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Parakas v The State [1985] PGSC 16; [1985] PNGLR 224 (2 August 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 224 - SCR No 12A of 1984; Joe Parakas v The State�

[1985] PNGLR 224

SC298

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SPECIAL CONSTITUTIONAL REFERENCE NO 12 OF 1984 AND SUPREME COURT REFERENCE NO 12A OF 1984 RE JOE PARAKAS

V

THE STATE

Waigani

Kidu CJ Amet Los JJ

29 March 1985

2 August 1985

CONSTITUTIONAL LAW - Underlying law - Adoption of principles of natural justice - Application of common law - Not creating constitutional rights - Not involving application or interpretation of a constitutional law - Constitution, s 59.

CONSTITUTIONAL LAW - Constitutional reference - Interpretation or application of a constitutional law - Principles of natural justice - Adoption of not creating constitutional rights - Constitution, s 59.

PRACTICE AND PROCEDURE - Constitutional reference - Interpretation or application of a constitutional law - Principles of natural justice - Adoption of not creating constitutional rights - Constitution, s 59.

CRIMINAL LAW - Bail - Forfeiture - Application to vary or revoke - Application to be made within fourteen days of forfeiture - No power to revoke where application outside prescribed time limit - Bail Act 1977, s 22.

The Constitution, s 59, provides that:

N2>�(1)��� Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

N2>(2)����� The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.�

The Bail Act 1977, s 22(3), provides that a person who is affected by an order forfeiting his bail, �may within 14 days after the making of the order, apply to the court making the order for variation or revocation of the order�.

Held

N1>(1)����� (Los J dissenting) The requirements of natural justice under the Constitution, s 59, are merely common law principles specifically adopted as part of the underlying law: they do not gain any special constitutional status by virtue of s 59.

N1>(2)����� (Los J dissenting) A question of law involving the application of the Constitution, s 59, to the provisions of the Bail Act 1977 does not involve the interpretation or application of a constitutional law as required by the Constitution, s 18(2), and cannot therefore be referred or determined as a constitutional reference pursuant to s 18.

N1>(3)����� An order varying or revoking an order forfeiting bail cannot be made on an application made outside the fourteen day time limit prescribed by the Bail Act 1977, s 22(3).

Cases Cited

Avia Aihi v The State [1981] PNGLR 81.

Fallscheer v Iambakey Okuk [1980] PNGLR 101.

Iambakey Okuk v Fallscheer [1980] PNGLR 274.

Police, Commissioner of v Tanos [1958] HCA 6; (1958) 98 CLR 383.

Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.

R v Gaming Board for Great Britain [1970] EWCA Civ 7; [1970] 2 QB 417.

Ridge v Baldwin [1963] UKHL 2; [1964] AC 40.

SCR No 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150.

References

This was the hearing of questions referred for the determination of the Court pursuant to the Constitution, s 18, and the Supreme Court Act (Ch No 37), s 21.

Counsel

S Lupalrea, for the appellant.

V Noka, for the respondent.

Cur adv vult

2 August 1985

KIDU CJ: The three questions referred for determination are as follows:

N2>(a)����� �Where a court makes an order forfeiting bail and/or sureties for non-appearance by an accused, is such order invalid as being in breach of s 59 of the Constitution when it is shown either at the time of forfeiture or on some subsequent occasion that the non-appearance of the accused was caused by circumstances beyond his control.�

N2>(b)����� �If the answer to the above question is in the affirmative, can any judge of the National Court make an order directing repayment of the bail and/or sureties where appropriate.�

N2>(c)����� �Has a judge of the National Court power to set aside an order forfeiting bail and/or sureties made under the provisions of s 22(1) of the Bail Act 1977, when such forfeiture order was made at a time in excess of fourteen (14) days prior to the application for relief from such forfeiture.�

Questions (a) and (b) are referred to this Court for consideration under the Constitution, s 18(2) (SCR No 12 of 1984) and question (c) is reserved for this Court�s determination pursuant to the Supreme Court Act (Ch No 37), s 21, (SCR No 12a of 1984). As the three questions were dealt with together I answer the questions in the one judgment.

The facts out of which the above questions arose are outlined in the judgment of the learned judge who referred the three questions:

�On 10 March 1984, the accused was arraigned before Woods J and a plea of not guilty was entered. The charge in the indictment is again stealing as a servant although apparently the owner of the store has been changed from Kirwina Trade Store to Burns Philp (PNG) Ltd and the amount has been now brought in at K500. On 13 March the accused�s bail was reduced by the National Court from K300 to K200 and the reporting condition was changed from �every Friday� to �Report to the Arawa Police Station each second Friday�.

