever required and thirdly, you are not to approach or interfere with State witnesses. Following the issuance of the bench warrant on 11th April 2012, police did not arrest you. You voluntarily appeared before the Court yesterday and asked the Court to revoke the bench warrant. In a way, you did not cause the police a great deal of trouble or inconvenience and expenses to find you and have you brought before the Court. This is a matter that I consider relevant and favours you when I consider the application.

7. In your affidavit in support of the application, you explained at the material time, you were attending to pressing national issues affecting the country, in that, you were attending National Executive Council (NEC) meetings and Parliament session in relation to deferral of 2012 National General Election in Port Moresby between 02nd and 05th April. As a result, you did not have time to attend the National Court call-over at Kundiawa National Court on 02nd April 2012.

8. In his affidavit in support, your lawyer Mr Gendua explained that on that date, he appeared. Because you did not attend, the State applied for a bench warrant and he applied for an adjournment on your behalf. The Court adjourned the State's application to 11th April 2012 and allowed you time until that date to appear. Mr Gendua then informed you of the adjournment and advised you to appear on 11th April 2012. On 11th April 2012, you and Mr Gendua did not attend and the Court granted the State's application for a bench warrant to be issued against you.

9. Mr Gendua further explained that on the morning of 11th April 2012, he was travelling up from Goroka where he is based to attend the matter when his motor vehicle experienced a mechanical problem. As a result, he did not make it to Court in time, although he did contact a staff at Kundiawa National Court and informed her of his dilemma. When he eventually arrived at the Kundiawa National Court, the Court had risen. Shortly after that, he found out that the Court had issued a bench warrant for your arrest. In my view, what Mr Gendua has done is exemplary of a lawyer doing his utmost best in protecting his client's interest, even under trying conditions. He must be commended for his professionalism in the handing of this matter but that is as far as he can go. Beyond that, it is a matter for you to explain.

10. On your side, you explained that after the Parliament had voted for the deferral of the 2012 National General Election, you tried to come to grips with the reality of the situation and it troubled you. As a State Minister you voted in favour of the deferral of the 2012 National General Election and you were under extreme pressure because after the decision, it brought enormous pressure and disapproval from the wider section of the community in the country. As a State Minister, you sat at NEC meetings to deliberate and discuss ways to amicably resolve the conflict. By midday on 11th April, 2012, you realised you had missed the time to appear before the Court and expressed remorse for failing yourself and the Court.

11. You also said you were charged by the police for attempted murder and the substantive matter CR No 1552 of 2010: The State -v- Guma Wau is pending trial at Kundiawa National Court. You have denied the allegation and will defend the charge. When the Court enquired with the State prosecutor Ms Mauta as to the status of your case, she informed the Court that your case and the case involving your co-accused Neng Peter Tei are awaiting trial. She further informed the Court that on 19th March 2012, the State presented an indictment against both of you before Ipang, AJ. At that time, your lawyer made an application to quash the indictment against you and Mr Tei. That application was refused and the State was allowed to proceed with the indictment as presented. Given this background information, I gather, the State has been ready to prosecute you and Mr Tei at anytime, especially during this circuit had you presented yourself before the Court on either of those dates.

12. Given your past two non appearances, thus delaying the prosecution of the charge against you and Mr Tei, the State has now called for variation of the bail conditions and you through Mr Gendua do not oppose the State's application. The proposed variation is as follows:

(a) You are to pay K2,000.00 cash bail in addition to the cash bail of K1,000.00 already paid, thereby giving a total of K3,000.00 cash bail; and

(b) You are to appear at every National Court call-over at Kundiawa National Court and must make appearance at the National Court at Kundiawa whenever required.

13. Ms Mauta submitted these conditions should not be seen as a punishment for your failure to attend Court on those previous occasions, but as a symbol of reaffirmation of your commitment to the Court if your application is successful and your bail is extended. This is because bail conditions are orders of the Court and must be adhered to by all persons including you. I agree with these submissions.

