555

Chapter 4

CRIMINAL PROCEDURE
This chapter will deal with the principal criminal procedure legislation excluding those
matters of trial procedure in the Criminal Code which are dealt with in the following
chapter. The principal pieces of legislation annotated are the Arrest Act, Search Act and
the Bail Act.
Any discussion of criminal procedure must depart from the provisions of s 37 of the
Constitution, which contains a number of detailed requirements guaranteeing the rights
of every person in Papua New Guinea to the full protection of the law. This section is
annotated in the previous chapter but it bears repetition that the principle of innocence
until proof of guilt is enshrined in s 37(4)(a) of the Constitution, which provides that:

"A person charged with an offence -

(a) shall be presumed innocent until proved guilty according to law, ..."

Search and entry - police investigation

In carrying out investigations and searches, the Royal Papua New Guinea Constabulary
does not have any general power to enter premises to search for people or property. This
is constitutionally recognised in the rights to privacy (s 49 of the Constitution) and to the
right to freedom from arbitrary search and entry under s 44:

"No person shall be subject to the search of his person or property or to entry of his
premises, except to the extent that the exercise of that right is regulated or restricted
by a law -

that makes reasonable provision for a search or entry in certain circumstances, or

that complies with Section 38 Constitution."

Against this constitutional background, the Search Act 1977 was passed. Under the Act,
a policeman may search a person where he has reasonable grounds for believing the
person has stolen goods or anything for the commission of an indictable offence: s 3(1).
Also, the police may search when a person is arrested or in lawful custody: s 3 (2) and
(3) . However, all searches must be carried out only with decency and reasonable force:
s 4. In developing standards of decency and reasonable force in searches, the courts must
start afresh as all duties and
556 Chapter 4

responsibilities imposed by the common law in relation to searches are abolished by the
Act: s 20.

Generally, all searches must be with a warrant (Search Act, s 6 and Constitution, s 44(a)
(i) and (ii)) which issues from a court if the court is satisfied that there are reasonable
grounds for believing that any building, craft, vehicle or place concerns a committed, or
about to be committed, offence. If anything is found in pursuance of the search warrant
and is seized by the police, a record of the things seized must be kept: Search Act, s 12.

Failure to comply with the provisions of the Search Act may be remediable as breaches
of the rights in ss 44 and 49 of the Constitution, with compensation actions under ss 57
and 58. There is, however, a specific civil action under s 17 of the Search Act 1977
against a person who wrongfully exercises the powers conferred by the Act. Such an
action may be brought in the National or District Court (within its civil jurisdictional
ceiling).

The great difficulty with the Act is that the vast majority of the people are unaware of
their rights, constitutional or statutory, irrespective of the remedies for compensation.

Summons and arrest

Summons
The accused (the defendant in summary offences) may be brought before a court by
means of either a summons or an arrest. A summons is the usual method for attendance
for summary offences before the District Courts. This is done by drawing up an
information for the offence: see ss 36 and 37 of the District Courts Act. The magistrate
then issues a summons ordering the defendant to appear at the court on a particular day.
Also, it should be noted that a private citizen may lay an information and commence a
prosecution in the lower courts - charges need not necessarily be preferred by the police.
Indictable offences, on the other hand, may not be the subject of private prosecutions,
and must be dealt with according to the provisions of the Criminal Code.

Arrest
A magistrate may issue a warrant to the police for a suspect's arrest if there is any
likelihood that the suspect will not obey the summons: District Courts Act, s 100. A
warrant of arrest issues if the suspect disobeys the summons. The Arrest Act has
consolidated much of the law in arrest, and abolished common law powers, duties and
responsibilities of arrest (Arrest Act, s 31) except in relation to contempt of Parliament.
Importantly, s 8 of the Arrest Act provides the circumstances where the court may issue
a warrant of arrest where it is impractical or undesirable to proceed by summons.
In some circumstances, a suspect may be arrested without a warrant. The police may
arrest without a warrant under s 3 of the Arrest Act, which essentially provides that no
warrant is needed where a police officer believes on reasonable grounds that a person is
about to commit, is committing or has committed an offence. A member of the general
public may make an arrest, but only when he or she believes, on reasonable grounds, that
an offence is being or has been committed: s 5.
 CRIMINAL PROCEDURE 557

When a police officer makes an arrest, with or without a warrant, and the person does
not resist the arrest, the officer is required to inform the person of the following matters:
(a) that he or she is under arrest;
(b) the reason for the arrest; and
(c) ask him or her to go to the police station.
If the person resists, however, the police may use such force as is reasonable in the
circumstances: s 14. Again, it is open to the courts to develop standards of reasonable
force in the circumstances.
After the arrest with or without a warrant, the police officer must take the arrested
person without delay to a police station: s 17.

At the police station

When a person is arrested, with or without a warrant, that person must be extended his or
her rights under the Constitution. Specifically, s 42(2) of the Constitution requires that
an arrested person must be:
(a) told the reason for the arrest and the nature of the offence with which he or she
is charged in a language he or she understands;
(b) allowed to communicate with family whenever practicable;
(c) allowed reasonable time for the preparation of his or her defence; and
(d) given adequate opportunity for legal representation and time to give
instructions to his or her lawyer.
Section 18 of the Arrest Act gives practical effect to these provisions by requiring the
officer-in-charge at the police station, when an arrested person is brought in:
(a) to release the person if he or she did not commit the offence, should not be
proceeded against or can be easily summonsed before the court;
(b) to detain the person, enter the name in the arrests register, and promptly inform
the person of:
(i) the reason for his or her arrest;
(ii) details of the charges against him or her; and
(iii) the person's right to communicate immediately and in private with a
member of his or her family or a personal friend and given instructions to a
lawyer of his or her choice (including the Public Solicitor if the person is
entitled to legal aid); or
(c) if the person is detained, to grant or refuse bail, and if not, take the person
before a court without delay (see also s 42(3) of the Constitution on the
requirement of bringing a person arrested before a court without delay).
In the clearest possible terms therefore, police officers cannot, under the Constitution
and the Arrest Act, detain a person arrested without granting bail or taking the person
before a court. However, the difficulty again is communicating this right to the vast
majority of the population.
A breach of these constitutional provisions is remediable by a compensation action
under ss 57 and 58 of the Constitution. Although there are common law tort actions for
false arrest, false imprisonment and assault, there is a civil remedy provided for any
wrongful exercise of powers under s 26 of the Arrest Act. This may prove procedurally
more straightforward to those that are fortunate to know their rights and how to enforce
them.
558 Chapter 4

At the police station, the police may question an arrested person. The police may also
question a suspect who has willingly agreed to accompany an officer to the police
station. Such an interview will be reduced to notes of a record of interview. However,
the necessity or desirability of interrogating the person is not a good ground for not
taking the person without delay before a court: Constitution, s 42(4). A person arrested
or a suspect has no obligation to answer police questions. Unfortunately, the police and
arrested persons are still not familiar with their rights. Moreover, the police are often
content to use records of interview rather than pursue full investigation. Confessional
evidence is all too frequently relied upon.

Before any questioning commences, the police officer conducting the interview ought to
caution the suspect (with words such as "you are not obliged to say anything but
anything you do say may be put in writing and may be used in evidence against you").
Secondly, the police must not use improper methods of force, threats or inducements to
extract statements or confessions. There is a requirement of voluntariness of statements
or confessions. If confessions, statements or records of interview are not voluntarily
given, they are inadmissible in evidence at the trial under s 28 of the Evidence Act. The
question of admissibility is tested by proceedings upon a voire dire.

Bail
There is a right to bail under s 42(6) of the Constitution. The Bail Act was passed in
1977 to give detailed effect to this right. Under bail, a person is released from custody to
attend court on a particular day and on an agreement subject to certain other conditions.
In the case of serious offences, a usual condition of bail is the payment into court of
money by the accused or a surety: s 19. Non-attendance results in forfeiture of the
money. For less serious summary offences, bail is usually granted automatically.
In the case of wilful murder or murder, only the National or Supreme Courts may grant
bail: s 4. In all other cases, any court may grant bail. The police are also empowered to
grant bail (s 5) when it is not practicable to take the person before a court within a
reasonable time. Bail applications can be made at any time after arrest and at any stage
in proceedings: s 6. Bail is generally to be granted except where:
(a) the person in custody is unlikely to appear at his or her trial;
(b) the offence was committed while the person was on bail;
(c) the offence in respect of which the person is in custody consists of a serious
assault, a threat of violence to another person, or possessing a firearm, imitation
firearm, other offensive weapon or explosive;
(d) the person is likely to commit an indictable offence;

(e) it is necessary for the person's own protection to be in custody;

(f) the person is likely to interfere with witnesses or the person who instituted the
proceedings; or

(g) the alleged offence involves the property of substantial value which has not
been recovered and the person, if released, would make efforts to conceal or
otherwise deal with the property: s 9(1).

If the bail is refused, written reasons are to be given to the person or his or her lawyer (s
16), and this does not prevent further applications being made for bail
 CRIMINAL PROCEDURE 559

to another magistrate or judge as the case may be: s 13. As can be seen from the annotations,
there have already been several judicial pronouncements on this Act.

SEARCH ACT
Chapter No 341
Being an Act -

(a) to regulate or restrict certain rights or freedoms referred to in Subdivision

111.3.C of the Constitution, namely -

(i) the freedom from arbitrary search and entry conferred by Section 44 of
the Constitution; and
(ii) the right to privacy conferred by Section 49 of the Constitution, so as
to -
(iii) provide for searches of individuals, premises and property in certain
cases; and
(iv) confer on persons making searches certain powers and duties; and
(b) to abolish certain rules of common law, and for related purposes.

Part 1 – Preliminary
1. Interpretation.
(1) In this Act, unless the contrary intention appears -
“court” means any court, other than a Village Court, and includes a Judge or
Magistrate of any court, other than a Village Court;
“craft” means -
(a) an aircraft or part of an aircraft; or
(b) a vessel or part of a vessel;
“information” includes a complaint for an offence;
“place of confinement” means a corrective institution, rural lock-up or police
lock-up;
“policeman” means any description of vehicle on wheels or runners;
“warrant” means a warrant issued under any law for the search of any place
including premises, a vehicle, aircraft, vessel, luggage or freight.
(2) For the purposes of this Act, a person believes something on reasonable
grounds if -
(a) he personally has that belief; and
(b) there are reasonable grounds for that belief.
560 Chapter 4

2. Application.
(1) Subject to subsection (2), this Act applies, notwithstanding the provisions of any
other law, to and in relation to any search whether by or under this Act or any other law.
(2) This Act does not apply to a search carried out under a warrant issued under the
National Intelligence Organization Act.

[S 2 subst Act No 25, 1984 (Search (Amendment) Act 1984), s 2]

See s 44 of the Constitution, which guarantees freedom from arbitrary search and seizure,
and s 49 which guarantees the right to privacy.

Part 11 – Searches of the Person

3. Circumstances where persons may be searched.
(1) Where a policeman believes on reasonable grounds that a person has in his
possession -
(a) anything that has been stolen or otherwise unlawfully obtained; or
(b) anything used or intended to be used in the commission of an indictable
offence, he may stop and search that person in accordance with Section 4
and, where applicable, exercise the power of seizure under Section 10(1).
(2) Subject to Section 4, where a policeman believes on reasonable grounds that
it is necessary to do so, he may, at the time of arresting a person, search his person, the
clothing he is wearing and any property under his immediate control –
(a) for the purpose of ascertaining whether he is concealing a firearm or
other offensive weapon; or
(b) for the purpose of preventing the loss or destruction of evidence relating
to the offence for which he was arrested, and, where applicable, may
exercise the power of seizure under Section 10(2).
(3) Where a person in lawful custody is to be detained in a place of confinement
he may, immediately before he is so detained, be searched at that place of confinement
by a policeman or a member of the Correctional Service, as the case requires in
accordance with Section 4, who may, where applicable, exercise the power of seizure
under Section 10(3).
(4) The owner of a craft or a person in command of a craft or a person authorised
by either of them or a policeman may in accordance with Section 4, search a person
intending to board the craft and, where applicable, may exercise the power of a seizure
under Section 10(3).
(5) Where a person in command of a craft suspects that a person on board the
craft constitutes a danger to the safety of the craft he may, or persons authorised by
him may, search that person in accordance with Section 4 and, where applicable, may
exercise the power of seizure under Section 10(4).
Doherty AJ said in The State v Benny Buen Iga [I990] PNGLR 146 at 149-150:

"The powers provided in s 3(4) are very wide and give an owner or a policeman or a
person in command of a craft a wide and unfettered power of search. There is no
suggestion in s 3(4) that the power must follow a
 CRIMINAL PROCEDURE 561

reasonable suspicion or grounds or be with authority in the form of a warrant from a

court. There is no explanation in the preamble to the Search Act why these wide powers
should be given in relation to a craft in contrast to any other form of search. Section 3(5)
also empowers a person in command of a craft to search a person on board the craft but
only if there is a suspicion that that person constitutes a danger to safety. This is in
contrast to s 3(4), as I have said there is no requirement for any suspicion or grounds. It
may be that Parliament had in mind the authorisation of searches commonly carried out
prior to boarding of aircrafts at airports which, if not legally authorised, would be
unconstitutional. However, there is no indication in the Search Act to this effect and the
provisions of s 3(4) must be given their clear meaning. The provision applies to a person
'intending to board the craft'. Since the power is so wide I consider that it must be strictly
interpreted in accordance with the clear meaning of the section and I find that the
expression 'intending to board the craft' limits it to persons who are about to go on board
a craft and does not extend to persons who are already aboard the craft or have not
reached the stage of intending or showing an intention to go aboard.
Once aboard the craft the powers of search vested in the owner, captain or policeman by
s 3(4) come to an end and the power to search a person on board the craft can only be
exercised if s 3(5) applies."

4. Powers and duties relating to searches of persons.

(1) Subject to this section, a person conducting a search of a person may touch
the body and clothing of the person being searched.
(2) Searches of the person shall be conducted with due regard to decency.
(3) A person conducting a search of another person shall not use any greater
force than is reasonable in the circumstances.
(4) Subject to Subsection (5), a search of a female shall only be carried out by or
in the presence of an adult female.
(5) Where a policeman has reasonable grounds to believe that a female he has
arrested is carrying a firearm or other offensive weapon he may, with due regard to
decency, seize the weapon.
(6) Subsection (5) does not justify the use of greater force than is reasonable in
the circumstances.

Part III – Searches of Premises, Aircraft, etc

Division 1 – Searches without Warrant

5. Circumstances where search may be made.

(1) Where a policeman has reasonable grounds to believe that a vehicle or
anything in a vehicle -
(a) has been stolen or otherwise unlawfully obtained; or
(b) has been used or is intended to be used in the commission of an
indictable offence, he may stop and search that vehicle and, where
applicable, exercise the power of seizure under Section 10(1).
562 Chapter 4

(2) Where a policeman believes on reasonable grounds that a person has in a

vehicle that he is using at the time, a firearm or other offensive weapon, he may search
the vehicle for the firearm or offensive weapon and, where applicable, exercise the
power of seizure under Section 10(2).
(3) Where a policeman believes on reasonable grounds that it is necessary to do
so, he may, at the time of arresting a person, search any vehicle the arrested person
was using at the time of his arrest, for the purpose of preventing the loss or destruction
of evidence relating to the offence for which he was arrested and, where applicable,
may exercise the power of seizure under Section 10(2).
(4) Where the owner or the person in command of a craft or a policeman has
reasonable grounds to suspect that a situation has arisen or is likely to arise involving
the safety of the craft he may or persons authorised by him may search -
(a) the craft; and
(b) any luggage and freight on board or about to be placed on board the
craft, and where applicable, may exercise the power of seizure under
Section 10(4).
(5) Where a policeman is in immediate pursuit of a person whom he believes on
reasonable grounds to have committed an indictable offence, he may, or persons
authorised him may, search any building or place in which he believes on reasonable
grounds that the person being pursued -
(a) is concealed; or
(b) has, in the course of his pursuit, concealed or deposited anything.
Amet J held in The State v Popo [I987] PNGLR 286:

"For the purposes of s 5(5) of the Search Act, the words 'immediate pursuit' are to be
taken as meaning immediate, physical pursuit, analogous to the notion of 'hot
pursuit', where there is no opportunity or time to take any other course of action
otherwise the opportunity for apprehension, seizure of property, prevention of
concealment of property or prevention of escape will be lost. If investigation,
follow-up or pursuit of a suspect, however notorious, is not 'immediate' then a
search warrant is required under s 6(1). Where a search is carried out without first
obtaining a search warrant where such a search is not in 'immediate pursuit', the
search is unlawful and any evidence obtained thereby is unlawfully obtained and
may be rejected."

Division 2 - Search Warrants

6. Issue of warrants.
(1) If a court, other than a Local Court, is satisfied by information on oath that
there are reasonable grounds for suspecting that there is in any building, craft, vehicle
or place -
(a) any thing with respect to which any offence has been or is believed on
reasonable grounds to have been committed; or
(b) any thing as to which there are reasonable grounds for believing it is
likely to afford evidence of the commission of any such offence; or
 CRIMINAL PROCEDURE 563

(c) any thing as to which there are reasonable grounds for believing is
intended to be used to commit any such offence,
it may issue a warrant to search that building, craft, vehicle or place.
(2) If a court is satisfied by information on oath by a commissioned officer of the
Police Force that there are reasonable grounds for suspecting that there is in any
building or buildings in a village or in any part of a village or village garden any thing
specified in Subsection (1)(a), (b) or (c), it may issue a warrant to search the building,
buildings, village, part of the village or village garden.
(3) Where a warrant has been issued under Subsection (2) the person, policeman or
policemen to whom the warrant is directed shall, where it is practicable to do so,
before executing the warrant, endeavour to obtain the co-operation of those persons
who, by custom, are regarded as the leaders of the village in respect of which the
warrant has been issued.
(4) Subsection (1) or (2) does not justify the use of greater force than is reasonable
in the circumstances.
Local Courts have been abolished by the Local Courts (Amendment) Act 2000.
Woods J said in Acting Public Prosecutor v Richard Saronduo [1988-1989] PNGLR 17
at 19:
"Section 6 ... appears to allow for two separate situations for the issue of search
warrants. Subsection (1) generally provides for the issuing of a warrant to search
any building, craft, vehicle or place and the only requirement is that the court be
satisfied by information on oath that there are reasonable grounds. There is no
restriction in subs (1) that the information be laid by a commissioned officer.
Subsection (2) is clearly laying down very careful requirements where a search
warrant is sought for a village or a building in a village, and the reference in subs (3)
to the police officer having to endeavour to obtain the co-operation of the village
leaders in the subs (2) situation only emphasises that subs (1) and subs (2) are to be
looked at as dealing with two different situations and thus the requirement for a
commissioned officer in the subs (2) situation is separate from the subs (1) situation.
The Parliament clearly wanted searches in a village situation to be carefully dealt
with by senior police officers: see The State v James Bero Popo [I987] PNGLR
286."

7. Direction of warrant.
A warrant may be directed to all or any of the following:-
(a) to a named person;
(b) to the officer for the time being in charge of police in a particular province
or place;
(c) to all members of the Police Force.

8. Form of warrant.
A warrant shall -
(a) describe the place to be searched; and
(b) state briefly the offence or matter of the information on which it is
founded; and
564 Chapter 4

(c) order the person to whom it is directed to search the place and seize any
thing he may find in that place which relates -
(i) to the offence or the matter of the information on which the warrant is
founded; or
(ii) to any other offence.

Division 3 - Powers in Aid of Manner of Search.

9. Powers and duties relating to searches of premises,
containers, etc.
(1) A person conducting a search under Sections 5 and 6 in any place (other than
in a baggage or freight container) and his assistants (if any) -
(a) have power -
(i) to enter and be in that place for the duration of the search and for that
purpose to use such force as is reasonably necessary; and
(ii) to the least extent necessary with the least amount of damage - to
interfere with the structure of the place for the purpose of search; and
(iii) to touch any article in that place; and
(iv) to stop and search any person found in that place in accordance with
Section 4; and
(b) shall, within a reasonable period after the conclusion of the search, restore
the place or cause the place to be restored as nearly as possible to the same
state of cleanliness and neatness that existed immediately before the
commencement of the search.
(2) A person conducting a search under Sections 5 and 6 in any baggage or freight
container and his assistants (if any) -
(a) have power -
(i) to enter and be in the place where the baggage or freight container is
situated and for that purpose to use such force as is reasonably
necessary; and
(ii) to the least extent necessary and with the least amount of damage - to
interfere with the structure of the container for the purpose of search;
and
(iii) touch any article in the container; and
(b) shall, within a reasonable period after the conclusion of the search, restore
the container and any article in the container as nearly as possible to the
same state of cleanliness and neatness that existed immediately before the
commencement of the search.
(3) Where a search of a container under Subsection (2) cannot otherwise be made,
a person conducting a search referred to in that subsection and his assistants may
destroy the container for the purpose of search.
 CRIMINAL PROCEDURE 565

(4) This section does not require the restoration of the structure of any place or
container interfered with by virtue of the powers conferred by this section.

Division 4 - Property Located During Search

10. Certain property may be seized.

(1) Where, during the course of a search that is authorized by this Act, a policeman
finds any thing that he believes on reasonable grounds -
(a) has been stolen or otherwise unlawfully obtained; or
(b) has been used or is intended to be used in the commission of any indictable
offence; or
(c) will provide evidence of an offence, he may seize that thing.
(2) For the purposes of Sections 3(2), 5(2) and 5(3), where the person searching
finds a firearm or offensive weapon he may seize it.
(3) For the purposes of Sections 3(3) and 3(4), where the person searching finds
any thing which in his opinion may be dangerous or inexpedient to leave in the
possession of the person searched he may seize that thing.
(4) For the purposes of Sections 3(5) and 5(4), where the person searching finds
any thing that in his opinion -
(a) constitutes a danger or is capable of constituting a danger to the safety of
the craft; or
(b) is capable of being used to threaten a person on the craft, he may seize that
thing.

11. Things seized may be handed to police, etc.

(1) Where a person seizes any thing under this Act and in his opinion that thing
may be evidence relating to an offence he may hand that thing to a policeman.
(2) Where the person in command of a craft is of the opinion that property seized
under this Act, on board the craft during the journey may be evidence relating to an
offence committed during that journey on the craft he may on behalf of the owner of
the craft give possession of that property to the person he believes on reasonable
grounds is a representative of the authority responsible for law enforcement in the
country where the offence will be tried.

12. Police to maintain record of things seized, etc.

Where any thing is seized by a policeman under this Act or is handed to a
policeman, he shall enter in a permanent register of property -
(a) a full description of the thing including where appropriate, a note of any
identification marks; and
(b) the time and date the thing was seized or received by him and in the case of
things received by him the name and address of the person who handed the
thing to him; and
(c) the place and the person from whom the thing was seized; and
(d) other details as are prescribed.
566 Chapter 4

13. Possession of certain property.

(1) Where any thing is seized under this Act by a policeman or is handed to a
policeman, the thing shall be deemed to be in the possession of the State.
(2) Where any thing is seized under Section 10(4) by a person, other than a
policeman, the thing shall be deemed to be in the possession of the owner of the craft.
(3) Where any thing is seized under this Act, other than under Section 10(4), by a
person other than a policeman -
(a) in the course of his employment - the thing shall be deemed to be in the
possession of his employer; or
(b) in any other case - the thing shall be deemed to be in the possession of that
person.
(4) Anything referred to in Subsection (1), (2) or (3) may be retained in
possession in accordance with that subsection for the purpose of examination and
investigation and in the event that a person is charged with an offence in relation to
that thing or in relation to which that thing is evidence the thing may, subject to any
order to the contrary of a court, be retained in that possession until the charge and any
subsequent proceedings on that charge have been determined.

14. Disposal of things seized under court order.

(1) In this section -
“forgery equipment” means -
(a) any forged bank note, or any special paper, revenue paper, frame, mould,
instrument, plate, wood, stone, material or other thing, of which the
possession without lawful excuse is an offence; or
(b) any counterfeit coin, or any instrument, machine, tool, or other thing used
or intended to be used for the purpose of coining, of which the possession
with knowledge of its nature and without lawful excuse is an offence;
“seized property” means any thing, other than forgery equipment, that is
seized by virtue of a power conferred by this Act.
(2) A court may order, on an application made to it by any person, that forgery
equipment seized by virtue of a power conferred by this Act be forfeited, defaced or
destroyed.
(3) Subject to Subsection (4), where any proceedings for an offence relating to
seized property or in which seized property is used as evidence have been determined
a court may order -
(a) that the seized property be delivered to the person appearing to the court to
be entitled to it; or
(b) that the seized property be otherwise disposed of in such manner as the
court thinks fit.
(4) Where a person is convicted on an offence relating to seized property and an
order has been made under Subsection (3), the operation of that order is suspended
until the determination of any appeal.
 CRIMINAL PROCEDURE 567

(5) On the hearing of any appeal the court may annul or vary an order made under
Subsection (3).

15. Disposal of things seized in certain cases.

(1) Where a policeman seizes any thing in a corrective institution under Section
10(3) he may hand that thing to a correctional officer at the institution.
(2) Where a person seizes any thing on board a craft under Section 10(4), he may
throw away, destroy or otherwise deal with that thing so that the craft and persons on
board the craft are no longer endangered.

Part IV – Miscellaneous

16. Powers of search conferred by other laws.

The provisions of this Act that specify the circumstances in which a person may be
searched are in addition to and not in derogation of a provision of any other Act or
subordinate enactment that confers a power of search.

17. Civil remedy for wrongful exercise of powers conferred by this

Act.
(1) A person who -
(a) exercises a power to make a search in breach of this Act; or
(b) exercises a power conferred by this Act, other than a power of search, in
breach of this Act; or
(c) performs a duty imposed by this Act in breach of this Act; or
(d) fails or refuses to perform a duty imposed by this Act, may be liable in
damages to the person aggrieved by that breach.
(2) An action under Subsection (1) may be brought -
(a) in the National Court; or
(b) in a District Court,
and in the case of a District Court the court has jurisdiction within the limits
prescribed by Section 21 of the District Courts Act.
(3) In an action under Subsection (1) a court may award exemplary damages.
(4) The provisions of this section are in addition to and not in derogation of the
provisions of the Constitution or any other law dealing with the enforcement of any
constitutional right, power, duty, restriction or prohibition.

18. Certain acts deemed to be within course of employment.

For the purposes of any civil proceeding, where the making of a search would
otherwise be within the scope of a person’s employment, the mere non-compliance by
an employee with a provision of this Act does not, of itself, take any act of the
employee, committed during the course of the search, outside the scope of his
employment.

19. Abolition of certain common law powers and duties.

(1) All powers at common law to issue search warrants are abolished.
568 Chapter 4

(2) All duties and responsibilities imposed by the common law in relation to
searches and search warrants are abolished.

20. Regulations.
The Head of State, acting on advice, may make regulations not inconsistent with
this Act, prescribing all matters that by this Act are required or permitted to be
prescribed or that are necessary or convenient to be prescribed for carrying out or
giving effect to this Act.

ARREST ACT

Chapter No 339
Being an Act -
(a) to specify the circumstances in which persons may be arrested; and
(b) to confer certain powers and duties on persons making arrests; and
(c) to abolish certain rules of common law,
and for related purposes.

PART 1 - Preliminary

1. Interpretation.
(1) In this Act, unless the contrary intention appears -
“authorized person” means a person empowered to make an arrest under this
Act or any other law or by a warrant;
“the commencement date” means 3 November 1977, being the date on which
the Arrest Act 1977 came into force;
“court” means any court, other than a Village Court, and includes a judge or
magistrate of any court, other than a Village Court;
“craft” means an aircraft or vessel;
“information” includes a complaint for an offence;
“officer-in-charge”, in relation to a police station at a particular time, means
the policeman who is in charge of the police station at that time;
“place of confinement” means a correctional institution, rural lock-up or
police lock-up;
“policeman” means a member of the Police Force;
“warrant” means a warrant issued under this Act or any other law for the
arrest of a person.
(2) A reference in this Act to an offence for which a penalty is imprisonment does
not include an offence in respect of which a sentence of imprisonment may only be
imposed in default of payment of a fine.
 CRIMINAL PROCEDURE 569

(3) For the purposes of this Act a person believes something on reasonable grounds
if -
(a) he personally has that belief; and
(b) there are reasonable grounds for that belief.

2. Application.
(1) Notwithstanding any other law but subject to Subsection (2) and to Section 24,
this Act applies to and in relation to an arrest for any offence whether made by or
under this Act or by or under any other law.
See generally ss 37, 42 and 76 of the Constitution.

See also Pt V, Div 1 of the Criminal Code, especially ss 245-262. The arrest sections of
the earlier versions of the Code were, in large part, repealed by the Criminal Code
(Arrest) Act 1977 (No 13 of 1977) in anticipation of the Arrest Act.

Part II – Circumstances Justifying Arrest Without Warrant

3. Arrest without warrant by a policeman.

A policeman may, without warrant, arrest a person whom he believes on reasonable
rounds -
(a) is about to commit; or
(b) is committing; or
(c) has committed,
an offence for which a penalty is imprisonment.

4. Arrest by a policeman for breach of bail condition.

(1) A policeman may, without warrant, arrest a person whom he has reasonable
grounds to believe and does in fact believe -
(a) has breached a condition of his bail; or
(b) is about to breach a condition of his bail.
(2) A person arrested under Subsection (1) shall not be released on bail by a
policeman but shall be brought before a court as soon as reasonably possible after his
arrest.

5. Arrest without warrant by member of the public.

Subject to any requirements imposed by the law creating the offence, a person, other
than a policeman, may, without warrant, arrest a person whom he believes on
reasonable grounds -
(a) is committing; or
(b) has committed,
an offence for which the penalty is imprisonment.
A citizen's power to arrest and detain another person under this Act is qualified by five
important conditions. They are:
570 Chapter 4

1. The person arrested must be found committing or must have committed a criminal
offence for which the prescribed penalty is imprisonment: Arrest Act, s 5.

2. The force used, if any, to make the arrest or to prevent the escape of the arrested
person must be reasonable in the circumstances: Arrest Act, s 14(2).

3. The means or method used to detain a person arrested must be appropriate or

reasonable in the circumstances: Arrest Act, ss 14(2) and 16(2). What is
reasonable depends on the given facts of each case. Relevant factors include the
seriousness of the offence, resistance to arrest and the imminent risk of escape.

4. Detention must only be for the purpose of enabling the person arrested to be
conveyed to a police officer, a police station, a court or a proper place of
confinement.

5. The person must not be detained for any period longer than is practically and
reasonably necessary for the purposes set out in item 4 above.

The detention of a woman, suspected of stealing "hubba-bubba bubble gum", in a brick

wall store room for eight hours was unlawful: Ronald Alexander McKenzie v The State
(1998) SC596.

See Ronald Alexander McKenzie v The State (1998) SC 596 for a discussion of a
citizen's power of arrest and search and their duties upon arrest.

6. Arrest without warrant for offence on board

craft.
Notwithstanding Sections 3 and 5 -
(a) where a person is committing, is about to commit or has committed; or
(b) where the person in command of a craft suspects on reasonable grounds that
a person is committing, is about to commit or has committed,
an offence relating to or affecting the use of the craft, the person in command or
person authorized by him may arrest that person without warrant.

7. Arrest by person executing warrant of commitment.

Where a person, the subject of a warrant of commitment, is not in custody at the
time the warrant is to be executed, the person authorized to execute the warrant may
arrest that person without a warrant.
Part III – Arrest Warrants

8. Issue of warrant by a court other than a Local Court.

Where an information is laid before a court, other than a Local Court, that there are
reasonable grounds for believing -
(a) that a person has committed an offence within the country; and
(b) that it would not be practicable or desirable to proceed against the person by
summons in that his arrest is necessary -
(i) to ensure his appearance in court to answer a charge for the offence; or
 CRIMINAL PROCEDURE 571

(ii) to prevent -
(A) the continuation or repetition of the offence; or
(B) the commission of a further offence; or
(iii) to preserve the safety or welfare of a member of the public or of the
person,
the court may issue a warrant for the arrest of the person.
Local Courts have been abolished by the Local Courts (Amendment) Act 2000.

The old Police Offences Acts provided powers of arrest without summons where the
arrest was necessary as proceedings against the person by summons would not be
effective. The word "effective" meant effective to ensure the attendance of the alleged
offender at court, but could not be limited to that meaning such that it would render the
power of arrest without warrant ineffectual: Gaigo Kakore v Sing [I975] PNGLR 104.

The accused does not have to be present for a right of audience by his or her counsel on
an application for a bench warrant, and an indictment may be presented against an
accused in his or her absence: R v Byrne [1971-1972] PNGLR 1 (Kelly J).

9. Issue of warrant by a Local Court.

Where a complaint for an offence has been issued in a Local Court the Court,
if it considers it necessary, may issue a warrant for the arrest of the defendant.

Local Courts have been abolished by the Local Courts (Amendment) Act 2000.

10. 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 in connection with those
proceedings, the court may issue a warrant for 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 delay.
Local Courts have been abolished by the Local Courts (Amendment) Act 2000.

Bredmeyer J said in The State v Gawi [1988-1989] PNGLR 118 at 119-120:

"It is true in one sense that criminal proceedings formally commence in the National
Court with the presentation of an indictment ... In another, broader sense, however,
criminal proceedings ... commence when the defendant is arrested or when
information is laid against him in the District Court. For the purpose of considering
bail, I think that is the preferred interpretation. The proceedings start in the District
Court on the laying of the information, the case then proceeds on a continuum, as it
were, through the District Court and the National Court. I see the proceedings as
one criminal proceeding processed by two courts rather than two proceedings in to
separate courts. The committal is the preliminary stage and the National Court trial
the final stage ...
572 Chapter 4

I would interpret s 10 ... in the context of a man committed for trial in the National Court
on a charge of, say, robbery and granted bail by the District Court, as follows:
'Where proceedings have been commenced before a [District] Court ... and the
[National] Court is satisfied that there are reasonable grounds for believing that a
person is in breach of a condition of his bail granted in connexion with those
proceedings, the [National] Court may issue warrant for the arrest of that person."'

Woods and Hinchcliffe JJ stated in The State v Gawi [1988-1989] PNGLR 118 at 94-
95:

"The words, 'Where proceedings have been commenced before a court,' in s 10 of the
Arrest Act to our minds mean, in this case, where proceedings have been commenced in
the National Court. The accused men were committed for trial to the National Court
from the District Court. When do the proceedings actually commence in the National
Court? ... We are of the view that the trial commences on the presentment of the
indictment but that is altogether different from when the actual proceedings commence
in the National Court ... We would agree that the proceedings do commence generally on
the laying of an information or even at the arrest stage ... but s 10 ... is referring to when
those proceedings actually commence in the National Court.

We are satisfied that the proceedings commence in the National Court on the day that
the accused is due to answer his bail as ordered by the District Court. Up until then, he is
still within the jurisdiction of the District Court ... the District Court still has jurisdiction
up until the day nominated for the accused's first National Court appearance.

So it seems to us that after commencement of proceedings in the National Court and also
any time after the indictment has been presented, an arrest warrant may issue pursuant to
s 10 ... But after presentment of the indictment, if the accused fails to appear for his
trial then an arrest warrant may issue pursuant to O 3 r 10(b) of the Criminal Practice
Rules."

11. Direction of warrant.

A warrant may be directed to all or any of the following: -
(a) to a named person; or
(b) to the officer for the time being in charge of police in a particular province or
place;
(c) to all members of the Police Force.

12. Form of warrant.

A warrant shall -
(a) name or otherwise describe the person against whom it is issued; and
(b) state briefly the offence or nature of the information on which it is founded;
and
 CRIMINAL PROCEDURE 573

(c) in the case of a warrant to arrest a defendant -order the person to whom it is
directed to arrest the defendant and to bring him before a court to answer to
the information and to be further dealt with according to law.

13. Execution of warrants.

Where a warrant is directed to a person he may, in accordance with Part IV, and
with assistants if necessary, arrest the person against whom the warrant is issued.

Part IV – Manner of Arrest, etc.

14. Manner of effecting arrest.
(1) Where an authorized person intends to make an arrest and the person to be
arrested -
(a) does not resist the arrest and the authorized person is aware that they speak
a common language, the authorized person shall at the time of arrest -
(i) advise the person he is under arrest; and
(ii) advise the person arrested of the reason for his arrest; and
(iii) request the person arrested to accompany him to a police station, to a
court or place of confinement, as the case may be; or
(b) does not resist the arrest and the authorized person is aware or ascertains -
(i) that they do not speak a common language; or
(ii) that he is unable to speak to the person arrested because the person
arrested suffers from some mental or physical defect, the authorized
person shall indicate by reasonable means to the person arrested that -
(iii) he is under arrest, and
(iv) he is to accompany the authorized person; or
(c) resists the arrest, whether by force or by refusing to move, or seeks to
evade arrest, whether by running away or by other means, the authorized
person may, subject to Subsection (2), use all reasonable means to make
the arrest.
(2) Subsection (1)(c) does not justify the use of greater force than is reasonable in
the circumstances.
The process of "arrest" under the Arrest Act ordinarily involves some deprivation of
liberty of the person arrested, that is, it involves some form of physical or nonphysical
detention: Ronald Alexander McKenzie v The State (1998) SC 596. In The State v
Songke Mai and Gai Avi [1988] PNGLR 56 at 69, Kapi DCJ stated that:

"arrest is the initial step of depriving a person of his liberty. To put the matter
differently, 'arrest' and 'detention' are two distinct procedures under the law and
deprivation of liberty, ... is common to both, .... The moment a person
574 Chapter 4

is 'arrested', he is 'detained' from that point on. 'Arrest' is very closely followed in
point of time by 'detention'. That is the law relating to 'arrest' and 'detention' in
relation to persons who are suspected of committing a crime".
In a situation of "near-riot" it was held not practicable for police officers to have
informed the accused of the grounds of arrest and, in any case, the evidence showed that
the appellant knew the general nature of the alleged offence for which he was detained:
Gaigo Kakore v Alan John Sing; Gaigo Kakore v John Pad Nasai [I975] PNGLR 104.

15. Warrant to be carried or produced.

Where a warrant issued under Section 8, 9 or 10 is directed to a person -
(a) in accordance with Section 11(a) or (b) - shall, when executing the warrant,
carry it with him and produce it on request; or
(b) by virtue of Section 11(c) only - shall, on request of the arrested person,
produce it as soon as practicable.

Part V - Duties to be Performed After Arrest

16. Duties of private citizen after effecting an
arrest.
(1) Where a person, not being a policeman, makes an arrest, he shall -
(a) as soon as practicable but subject to Subsection (2), hand the arrested
person over to a policeman or take the arrested person or cause him to be
taken to a police station; and
(b) subject to Subsection (2), use all reasonable means to prevent the arrested
person escaping.
(2) Subsection (1) does not justify the use of greater force than is reasonable in the
circumstances.

17. Duties of a policeman after arrest.

(1) Where a policeman makes an arrest he shall -
(a) take the arrested person without delay to a police station to be dealt with
under Section 18 or before a court; and
(b) subject to Subsection (2), use all reasonable means to prevent the arrested
person from escaping.
(2) Subsection (1)(b) does not justify the use of greater force than is reasonable in
the circumstances.

18. Duties of officer-in-charge of station.

(1) Where a person has been arrested and taken to a police station, the officer-in-
charge of the police station shall -
(a) immediately release the person if he considers that -
(i) the person arrested did not commit the offence for which he was
arrested or any other offence and there is no other reason to justify his
detention under this Act or any other law; or
 CRIMINAL PROCEDURE 575

(ii) there are good reasons why the arrested person should not be
proceeded against for an offence; or
(iii) proceedings can be effectively taken by way of summons against the
arrested person; and
(b) if he does not release the person under Paragraph (a) - take the person into
custody and enter in a permanent register of arrests the name of the person
and if it appears that the person arrested -
(i) has committed an offence - the nature of that offence; or
(ii) has been arrested for some other reason - that reason; and
(c) promptly inform the person arrested or cause him to be informed in
language he understands of -
(i) the reason for his arrest; and
(ii) details of the charges against him; and
(iii) his right, immediately and in private -
(A) to communicate with a member of his family or a personal
friend; and
(B) to give instructions to a lawyer of his choice, including the
Public Solicitor if he is entitled to legal aid; and
(d) as soon as practicable consider and accordingly grant or refuse bail in
accordance with the Bail Act ; and
(e) if bail is not granted under Paragraph (d) or if for any other reason the
person arrested remains in custody at the station - take the person, or cause
him to be taken, before a court without delay; and
(f) if bail is granted to the person by a court but for any reason the person
remains in custody at the station after bail is granted - take the person or
cause him to be taken before a court as soon as practicable after the
expiration of 14 days after the bail is granted; and
(g) if bail is granted to the person but he remains in custody after being
brought before a court on one or more occasions - take the person or cause
him to be taken from time to time before a court as soon as practicable
after the expiration of 14 days after the time he last appeared before a
court.
(2) The officer-in-charge of a police station shall at all times permit persons
arrested or detained at the police station -
(a) whenever practicable, without delay and in private to communicate with -
(i) a member of his family or a personal friend; and
(ii) a lawyer of his choice, including the Public Solicitor if he is entitled to
legal aid; and
576 Chapter 4

(b) to give instructions to a lawyer of his choice, including the Public Solicitor
if he is entitled to legal aid.

19. Procedure in the case of a warrant of

commitment.
(1) Notwithstanding Sections 16, 17 and 18 but subject to Subsection (2), where a
warrant of commitment has been issued in respect of a person who is not in custody at
the time and he is later arrested by the person or one of the persons to whom the
warrant is directed, the person effecting the arrest shall convey the person arrested to a
place of confinement in accordance with the warrant.
(2) Where a person making an arrest referred to in Subsection (1) believes on
reasonable grounds that the person arrested has committed an offence for which he has
not been tried, the person making the arrest shall deal with the person arrested in
accordance with Section 16 or 17, as the case may be.

20. Duties of officer where warrant of commitment

issued.
(1) Notwithstanding Section 17 but subject to Subsection (2), where a person has
been arrested and taken to a police station and a warrant of commitment has been
issued in respect of that person, the officer-in-charge of the police station shall take or
cause the person to be taken to a place of confinement in accordance with the warrant.
(2) Where the officer-in-charge believes that the person arrested committed an
offence for which he has not been tried, the officer shall deal with the arrested person
in accordance with Section 18.

Part VI – Powers of Police After Arrest.

21. Finger-prints, etc.
(1) Where a person is in lawful custody on a charge of committing an offence, a
commissioned officer of the police force or the officer-in-charge of a police station
may -
(a) take or cause to be taken such particulars as he deems necessary for
identification of that person, including his photograph, finger-prints and
palm-prints; and
(b) subject to Subsection (2) - use or cause to be used such force as is
reasonably necessary to secure those particulars.
(2) Subsection (1) does not justify the use of greater force than is reasonable in
the circumstances.
(3) Where a person referred to in Subsection (1) is not convicted of the charge in
respect of which he is in custody, or an appeal against his conviction is upheld -
(a) all records of particulars for identification of that person and all copies of
those records taken under that subsection shall be destroyed within a
period of one month after the proceeding is concluded; and
(b) if he so requests before they have been destroyed - he is entitled to be
present, at his own expense, at a police station nominated by him to
witness the destruction of those records and copies.
(4) A policeman may apply to a court within the period referred to in Subsection
(3) for an order that the records of a person taken under Subsection (1) not be
destroyed.
 CRIMINAL PROCEDURE 577

(5) If the court is satisfied that the records referred to in Subsection (4), are
required in respect of charges that have already been laid against the person it may
order that the records not be destroyed until that charge has been dealt with.

22. Medical examination.

(1) Subject to Subsection (6) where -
(a) a person is in custody in respect of an offence; and
(b) a commissioned officer of the Police Force or the officer-in-charge of a
police station believes on reasonable grounds that the nature and
circumstances of the alleged offence in respect of which the person is in
custody are such that a medical examination of the person in custody
would provide evidence relating to the offence; and
(c) the person in custody has given his written consent or a court has ordered
that the examination take place,
a medical practitioner, if requested by the commissioned officer or the officer-in-
charge, as the case may be, may conduct a medical examination.
(2) An application for an order under Subsection (1) to a court by a commissioned
officer of the Police Force or the officer-in-charge of the police station at which the
person is being held may be made -
(a) in person; or
(b) where an application in person is not practicable - by telephone.
(3) If the court is satisfied on application being made to it under Subsection (2) that
the commissioned officer of the Police Force or the officer-in-charge of the police
station has reasonable grounds for his belief that a medical examination of the person
in custody will provide evidence relating to the offence for which the person is in
custody, it may order -
(a) in writing that the medical examination take place; or
(b) where the application has been made under Subsection (2)(b) and the
circumstances of the case justifies its doing so orally, that the medical
examination take place, but it shall confirm the order in writing within
three days after the making of the order.
(4) Where the application for a medical examination is made under Subsection (2),
the court granting the application shall cause its order to be forwarded to the applicant.
(5) A medical practitioner conducting a medical examination for which a court
order has been issued under Subsection (3) may -
(a) use such force as is necessary to carry out the medical examination; and
(b) use assistants to help him with the examination.
(6) Subsection (5) does not justify the use of greater force than is reasonable in the
circumstances.
It was said in Migi Barton v The State (1981) SC213(M):
578 Chapter 4

"In this case, it is regrettable that no blood or other test was taken of the deceased
and the appellant (convicted of dangerous driving causing death under s 328 of the
Criminal Code) after the accident, to determine the blood-alcohol levels. More use
should be made of this section of the Arrest Act in appropriate cases."

Part VII – Miscellaneous

23. Powers of arrest conferred by other laws.
The provisions of this Act which specify the circumstances in which a person may
be arrested are in addition to and not in derogation of a provision of any other Act or
subordinate enactment which confers a power of arrest.

24. Powers, practice and procedure relating to

contempt of the Parliament, etc.
(1) This Act does not affect any power, practice or procedure of the Parliament or
of a court of record that, immediately before the commencement date, applied to and
in relation to a person in contempt of the Parliament or contempt of court, as the case
may be.
(2) An officer of the Parliament or of a court of record and any person assisting
such an officer shall not be deemed to be acting unlawfully if he makes an arrest and
deals with the person arrested in accordance with the practice and procedure for the
time being of the Parliament or the court, as the case may be.

25. Protection from criminal liability where

wrong person arrested.
Notwithstanding any other law, where -
(a) a warrant is issued for the arrest of a person; and
(b) the person to whom the warrant is directed makes an arrest in accordance
with Part IV. believing in good faith and on reasonable grounds that the
person he arrests is the person against whom the warrant was issued; and
(c) the person arrested is not the person against whom the warrant was issued,
the person making the arrest, or any person assisting him, does not commit an offence.

26. Civil remedy for wrongful exercise of

powers conferred by this Act.
(1) A person who -
(a) exercises a power to make an arrest to which this Act applies in breach of
this Act; or
(b) exercises a power conferred by this Act, other than a power of arrest, in
breach of this Act; or
(c) performs a duty imposed by this Act in breach of this Act; or
(d) fails or refuses to perform a duty imposed by this Act,
 CRIMINAL PROCEDURE 579

may be liable in damages to the person aggrieved by that breach.

(2) An action under Subsection (1) may be brought -
(a) in the National Court; or
(b) in a District Court, and in the case of a District Court, the court has
jurisdiction within the limits prescribed by Section 21 of the District
Courts Act.
(3) In an action under Subsection (1), a court may award exemplary damages.
(4) The provisions of this section are in addition to and not in derogation of the
provisions of the Constitution or any other law dealing with the enforcement of any
constitutional right, power, duty, restriction or prohibition.

27. Certain acts deemed to be within course of employment.

For the purpose of any civil proceeding, where the making of an arrest would
otherwise be within the scope of a person’s employment, the mere non-compliance by
an employee with a provision of this Act does not, of itself, take any act of the
employee, committed during the course of the arrest outside the scope of his
employment.

28. Onus of proof in relation to certain civil

proceedings.
(1) Where in any civil proceeding it appears -
(a) that one party to the proceeding had another party to that proceeding in his
custody after the arrest of the other party; and
(b) that the first-mentioned party was not a policeman at the time of that
custody,
the first-mentioned party bears the onus of proving -
(c) that he handed over the other party to a policeman as soon as was
practicable; or
(d) that he took the other party or caused him to be taken to a police station as
soon as was practicable; or
(e) that he dealt with the other party under Section 19.
(2) Where in any civil proceeding it appears -
(a) that one party to the proceeding had another party to the proceeding in his
custody after the arrest of the other party; and
(b) that the first-mentioned party was a policeman at the time of that custody,
the first-mentioned party bears the onus of proving -
(c) that he took the other party without delay to a police station or before a
court; or
(d) that he dealt with the other party under Section 19.
580 Chapter 4

(3) Where in any civil proceeding it appears that at a particular time one party to
the proceeding was the officer-in-charge of a police station and another party to that
proceeding was in custody at the police station at that time, the first-mentioned party
bears the onus of proving that he took the other party or caused the other party to be
taken before a court without delay after being brought to that police station.

29. Indemnity of policemen.

(1) Notwithstanding any other law, a policeman against whom proceedings are
brought under Section 26(1) shall -
(a) not join the State as a defendant in those proceedings; and
(b) subject to Subsection (2), be fully indemnified by the State in respect of
those proceedings where -
(i) he had, at the time a bona fide belief that he was carrying out his
duties under this Act; and
(ii) he was not acting maliciously or with wilful disregard to his
professional duties and responsibilities; and
(iii) he was not grossly negligent in the performance of his duties.
(2) The court before whom proceedings are brought under Section 26(1) against a
policeman may -
(a) in the case specified in Subsection (1) enter judgement for the plaintiff
against the defendant and, at the same time, order that the whole amount
awarded as judgement for the plaintiff be paid by the State to the defendant
policeman as contribution; or
(b) in any case where the policeman was -
(i) acting maliciously or with wilful disregard to his professional duties
and responsibilities; or
(ii) grossly negligent in the performance of his duties,
enter judgement for the plaintiff against the defendant and, at the same time determine
the amount of contribution to be paid by the State to the defendant policeman.
(3) An order under Subsection (2)(a) and a determination under Subsection (2)(b)
shall be deemed for all purposes to be a judgement of the court in favour of the
policeman against the State and is enforceable and appellable accordingly.

30. Abolition of certain common law powers and

duties.
Subject to Section 24 -
(a) all powers at common law to arrest a person are abolished; and
(b) all duties and responsibilities imposed by the common law in relation to an
arrest are abolished.
 CRIMINAL PROCEDURE 581

31. Regulations.
The Head of State, acting on advice, may make regulations not inconsistent with
this Act, prescribing all matters that by this Act are required or permitted to be
prescribed or that are necessary or convenient to be prescribed for carrying out or
giving effect to this Act.

BAIL ACT

Chapter No 340
Being an Act -
(a) to provide for bail to be granted more readily; and
(b) to abolish certain rules of common law,
and for other related purposes.

PART 1 - Preliminary
See ss 42(6) and (7), 76 and 155(4) of the Constitution. Section 155(4) vests inherent power
in the National Court to grant bail pending an appeal from a District Court where the
circumstances are such that justice would not otherwise be done: Paul Jerol Aisi v Malkom
Bai (1976) N52.

Section 565 of the Criminal Code (now s 533), repealed by s 32 of the Criminal Code
(Arrest) Act 1977, was the original bail provision, now replaced by the Bail Act.

See also generally "Bail: An Examination" (1971) 45 ALJ 193.

See Griffin, Criminal Procedure in Papua New Guinea (1977), Ch 9.

1. Interpretation.
(1) In this Act, unless the contrary intention appears -
“bail” means approval, whether or not subject to conditions, for the release
of a person from custody;
“bail authority” means a person or court empowered or required under this
Act or any other law to grant bail;
“bail certificate” means a certificate issued under Section 15;
“bail obligations”, in relation to a person granted bail, means the obligations
imposed on the person under Section 17;
“court” means any court, other than a Village Court, and includes a Judge or
Magistrate of any court, other than of a Village Court;
“guarantor” means a person who undertakes to see that a person granted
bail complies with his bail obligations;
“officer-in-charge”, in relation to a police station at a particular time, means
the policeman who is in charge of the police station at that time;
“place of confinement” means a corrective institution, rural lock-up or
police lock-up;
582 Chapter 4

“policeman” means a member of the Police Force.

(2) For the purposes of this Act -
(a) The Supreme Court shall be deemed to have jurisdiction higher than the
jurisdiction of any other court; and
(b) a Judge of the National Court shall be deemed to have jurisdiction equal
to the jurisdiction of every other Judge of the National Court; and
(c) the National Court and a Judge of the National Court shall be deemed to
have jurisdiction higher than the jurisdiction of a court or Magistrate
referred to in Paragraph (d); (e) and (f); and
(d) a District Court and a Magistrate of a District Court shall be deemed to
have jurisdiction equal to the jurisdiction of every other District Court
and Magistrate of a District Court; and
(e) a District Court and a Magistrate of a District Court shall be deemed to
have jurisdiction higher than the jurisdiction of a Local Court or a
Magistrate of a Local Court; and
(f) a Local Court and a Magistrate of a Local Court shall be deemed to have
jurisdiction equal to the jurisdiction of every other Local Court and
Magistrate of a Local Court.
(3) For the purposes of this Act a person believes something on reasonable
grounds if -
(a) he personally has that belief; and
(b) there are reasonable grounds for that belief.
Local Courts have been abolished by the Local Courts (Amendment) Act 2000.

2. Application.
Notwithstanding any other law, this Act applies to and in relation to a person
arrested or detained for an offence.

Part II – Grant of Bail Before Acquittal or Conviction

Division 1 - General.

3. Object of Part II.

The object of this Part is to give effect to Section 42(6) (liberty of the person) of the
Constitution which provides that a person arrested or detained for an offence (other
than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail
at all times from arrest or detention and to acquittal or conviction unless the interests
of justice otherwise require.
Kidu CJ and Andrew J stated, in Re Bail Application pursuant to s 13(2) Bail Act 1977;
Fred Keating v The State [I983] PNGLR 133:

"Whilst the Bail Act is a complete code dealing with the grant or refusal of bail, the
bail authority must still consider the interests of justice as required by this section
and the Constitution. This may involve considerations other than the criteria for
refusing bail as established in s 9 of this Act."
 CRIMINAL PROCEDURE 583

See also annotations under s 9 of the Bail Act

4. Bail to be granted by police in certain cases.

A person charged with wilful murder, murder or an offence punishable by death
shall not be granted bail except by the National Court or the Supreme Court.
Division - Circumstances when Bail to be Considered.

5. Bail to be granted by police in certain cases.

Subject to Section 4, where -
(a) a person has been arrested for an offence and is held in custody at a
police station or in the custody of a policeman; and
(b) in the opinion of -
(i) the officer-in-charge of that police station; or
(ii) a commissioned officer of the Police Force,
it is not practicable to bring the person before a court within a reasonable time,

the officer, at the time he forms that opinion, shall consider and accordingly grant or
refuse bail to that person in accordance with Section 9.

6. Application for bail may be made at any time.

(1) An application for bail may be made to a court at any time after a person has
been arrested or detained or at any stage of a proceeding.
(2) A court shall consider an application for bail at the time it is made unless it is
satisfied that no steps that were reasonable in the circumstances have been taken to
advise the informant that the application would be made.
(3) Subject to Section 4, the court shall grant or refuse bail in accordance with
Section 9.
Doherty AJ said in The State v Mene Mamaino [I990] PNGLR 185 at 186:

"[Section 6(1)] provides that an application for bail may be made to a court at any
stage of a proceeding. This section follows on directly from s 42(6) of the
Constitution which categorically states that a person arrested or detained for an
offence (other that treason or wilful murder) is entitled to bail at all times to
conviction or acquittal unless the interests of justice otherwise required. Hence the
entitlement to apply for bail is a statutory one and is vested in a defendant at all
times until his court case is finalised by way of acquittal or conviction.

The obligation on a court to consider an application for bail is a mandatory one

stated in s 6(2) ... imposing on a court an obligation to consider an application for
bail at the time it is made."

An applicant refused bail previously by a judge of the National Court may re-apply
afresh if changes in relevant circumstances have occurred since bail was last refused: Re
Thomas Markus (1999) N1931. -

In Re Thomas Markus, Injia J stated:

584 Chapter 4

"In considering whether there has been a change in circumstances, the change or
changes in circumstances must be relevant. In determining what changes are
relevant circumstances, it is necessary to re-visit the judge's earlier reasons for
refusing bail with reference to s 9(1) of the Rail Act. Any circumstances which did
not form part of the reasons pertaining to the grounds upon which bail was refused
under the criteria in s 9(1) is not a relevant circumstance for which the Court should
re-consider its earlier decision to refuse bail. Indeed it would amount to abuse of
process of the Court for a person refused bail by a judge of the National Court to re-
apply for bail to the same judge or different judge of the National Court simply for
the purpose of taking another bite at the same application before another judge,
without providing evidence of any change in relevant circumstances or with
evidence of change in irrelevant circumstances."

7. Bail on adjournment.
Subject to Section 4, where a person is in custody in connection with any
proceedings, including proceedings for committal for trial or sentence in the
National Court, the court shall, on each occasion that it adjourns the proceedings
before conviction, consider and accordingly grant or refuse bail to that person in
accordance with Section 9.

8. Bail after committal for trial or sentence.

Subject to Section 4, where a court commits a person who is in custody for trial or
sentence in the National Court, the court shall consider and accordingly grant or refuse
bail to that person in accordance with Section 9.
Division 3 - Considerations Affecting Decision on Bail Matters.