The court file then carries the notation that it came before Kapi Dep CJ on 18 May, but could not be dealt with as the time did not permit. The bail was extended on the previous conditions, to appear at the next sittings.

However, although the matter was called before McDermott J on 19 June, a date which would appear to indicate that the matter was dealt with quite late in the sittings, there was no appearance by the accused. The counsel were Mr Fitzsimmons, for the State and Mr Poloh, for the accused. A bench warrant was issued for the arrest of the accused and his bail was forfeited. The matter was stood over to the next sittings.

When I opened my sittings on 8 August this year there was no appearance by the accused, and in view of the fact that a warrant had been issued I simply stood the case over to the October sittings. However, on 15 August the accused did appear before me and through his counsel indicated that he had been in hospital during a substantial period of time in June and that was the reason why he had not appeared on his bail. He requested non-forfeiture of bail, or perhaps more accurately a revocation of that forfeiture order on the grounds, inter alia, that he was not given an opportunity to explain his absence. I stood the matter over till later in the sittings.

The accused again appeared before the court on 24 August although the warrant had not been executed upon him, and I granted bail in the sum of K100 without sureties to appear before the court at the next sittings. I indicated to his counsel I did not require him to go into the witness box to give evidence that he was in fact in the hospital at Tearoki during the June sittings as there was still no production of corroborative evidence in the way of a medical certificate, and in any case, I did not see how I could revoke the bail forfeiture under the provisions contained in the Bail Act 1977. In a perhaps somewhat unfortunate copying of wording from other jurisdictions, s 22(3) of the Act gives a person only a maximum period of fourteen days in which to apply for a variation order after bail has been forfeited. With the greatest respect it does seem to me that this time is a little short and indeed it is perhaps a little difficult to work out why any time limitation was inserted at all.�

Later, on 11 October 1984, Pratt J did set aside McDermott J�s forfeiture order.

QUESTIONS (A) AND (B)

Question (a)

The Constitution, s 59, provides as follows:

N2>�(1)��� Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by the name developed for control of judicial and administrative proceedings.

N2>(2)����� The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.�

Section 59 does not create any constitutional rights of the nature contained in Div 3 of Pt III of the Constitution, that is, rights such as the right to life (s 35), liberty of the person (s 42) etc, but it does two very important things. In subsection (1) thereof it makes provision as to where to find or look for the principles of natural justice, namely, in the underlying law. Subsection (2) is a direction to authorities such as the courts that it is a minimum requirement of natural justice to be fair and to be seen to be acting fairly. So the courts are required by s 59 to in fact practice fairness in their judicial deliberations. But the section does not lay down the criteria for fairness but leaves such matters to the statutes and the underlying law.

Question (a) does not involve the interpretation or application of a constitutional law. The Constitution, s 18(2), under which the question was referred, is quite specific � a reference to the Supreme Court pursuant to it must involve the interpretation or application of a constitutional law (that is, a provision in the Constitution or an organic law). The constitutional law we are concerned with (s 59 of the Constitution) neither requires interpretation nor application. It is a very clear and straightforward provision. There is no question of application involved as the principles of natural justice are not contained in s 59 but in the underlying law: see Premdas v Independent State of Papua New Guinea [1979] PNGLR 329 and Iambakey Okuk v Fallscheer [1980] PNGLR 274. Even the minimum requirement of natural justice mentioned in s 59(2) is part of the underlying law. In fact this minimum requirement is at the very root of the principles of natural justice. It is the desire for fairness which has prompted the courts to ensure, for instance, that those liable to lose their liberty or property are given the opportunity to be heard first.

I answer question (a) in the negative.

Question (b)

There is no need for me to concern myself with this question in view of my answer to question (a).

Question (c)

There cannot be any doubt that the fourteen days time limit in the Bail Act 1977, s 22(1), cannot be extended by a court: see Avia Aihi v The State [1981] PNGLR 81. But Pratt J set aside McDermott J�s forfeiture order on the basis that the order had been made ex parte. It is apparent from the National Court criminal file and Pratt J�s judgment that Mr Poloh of counsel represented the accused before McDermott J. There is no evidence as to what counsel said to the judge. I have checked the judge�s notebooks for June 1984 (both criminal and civil) and found no mention of the matter. I cannot, therefore, say what happened when the case was before the judge. It might be that the learned judge made his forfeiture order after Mr Poloh explained the reasons for his client�s absence but on the other hand Mr Poloh might have told the judge that he had no idea of his client�s whereabouts. I assume, in the absence of evidence to the contrary, that the learned judge made proper inquiries before exercising his discretion to forfeit the bail security.

As Pratt J points out in his judgment, it is unfortunate that this limitation of time crept into the Bail Act 1977. The circumstances in this country are such that such a restriction is uncalled for and unfair. For instance, there is little doubt that most people in Papua New Guinea, apart from their lack of education, know very little about legal matters. The National Court does not sit each month in circuits outside Waigani. In fact such circuits are visited every second month. So a person whose bail is forfeited during one of these circuits would make it difficult to take advantage of the fourteen day period if the judge makes his order, closes the circuit and returns to Port Moresby. By the time the next judge visits the circuit the fourteen day period will have long expired. For these reasons consideration should be given by the proper authorities to having the Parliament remove this fourteen day limitation period.

So long as a judge (or magistrate) exercises his/her discretion under s 22(1) properly no other judge (or magistrate) can set aside his/her forfeiture order after the expiry of the fourteen day time limit.

I have already pointed out that Joe Parakas was represented by counsel before McDermott J and also held that in the absence of any evidence to the contrary, McDermott J made his forfeiture order after proper inquiry.

Pratt J�s order setting aside McDermott J�s order was based on his finding that the former had made his order ex parte. Mr Poloh represented the accused so it cannot be said that there was an ex parte hearing. Pratt J�s order was wrongly based and must be quashed.

When a person is granted bail it is his responsibility (if he has a lawyer it is partly the lawyer�s responsibility) to inform the court the reason for his non-attendance at court or his non-compliance with his bail obligations.

I answer question (c) in the negative.

AMET J: There are three questions referred for the opinion of this Court, by the National Court. Two are referred under the Constitution, s 18(2), and the third has been reserved under the Supreme Court Act (Ch No 37), s 21. They arose out of the same case and concerned the Bail Act 1977, and so were heard together for convenience.

The questions referred under the Constitution, s 18(2), are:

N2>(a)����� �Where a court makes an order forfeiting bail and/or sureties for non-appearance by an accused is such order invalid as being in breach of s 59 of the Constitution when it is shown either at the time of forfeiture or on some subsequent occasion that the non-appearance of the accused was caused by circumstances beyond his control.�

N2>(b)����� �If the answer to the above question is in the affirmative can any judge of the National Court make an order directing repayment of the bail and/or sureties where appropriate.�

The question reserved under the Supreme Court Act, s 21, is:

N2>(e)����� �Has a judge of the National Court power to set aside an order forfeiting bail and/or sureties made under the provisions of s 22(1) of the Bail Act 1977, when such forfeiture order was made at a time in excess of fourteen (14) days prior to the application for relief from such forfeiture.�

I think that a brief account of the factual circumstances in this case will serve as a typical case to highlight the difficulties posed by the issue.

The accused was originally committed for trial from the Kieta District Court on 14 November 1983 on a charge of stealing as a servant. He was granted bail in the sum of K300 cash, with a reporting condition to the officer in charge of prosecutions each Friday. The matter first went before the National Court on 16 December 1983. On 10 March he was arraigned before Woods J and entered a plea of not guilty. On 13 March 1984 the accused�s bail was reduced by the National Court from K300 to K200 and the reporting condition changed from each Friday to �each second Friday�. The court file next carries a notation that the case then went before Kapi Dep CJ on 18 May 1984, but could not be dealt with as time did not permit. Bail was extended on previous conditions to appear at the next sittings. On 19 June 1984 the case was called before McDermott J but there was no appearance by the accused. A bench warrant was issued for his arrest and an order made for the forfeiture of his bail, and the matter stood over to the next sittings. On 8 August 1984 before Pratt J there was again no appearance and since a warrant of arrest had already been issued the case was simply stood over to the October sittings. However, on 15 August, the accused did appear before Pratt J and through counsel advised the court that he had been in hospital during a substantial period of time in June and that was the reason why he had not appeared on his bail. He made application for revocation of the order forfeiting his bail on the grounds, inter alia, that he was not given an opportunity to explain his absence.