14. You must understand, and in case, you have not seriously taken to heart what it means to be given bail with certain conditions, I must remind you that giving bail to you does not give you licence to wonder off and turn up at Court whenever you like. As a condition for bail, you were and are required to appear at the National Court call-over when required to do so. You know that very well and it baffles me that you simply did not make any effort at all to attend. You gave priority to your job. Your job was more important than your duty to the Court.

15. May I also remind you that you have been charged with a very serious offence. Police have alleged that you have attempted to kill another person. This offence carries a prescribed maximum penalty of life imprisonment under section 304 of the Criminal Code, Ch 262. When the Court granted bail to you, in return, it expected you to faithfully honour the conditions attached to it.

16. You were aware of the dates of 02nd and 11th April 2012 but you said you were attending to pressing national issues concerning the deferral of 2012 National General Election in Port Moresby on those dates. In other words, you made a deliberate decision to stay in Port Moresby despite an obligation to attend before the National Court call-over on either of those dates. In my view, pressing national issues such as the deferral of 2012 National General Election is not a satisfactory explanation for your failure to attend the National Court call-over.

17. Court orders including bail conditions must be complied with or obeyed by all persons. Where members of the National Parliament like you, do not comply with the orders of the Court, ordinary people will and are entitled to ask questions why senior citizens, especially members of the National Parliament do not comply with orders of the Court. They ask if there are two laws, one for the "big people" and the other for the "small people". I, too, must ask the same question because when I read your affidavit filed in support of this application, it is apparent you deliberately decided to attend the NEC meetings and the Parliament session instead of attending Court on either dates.

18. I am sure you will agree with me that, apart from you, there are other accused persons out on bail awaiting trial here in Kundiawa. They are on what we commonly say, the "wait court" list. Some of them come from remote parts of this province like Gembolg, Gumine and your own electorate of Kerowagi, to name a few. For them, access to Kundiawa town where the National Court is located is either difficult or non-existent because of either poor road conditions or non existence of roads. If there are roads, the regular PMV transportation system is inadequate. Yet, they make every effort to turn up at the National Court call-over. If they can do so, I find it difficult to accept your explanation for your non attendance on those dates. Put simply, you had easy access to Jacksons airport and could have travelled into Kundiawa on one of the airlines operating between Port Moresby and Kundiawa via Mt Hagen or Goroka for the National Court call-over.

19. I would not have hesitated to revoke your bail and place you in custody had it not been for your voluntary appearance yesterday. I am sure, by now you have understood the enormity of your actions. I accept your apology. And so for now, as this is the first time a bench warrant has been issued against you, and that you have voluntarily appeared, I will not revoke your bail. Instead, I reprimand you and warn you not to repeat such conduct in future. Because of your actions, you could have landed yourself in custody at Barawaghi CIS as of today. If that happened, you will have denied your people from Kerowagi, representation on the floor of Parliament, let alone putting your chances for seeking re-election to public office in serious jeopardy, noting that the 2012 National General Election is just around the corner. So, may this case be a lesson to you and of course, others that Court orders, in this case, bail conditions must be complied with or obeyed at all times.

20. The orders of the Court are:

1. The application for revocation of bench warrant is granted and the bench warrant of 11th April 2012 is set aside forthwith.

2. The application for variation of bail conditions is granted as follows:

(a) You shall pay K2,000.00 cash bail in addition to the cash bail of K1,000.00 already paid, thereby giving a total of K3,000.00 cash bail; and

(b) You shall appear at every National Court call-over at Kundiawa National Court and must make appearance at the National Court at Kundiawa whenever required.

3. The substantive matter CR No 1552 of 2010: The State -v- Guma Wau is adjourned to the next National Court call-over at Kundiawa National Court on Monday 07th May 2012 at 9:30 am.

____________________________________
Gendua & Associates Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent