Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Mangape [2012] PGNC 64; N4722 (6 June 2012)

N4722

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 485 OF 2011

THE STATE

-V-

NIXON MANGAPE

Wabag: Gauli, AJ
2012: 6 June

PRACTICE AND PROCEDURE – Application to set aside bench warrant – Bench warrant executed before the application to set aside is made – Where the bench warrant is already executed application to set it aside is refused.

Cases Cited:

Nil

Counsel:

Paraka Lawyers, for the Applicant
Public Prosecutor, for the State

6 June, 2012

RULING

1. GAULI, AJ: The applicant Nixon Mangape applied to set aside the bench warrant and to reinstate his court bail.
   
2. The brief facts are as follows. The applicant was charged on one count of grievous bodily harm. He was represented by Paul Mawa Lawyers. On the 10th of February 2012 when the matter came before me, the accused was present but his lawyer failed to attend. Matter was adjourned to the next call-over in May 2012. There was no National Court sitting in May due to my term as Acting Judge had expired and I was waiting to be sworn in on my next appointment. The Wabag National Court circuit commenced on the 4th of June 2012. I did the Call-over at Baisu jail for those in remand.
   
3. The Call-Over for those on bail was held on the next day, 5th June. During the Call-Over, the accused and his lawyer failed to attend. The notices for the call-over date were issued a week before. On the application by the State, I issued a bench warrant for breach of bail under Section 10 (1) of the Arrest Act.
   
4. The applicant's reasons for not attending the court on the 5th of June 2012 was due to him not been informed by his lawyer of the date. He only learnt from a friend on the 5th June about 12.00 noon that there was a bench warrant issued against him by the Court. So he made his way down to Wabag National Court but he arrived late due to the poor road conditions and there was a tribal fight along the highway.
   
5. I have considered the reasons for his none attendance in Court. It would appear to me that he has not been communicating with his lawyer since the matter was last adjourned in February 2012. He is aware that the matter was adjourned for the next call-over in May. It does appear to me that he failed to inquire with the Wabag National Court if the matter will be listed in May. If he has not being in contact with his lawyers, then it must be his responsibility to inquire with the Wabag National Court of his case. He cannot put the blame on his lawyers.
   
6. He only came down to Wabag after he was told that there was a bench warrant issued against him by the Court. He was not coming to attend the court in a usual way and his coming was delayed due to poor road conditions and tribal fights. He was arrested on bench warrant before he filed this application to set aside the warrant. Where the bench warrant has already been executed before the filing and hearing of the application to set it aside, the Court would refuse to grant the application. For the reasons given I refused to grant the application. And I make an order that his bail be forfeited pursuant to section 22 (1) of the Bail Act.
   
7. The Orders of the Court are:
   
   1. The application to set aside the bench warrant is refused.
      
   2. The Applicant is remanded in custody.
      
   3. Matter adjourned to 18th June 2012 for mention.
      
   4. Applicant's Court bail of K1000.00 forfeited to the State.
      

____________________________________
Paraka Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State/Respondent