Question (a)

I think it is desirable first to briefly examine the provisions enabling the grant of bail and the conditions pertaining to it. First, by virtue of the Bail Act, s 6, application for bail may be made at any time after arrest, detention or at any stage of a proceeding. Then s 9 stipulates that bail shall not be refused except on certain grounds set out therein. Section 15 provides for the issuing of a �bail certificate�, by the bail authority, to the person being granted bail:

N2>(a)����� stating that he is entitled to bail; and

N2>(b)����� specifying conditions (if any) of bail; and

N2>(c)����� containing such other particulars as are prescribed.

Section 15(2) provides that, �unless required by his legal representatives or other agent, a person granted bail shall retain in his possession at all times until his bail obligations are discharged, a copy of the bail certificate�. Part VI then provides for the �Obligations and Conditions Relating to Bail�. Section 17 thereof specifically provides for the �Obligation of Person Granted Bail� that:

�A person granted bail:

(a)����� Shall appear at the time and place specified by the bail authority and at every time and place to which, during the course of the proceeding the bearing may be from time to time adjourned; and

(b)����� Shall comply with all conditions of bail fixed under section 18.�

Section 18 provides, that �bail may be granted subject to conditions�. Part VIII, ss 20, 21 and 22 provide for variation, revocation of bail and forfeiture of security respectively.

A careful reading of s 21 on �revocation of bail� and s 22 on �forfeiture of security� suggests an anomaly in the current practice as I understand it, although it may vary slightly from one judge to another. As I practice it, when a case is called three times outside of the court, and there is no appearance, normally a public solicitor is present, and he may have had instructions on a previous occasion or he has not yet seen the accused, but on this occasion he has no instructions as to why the accused is not present. Usually a copy of the bail certificate would be on the file to disclose what the bail conditions were, which usually, if the case was stood over from the last sitting then bail would have been extended to appear at the next sittings of the National Court. If it is a fresh committal then the condition is usually the same, to appear at the next criminal sittings of the National Court. The State prosecutor then makes application for a warrant of arrest to be issued and he may or may not ask for forfeiture of cash bail or surety as the case may be.

Now, I think this is where the anomaly arises, that following the application for a warrant of arrest to be issued and an order by the court to that effect, it follows as a necessary corollary that bail is revoked though no specific application for that was made; and one can safely presume in these circumstances that the only basis for the assumed revocation of bail and issue of the warrant of arrest is the accused�s prima facie failure to comply with his bail conditions in not presenting himself on the first sitting day of the National Court, when his name was called.

Section 21 which specifically provides for revocation of bail provides:

N2>�(1)��� Where it is alleged that there are reasonable grounds for revoking bail granted to a person and the person appears or is brought before a court, the court shall consider whether the bail should be revoked.

N2>(2)����� If, after hearing all the evidence including that of the person granted bail and his witnesses (if any) the court is satisfied that the circumstances so require, it may:

(a)����� revoke the bail, discharge the person from his bail obligations and commit the person to a place of confinement ... .�

Section 22(1) provides:

�Where a person granted bail contravenes or fails to comply with his bail obligations, a court may make an order forfeiting the whole or part of the security as given by him to secure his bail obligations.�

A reading of s 21 would suggest that revocation of bail can only occur when allegations are made that there are reasonable grounds for revoking bail and that the person granted bail either appears of his own accord or in answer to his bail or he is brought before the court, and after the court hears all the evidence including that of the person granted bail and his witnesses (if any). If the court is satisfied that the circumstances so require, it may revoke the bail, discharge the person from his bail obligations and commit the person to a place of confinement.

Immediately after these seemingly detailed provisions for the presence of the accused and reception of all relevant evidence before bail can be revoked, s 22(1) on forfeiture of security conspicuously lacks any such requirement. I think this is significant when s 22 is considered and read together with s 21.

The present practice as I have noted is that a s 22(1) order is made following an order for the issue of a warrant of arrest which by necessary corollary renders the bail revoked, though the latter would seem to be in contravention of s 21. I think that this practice has been quite inconsistent with the Bail Act, s 21. A possible explanation for the requirements of s 21 may be that it is in relation to allegations of reasonable grounds upon which to revoke bail other than contravention of or failure to comply with bail obligations referred to in s 22.

I have come to the view, however, that s 22 specifically provides for the forfeiture of security given by the person granted bail. This is either by way of surety (s 22(2)(a)) or cash deposit (s 22(2)(b)). These moneys are forfeited. The significance of the conspicuous absence of detailed provisions as contained in s 21, is that, in my opinion, a s 22(1) forfeiture order need not necessarily be consequent upon the issuing of a warrant of arrest and/or a revocation of bail under s 21, as is the practice at present. I consider that because s 22, follows immediately after s 21, if it were intended that forfeiture of security were to follow as a consequence of the revocation of bail, then one would expect reference to it plus similar provisions as to presence of the accused and the need to hear all the evidence.

Yet another significant aspect of s 21 and s 22 is that s 21, which affects the liberty of the person granted bail, is stringent in its requirements, whereas s 22, which affects the property or pecuniary interests of the subject, though not any less important to the person concerned, does not contain similar requirements to s 21.

I consider that s 22(3) reinforces my view that s 22(1) is quite deliberately drafted in that form in contradiction to s 21. As 22(1) order is to be a summary, prima facie order, not necessarily consequent upon a warrant of arrest order or a revocation of bail order under s 21. Thus, although s 22(3) is available to a person affected by such an order, to seek a variation of it, it is difficult to understand why it was considered there was a need for any time limit at all, given the numerous possible combinations of reasons and circumstances which could prevent a person affected from making an application within the time prescribed.

Returning to the first question, I do not consider that the Constitution, s 59, calls for interpretation or application in relation to the Bail Act, s 22. The requirements of natural justice are not basic rights under Pt III, Div 3. They are merely common law principles specifically adopted as part of the underlying law. They gain no special constitutional status by virtue of s 59. They are the same principles, the minimum requirements of which are restated in leading authorities in our jurisdiction.

The right to and granting of bail is not an absolute unconditional right: Constitution, s 42(6). It is a qualified right under Pt III, Div 3(c).

Under the Bail Act, there are specific obligations under s 17(a):

�A person granted bail shall appear at the time and place specified by the bail authority and at every time and place to which, during the course of the proceedings the hearing may from time to time adjourn.�

These obligations are then specified on the bail certificate as to the day and date the accused is required to present himself to the National Court. There is a further note on the bail certificate that �you are required to keep this certificate in your possession at all times�. There is provision under s 18 for the bail authority to impose further conditions such as cash sureties and reporting conditions. All these obligations and conditions are to ensure that the person granted bail honours his bail obligations.

Given these circumstances and the interrelationship of s 21 and s 22 as I have discussed them, I do not consider that a s 22(1) forfeiture order is in breach of the requirements of the Constitution, s 59. It is not a final and conclusive order. The accused has been given plenty of notice and the obligation is upon him to present himself on the prescribed day, time and place.

Section 22(3) allows for application to be made by a person affected by the order to have his bail and/or sureties reinstated in the event of unforseen events causing his non-appearance on the nominated day.

Yet another anomaly which has occurred to me in these issues is the very much related subject of the order to issue a warrant of arrest for non-appearance from bail. I have discussed it briefly already in relation to the assumed or purported revocation of bail and the forfeiture of security therefrom. I do appreciate that the subject of the order for issuing of a warrant of arrest was not specifically argued, but I cannot help but draw the analogy because they are so interrelated. Under present practice, forfeiture of a security order follows from the order to issue a warrant of arrest. The apparent anomaly is that in the making of an order for a warrant of arrest to issue, the effect of which will be to affect the liberty of the subject, there is no requirement that the person to be affected be given the opportunity to explain his failure to attend. Perhaps it is of the very essence of the order that the subject is not present in person and the order is to bring him before the court. It may be argued that such person then has the opportunity available to him to explain his non-appearance and seek further bail when he is brought before the court on the warrant. There is no time limit for this application.

Now, I think the same could be said of the forfeiture order, that the person affected by the order has the opportunity under s 22(3) to apply for reinstatement of cash bail or sureties, or a revocation of the order, though there is a time limit prescribed within which to make such application. I consider this later in the third question.

It would follow from my answer that a forfeiture order can be made in the absence of the accused. An order can be made on the first mention in the National Court following committal if the obligations and conditions are specific and application is made by the prosecution. Section 22(1) does enable the court of its own volition to make such an order also. The power, however, is discretionary and I think it ought to be left to each judge to exercise it in his discretion in the circumstances as they present themselves to him.

I answer the question in the negative.

Question (b)

My answer to question (a) being in the negative, this question does not arise for consideration.

Question (c)

I have referred to the inappropriateness of the time limit of fourteen days within which a person affected may make application under s 22(3) for variation or revocation of a s 22(1) order.

