N371(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

(APPEAL NO. 327 OF 1981)

BETWEEN:

LEMBA TAKAIL
APPELLANT

AND:

WILLIAM WULAT
RESPONDENT

Kieta: Bredmeyer J
15 February 1982; 19 February 1982

CRIMINAL LAW - Bail Act-forfeiture of bail. Application for revocation or variation of order forfeiting bail. Defendant arrived late. Part only of his bail should be forfeited in the circumstances.

BAIL ACT, S. 22(3).

REASONS FOR DECISION

BREDMEYER J: This is an appeal against a forfeiture of K150 cash bail by the Kieta District Court on 3rd November, 1981. The defendant LEMBA TAKAIL, was bailed to appear at 9.00 a.m. on that day. He did not appear, and bail was correctly forfeited by the Magistrate Mr. Jacob Toroken and a warrant of arrest issued. On the facts before Mr. Toroken the forfeiture was not improper.

The defendant appeared in the afternoon of that day and explained why he was late to the Clerk of Court who wrote a note to Magistrate Mr. Crim Karapo as follows:

"FOR YOUR CONSIDERATION PLEASE AS TO WHETHER FORFEITURE OF BAIL REMAINS" LEMBA TAKAI (labourer with Te Marua) approached his boss yesterday morning saying he must come to Court to collect his bail - his Supervisor explained they were extremely busy and he could come later in the day and collect it. This was a misunderstanding however, as they did not really understand his Pidgin - he was stating he had a case and was on bail. At 9 a.m. 3/11 the police applied for forfeiture of bail and W/A was issued. At 1.30 p.m. 3/11 the Supervisor and Lemba Takail arrived at Court and the police took Lemba into custody. No bail was allowed by the Court so as it stands he will be in custody till 18.11.81. The Manager of Te Marua rang Inspector Benjamin yesterday about applying for re-instatement of bail and the Inspector told the Supervisor to tell his story to the Court.

IF BAIL CAN’T BE RE-INSTATED SURELY THIS MAN CAN BE ALLOWED FURTHER BAIL AS HE DID COME TO THE COURT FOR HIS CASE —

— AND THE POLICE WERE NOT REQUIRED TO FIND & ARREST HIM.

FOR YOUR CONSIDERATION & ACTION ORIM

(sgd) M.G. DILLON"

Magistrate Karapo considered this note and affirmed the forfeiture Order of his Senior Magistrate made in the morning. Although the Clerk of Court’s note did not refer to s.22(3) of the Bail Act, it was in essence an application under that subsection for a variation or revocation of the forfeiture. Mr. Karapo refused the application and I gave leave to the appellant to amend his notice of appeal to appeal against Mr. Karapo’s decision.

I do not consider the defendant’s reason for not attending on the morning of 3rd November was convincing. He asked his boss to take him, his boss misunderstood why he wanted to go to the court, his boss was busy, and so took him to court in the afternoon. The failure to get to the Court was the defendant’s fault. He need not have asked his boss at all for a lift; he could have gone to court direct from his home on that day.

However, in considering the application for variation or revocation of forfeiture of bail, I think that the magistrate should have given consideration to two matters. First the defendant did attend at 1.30 p.m.; he attended the court albeit late which is better than not having attended at all. Secondly, the case had been listed at 9.00 a.m. on that day for mention only, not for hearing. Thus the police witnesses were not inconvenienced by the defendant’s non-attendance in the morning. In those circumstances I think that a just decision would have been to allow part only of the bail to be forfeited and to re-instate part of it and that the Magistrate’s failure to do so amounts to a substantial miscarriage of justice under s.236 of the District Courts Act. It is not appropriate now for me to re-instate the bail as the defendant has since been tried, convicted and fined for the assault. In the circumstances I substitute for the decision of Mr. Karapo a decision that K50 only of the bail is forfeited and I order refund of K100 to the appellant.

APPEAL ALLOWED. ORDER REFUND OF K100 OUT OF FORFEITED BAIL MONEYS TO THE APPELLANT.

Solicitor for Appellant: Public Solicitor
Counsel: D. Lightfoot
Solicitor for Respondent: Public Prosecutor
Counsel: E. Kariko