We start on the premise that if application is made, within fourteen (14) days after making of the order, to the court making the order, that court has power to set aside, vary or revoke its own order made under s 22(1). There is no issue about this power.

The issue is whether the court has power to set aside, vary or revoke a s 22(1) order when application for relief is made after the fourteen (14) days prescribed by s 22(3). Unfortunately the wording of s 22(3) is quite specific, the application may only be made within 14 days after the order. It would follow that application cannot be made after fourteen (14) days. I have already expressed my concern and difficulty in understanding why any time limitation was considered necessary at all. I would strongly urge that the section be amended, deleting the fourteen (14) days time limit, and in its place to provide for application �within a reasonable time�, such as is one of the requisites of an application to set aside an ex parte order under the National Court Rules 1983, O 12, r 8(3)(a).

I would thus answer the question in the negative, by the strict construction of s 22(3). The right to make application is lost on expiry of fourteen (14) days. I think this result will cause grave injustice to persons who only become aware of the forfeiture order well after the expiry of fourteen (14) days. As much as I am desirous of construing an inherent power in the National Court to make, in such circumstances as seem to it proper, such orders as are necessary to do justice in the circumstances of a particular case (per s 155(4) of the Constitution), I am precluded from so extending the scope of s 155(4) by Avia Aihi v The State [1981] PNGLR 81.

The National Court being precluded by a law which validly regulates the right to review its own decision (the Bail Act, s 22(3)), Avia Aihi�s case holds that s 155(4) cannot be relied upon to empower the court to waive non-compliance with s 22(3).

I consider, however, that a person affected by a forfeiture order and who through no fault of his own is barred from making application under s 22(3) should not be left without redress. There seems to be no provision for appeal from a revocation of bail under s 21 or a forfeiture order under s 22(1) if the right under s 22(3) is exhausted.

I consider that by the authority of Avia Aihi v The State the right to review by the Supreme Court pursuant to the Constitution, s 155(2)(b), can be invoked in appropriate circumstances. I think, though this may be an arduous process, it ought to be available until s 22(3) is amended to allow for application within a reasonable time.

My answer to the question is therefore: No.

LOS J: Three questions were referred for the opinion of this Court by the National Court. The first two were referred under the Constitution, s 18(2), while the third one was referred under the Supreme Court Act (Ch No 37), s 21. The first two questions do not relate to the interpretation or application of a provision of a constitutional law, so they are not properly before this Court. However, in view of the practical importance of the questions and in view of the fact that this reference was argued together with the reference under the Supreme Court Act, s 21, and following the Supreme Court decision in the SCR No 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150, I intend to answer them.

Question (a)

�Where a court makes an order forfeiting bail and/or sureties for non-appearance by an accused, is such order invalid as being in breach of s 59 of the Constitution when it is shown either at the time of forfeiture or on some subsequent occasion that the non-appearance of the accused was caused by circumstances beyond his control?�

In my view there is no question that the requirement under the Constitution, s 59, that is, �the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly� applies to an accused who is on bail. Various Papua New Guinean cases have fully discussed the principle of natural justice. Greville-Smith J�s detailed analysis of the principle in Fallscheer v Iambakey Okuk [1980] PNGLR 101 was readily accepted by the Supreme Court in Iambakey Okuk v Fallscheer [1980] PNGLR 274. For general principle, I adopt Kapi J�s (as he then was) reference to a citation of the principle at 287:

�... In this regard it may only be necessary to refer to what Lord Reid said in Malloch v Aberdeen Corporation [1971] 2 All ER 1278 at 1282-1283: �The right of a man to be heard in his own defence is the most elementary protection of all and, where a statutory form of protection would be less effective if it did not carry with it a right to be heard, I would not find it difficult to imply this right.� �

Also a general principle extending to a deprivation of properties is stated by Dixon CJ, Webb J and Taylor J in Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395-6:

�For it is a deep rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard.�

Whether a decision-making process in relation to forfeiture of bail involves a judicial, quasi-judicial or administrative act is not in my view relevant and is beside the point. This point was fully described in Premdas v Independent State of Papua New Guinea [1979] PNGLR 329 and in Iambakey Okuk v Fallscheer at 280-281. But just for emphasis I refer to a statement by Lord Denning MR, in R v Gaming Board for Great Britain [1970] EWCA Civ 7; [1970] 2 QB 417 at 430:

�So let us sheer away from those distinctions and consider the task of this Gaming Board and what they should do. The best guidance is, I think, to be found by reference to the cases of immigrants. They have no right to come in, but they have a right to be heard. The principle in that regard was well laid down by Lord Baker CJ in Re HK (An Infant) [1967] 2 QB 617. He said at 630:

�... even if an immigration officer is not acting in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly.��

For an accused, bail money may be the only money he has for months. On many occasions the bail money is a contribution from his relatives and friends and an accused is required to pay it back after his case is over. If he is imprisoned the relatives and friends collect the money upon production of the bail receipt. The latter relieves him of his obligation. But if the bail is forfeited, his obligation awaits and hunts him even if he is in prison. As forfeiture of bail or a surety means a deprivation of property, an accused must be given a chance to explain why he was absent on the day he was required to appear in court. In this respect, I need only to refer to Greville-Smith J�s reference in Fallscheer v Iambakey Okuk (at 113) where he cites Lord Reid�s statement on the point in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 at 68- 69:

�... These were cases in which it had been held that the rule �audi alteram partem� applied. In this examination he refers �inter alia� to Cooper v Wandsworth Board of Works [1863] EngR 424; (1863) 14 CBNS 180; 143 ER 414 where Erle CJ held ... that �no man is to be deprived of his property without his having an opportunity to be heard�; where Willes J said that the rule was �of universal application� and where Byles J said that �although there are no positive words in a statute that the party shall be heard, yet the common law will supply the omission of the legislature�.�

I think that the wording in the Bail Act 1977, s 22(1), makes it rather necessary to give an accused a chance to explain why he has failed to comply with his bail obligation.

�Section 22(1)

Where a person granted bail contravenes or fails to comply with his bail obligation, a Court may make an order forfeiting the whole or part of the surety given by him to secure his bail obligations.� [Emphasis mine.]

In my view, the words �contravenes� or �fails� imply some wilful acts or a conscious decision on the part of the accused not to comply with his bail obligations. Before this happens, a decision to forfeit his bail in my view has no basis. A forfeiture implies that the accused was wrong and I think a mere absence from the courthouse is insufficient to come to such a conclusion.

Another aspect of the Constitution, s 59, relates to a possibility of deprivation of liberty. Although it seems from the question referred a deprivation of property is the main consideration, it is a logical conclusion that forfeiture of bail and sureties will lead to an eventual deprivation of the accused of his liberty. He has been found wrong because he had failed to turn up on the day designated and he may be arrested and detained while waiting for his trial. In my view a detention merely because he was not in the courthouse has a very shallow basis. This would offend against the tenor of the Bail Act. The object of the Bail Act as appears in s 3 is �to give effect to s 42(b) of the Constitution�.

The Constitution, s 42(b), states that:

�A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of Parliament) is entitled to bail ... unless the interests of justice otherwise require.� [Emphasis mine.]

It does seem to me that it is necessary to avoid offending this object unless there is a real reason for doing so and the reason I can think of in the context of the question under reference is where the accused deliberately, indifferently contravenes his bail conditions.

My somewhat stern view expressed earlier was not to mean to advocate subjugation of all the powers to forfeit bail. But to come up with a specific cut-off time is arbitrary and I think it would offend against the settled principles. The right granted by s 59, like any other constitutional right, is not diminished with a passage of time. But that is just one side of the coin. The State has a duty to bring offenders to court and the bail system has been designed to ensure that offenders do appear in court. Bail or sureties are extra means to force an accused to turn up. An accused knows in advance when and where to appear and he knows what the consequences may be if he does not turn up. It is incumbent upon him to turn up at the designated time and place. If he cannot, it is incumbent upon him to advise the court through friends or a lawyer of his reasons for being unable to appear. Where practical, the reasons should be stated in an affidavit and produced before the court.

Whether a bail should be forfeited is a matter for the presiding judge. The judges are aware of the many difficulties the accused persons face. The difficulties include lack of proper communication and the distances that the accused have to travel in order to reach the National Court sitting places. Indeed Pratt J in referring these questions has pointed out some difficulties. In some cases some accused persons give up turning up in court because everytime they turn up they are told their cases will not be heard this time but next time. The same thing happens again in the next sitting. Finally, some give up turning up. For the foregoing reasons I answer the question in the affirmative.

Question (b)

�If the answer to the above question is in the affirmative can any judge of the National Court make an order directing repayment of the bail and/or sureties where appropriate?�

The consequences of my reasons and answer to question (a) upon the question (b) is necessarily, �Yes�.

Question (c)

�Has a judge of the National Court power to set aside an order forfeiting bail and/or sureties made under the provisions of s 22(1) of the Bail Act 1977, when such forfeiture order was made at a time in excess of fourteen days prior to the application for relief from such forfeiture?�

As this question was argued together with the reference under the Constitution, s 18(2), my reasons to those questions have direct bearing on this question.

The reason for the time limit imposed by the Bail Act 1977, s 11(3), should be apparent: it ensures that an accused turns up, knowing that even if he has a good reason not to turn up, he has a very limited time in which he has to explain his reasons so that moneys forfeited may be restored to him. I think however that the time limit cannot be effective where it is shown that the forfeiture order was invalid because of a breach of the Constitution, s 59.

Mr Noka�s argument is that when the fourteen day limit is up, the accused cannot make any application for a revocation and that the limit does not offend against the accused�s right under the Constitution, s 59, because the accused is not denied of his right. He has ample prior notice in a written form in the bail document. It is incumbent upon him and/or his lawyer to advise the court of his reasons for not being able to appear on the designated date. It was argued that quite apart from this prior notice, if he is unable to utilise the grace period allowed by the Bail Act 1977 for some reason, he has an avenue available to him under the Constitution, s 155. Indeed an accused person is given a prior notice. This notice forms a part of the bail document containing details of the time and place to appear and the conditions, if any, of bail. Strictly speaking however, the notice is substantially aimed at getting the accused to turn up for the hearing of a criminal charge against him. It is not the main aim of the notice to get an accused to appear and argue whether or not his bail could be forfeited. No doubt an accused does have an avenue open to him under the Constitution, s 155. But the use of this right is very limited; he has to show that there are �exceptional circumstances where some substantial injustice is manifest, or the case of special gravity� before the power can be exercised in favour of him: Avia Aihi v The State [1981] PNGLR 81. Bail applications, or applications for variations or revocations of bail, are now so numerous and I am fearful of an idea that there might be numerous applications for a review by the Supreme Court under the Constitution, s 155. I do not think s 155 is meant for this general type of application.

In the absence of the rules of court governing procedure in criminal matters, Pratt J acceded to an argument by counsel that an order forfeiting bail by McDermott J at Kieta on 19 June 1984 was analogous to an ex parte order made and set aside under the National Court Rules 1983 O 12, r 8(3)(a).

In my view there is a further reason to support such an argument. A decision to forf it baile or sureties merely upon single evidence, that is, the evidence of the accused�s absence from the courthouse without an explanation does not have the same status as where the court has made a decision upon evidence properly produced before it. This status is reflected in the Bail Act itself. Normally, the Court that presides over a matter becomes functus officio upon final determination of the matter. The Bail Act, s 20(2), allows the terms and conditions of bail to be varied by a court �which has jurisdiction not lower than the jurisdiction of the court which granted bail�. The Bail Act, ss 22(3) and 22(4), allows a court of the same hierarchy to vary or revoke a forfeiture order. This status changes upon expiry of the time limit imposed in s 22(3). Clearly therefore, a court of equivalent jurisdiction has no general power to vary or revoke any forfeiture order after the time limit. I say �general� power for certain reasons. In some cases, as in Joe Parakas� case, an order to forfeit bail is invalid from the beginning because it has contravened the Constitution, s 59. Whether this is �discovered� before or after the statutory limitations, the order is still invalid. A National Court judge can set aside an order by another judge upon an application made outside the time limit. However, on an occasion such as envisaged by the Bail Act, s 21, where, after considering all the evidence, the court in its deliberate judgment discounts the accused�s evidence and orders a forfeiture of bail or sureties, such an order cannot be set aside outside the time limit because it has gained a final or permanent status which can only be varied by a higher court. This can cause hardship on many accused persons. In certain circumstances the limit of fourteen days may be oppressive but I do not wish to dwell on this point as it was not raised in the arguments before the Court. It does not affect the order by Pratt J. But I certainly think that the fourteen day limit has very little basis. I would recommend that this fourteen day limit be increased to be more meaningful and to accommodate the various difficulties I referred to earlier.

In the meantime however, my answer to question (c) except as aforesaid is, �No�.

(By majority) Questions (a) and (b) not answered Question (c) answered in the negative

Lawyer for appellant: N Kirriwom, Public Solicitor.

Lawyer for respondent: E Kariko, Acting Public Prosecutor.