9. Bail not to be refused except on certain grounds.

(1) Where a bail authority is considering the question of granting or refusing bail
under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one
or more of the following considerations:-
(a) that the person in custody is unlikely to appear at his trial if granted bail;
or
(b) that the offence with which the person has been charged was committed
whilst the person was on bail; or
(c) that the alleged act or any of the alleged acts constituting the offence in
respect of which the person is in custody consists or consist of -
(i) a serious assault; or
(ii) a threat of violence to another person; or
(iii) having or possessing a firearm, imitation firearm, other offensive
weapon or explosive; or
(d) that the person is likely to commit an indictable offence if he is not in
custody; or
(e) it is necessary for the person’s own protection for him to be in custody;
or
 CRIMINAL PROCEDURE 585

(f) that the person is likely to interfere with witnesses or the person who
instituted the proceedings; or
(g) that the alleged offence involves property of substantial value that has
not been recovered and the person if released would make efforts to
conceal or otherwise deal with the property;
(h) that there are, in progress or pending, extradition proceedings made
under the Extradition Act (chap 49) against the person in custody; and
(i) that the alleged offence involves the possession, importation or
exportation of a narcotic drug other than for the personal, medical use
under prescription only of the person in custody; or
(j) that the alleged offence is one of breach of parole.
[Subs 1(h) and (i) insrt Act No 11, 1982 (Bail (Amendment) Act 1982), s 1(a); Subs 1(j) insrt Act No 34,
1991 (Bail (Consequential Amendment) Act 1991)]

(2) In considering a matter under this section a court is not bound to apply the
technical rules of evidence but may act on such information as is available to it.
(3) …
(4) For the purposes of Subsection (1)(i), “narcotic drug” has the meaning given to
it in the Customs Act (chap 101).
[Subs (4) insrt Act No 11, 1982 (Bail (Amendment) Act 1982), s 1(b)]

There is no s 9(3) at present.

An applicant starts with a heavy presumption in his or her favour, as the Constitution
and the Bail Act entitle an applicant to bail: Re Application for Bail by Paul Lois Kysely
[I980] PNGLR 36.

Kearney DCJ said in Re Herman Kagl Diawo [I980] PNGLR 148:

"It is clear from the Constitution, s 42(6) that an applicant is entitled to bail during
the course of his trial unless the interests of justice otherwise require. Some matters
which are relevant to the interests of justice when considering bail during trial are
set out in an English practice note (119741 2 All ER 794). Under the old law, while
bail was very much in the discretion of the trial judge, in practice, bail during the
course of trial was rarely granted. The State now carries the burden of justifying
detention during trial. It is clear that the Bail Act is a complete code dealing with
interim judicial release in this jurisdiction."

Kapi J expressed the following view in Re Herman Kagl Diawo [1980] PNGLR 148:

"The right to bail is a constitutional right (s 42(6)) and must be given readily unless
the interests of justice require otherwise. The Constitution puts the onus on those
who oppose bail to show why bail should not be granted. Section 9(1) sets out the
considerations upon which the court may refuse bail."

Miles J stated in Re Herman Kagl Diawo [1980] PNGLR 148:

It is clear that the constitutional right to bail set out in s 42(6) and repeated in s 3 of the
Bail Act applies right up until the time of acquittal or conviction.
586 Chapter 4

There can be no question of it not applying in the case of a trial which is part heard.
As bail is a matter of constitutional right, it is not surprising then that the Bail Act in
this section provides a set of criteria not as to the granting of bail but as to its
refusal."

In Re Application for Bail pursuant to s 13(2) Bail Act 1977; Fred Keating v The State
[1983] PNGLR 133, Kidu CJ and Andrew J held:

"If one of the considerations in s 9 is present, it does not follow that bail must
automatically be refused; there is always a discretion in the bail authority to grant
bail."

See also The State v Beko Job Paul [I986] PNGLR 97.

Kidu CJ and Andrew J further stated in Re Application for Bail pursuant to s 13(2) Bail
Act 1977; Fred Keating v The State [I983] PNGLR 133:

"In cases of wilful murder, only those considerations set out in s 9(1) apply, and no
others, because the 'interests of justice' in s 3 of this Act and because s 42(6) of the
Constitution does not apply to wilful murder and treason cases."

Kidu CJ and Andrew J also said in the same case:

"When considering the grant or refusal of bail in cases other than wilful murder or
treason, the courts and other bail authorities are to be guided generally by s 9. But
whilst the Bail Act is a complete code dealing with the grant or refusal of bail, by s
3, in matters other than wilful murder or treason, the bail authority may still have to
consider the question of the interests of justice. This may involve considerations
other than the criteria for refusing bail as established in this section."

In Bernard Juale v The State (1999) N1887 the applicant was charged with wilful
murder of his wife. The applicant raised a number of grounds in relation to his
application for bail, including humanitarian grounds, in that since the death of his wife
the applicant had played both mother and father to his young children. Kirriwom J held
that:

"In my view before I can venture into examining considerations not stipulated in
section 9 (1) of the Bail Act, I have to first satisfy myself as to whether or not, any
of the considerations in section 9(1) have been made out. If I do find that one or
more grounds have been established, then I have to decide whether I should exercise
my discretion to either grant or refuse bail. There is one school of thought that says
that once I have found that one of the grounds in s 9 (1) has been established, I have
no discretion to grant bail if the charge is that of wilful murder. I beg to differ with
this view, even if this is the correct interpretation of the law in Re Fred Keating. If
that is what the law is, in my respectful view, it needs to be corrected. I think there
will be, as is always the case, exceptional circumstances such as those alluded to by
Andrew J in his judgement in the same case that would warrant bail even in wilful
murder cases. The question is always one of degree. Each case must be decided on
its own peculiar circumstances. The Constitution under s 42(6) does not deny bail to
a person charged with wilful murder. It avails bail to all persons at all times except
those charged with wilful murder and treason. The fact that it excepts wilful murder
and treason does not necessarily connote a negative proposition of law. It simply
means that bail is not readily and automatically available but that the person charged
must seek redress for bail through other avenues. That avenue is thus provided
under ss 4 and 6 of the
 CRIMINAL PROCEDURE 587

Bail Act. It is however unfortunate in my view that section 9 of the Bail Act is
restricted only to those considerations exhaustively defined therein.

In the case before me notwithstanding the view I have expressed above, for reasons
expressed hereinafter, I do not find the plea convincing for me to exercise my
discretion in favour of the applicant."

See also In the Matter of an Application for Bail Pursuant to s 6 of the Bail Act (Ch No
340); Paul Olape and The State (1998) N1890.

In The State v Beko Job Paul [1986] PNGLR 97 it was held that, notwithstanding the
consideration enumerated in s 9(1) of the Bail Act, the nature of an offence itself may
have the effect of operating as a sufficient factor to refuse bail, unless the court is
convinced that the continued detention is not justified: Re Fred Keating [1983] PNGLR
133 considered and applied. In the circumstances, the offence, involving as it did a clear
intent to secure arms, negated any presumptive right under s 42(6) of the Constitution or
under the Bail Act, and as the interests of justice would not be served by failing to give
special significance to the nature of the offence, bail should be refused. Wilson J (at 99)
was of the opinion that:

"the offence the nature of which involves the clear intent to secure arms negates that
presumption and that the interests of justice are not served by failing to give special
significance to this type of crime and the consequences that flow, or could flow
from it. On the basis of this reasoning I refuse bail".

On application for bail pending trial or committal, the prosecution must discharge the
onus under s 9(l)(a) by adducing evidence showing a tendency to abscond or a real
possibility that the applicant will not appear. In this case, as the applicant had lived in
Papua New Guinea for 10 years with his wife and children, had a house and had held the
same job for six years, the onus was not discharged: Re Application for Bail by Samir
Taleb Abdullah Jaber Anabtawi [I980] PNGLR 195.

Breach of a bail condition by failing to report to a police station does not necessarily
show that an applicant will not appear for his or her trial (s 9(l)(a)) if the failure to report
is in the nature of an oversight: Re Application for Bail by Paul Louis Kysely [I980]
PNGLR 36.

The word "likely" in s 9(1)(f), following Livingstone-Thomas v Assoc Newspapers Ltd

(1969) 90 WN (NSW) 223, means likely in the sense of a tendency or a real possibility,
and does not mean "more likely than not", "probably" or "very likely": Re Application
for Bail by Paul Louis Kysely [I980] PNGLR 36.

In Re Application for Bail by Paul Louis Kysely [I980] PNGLR 36, one attempted
interference with a state witness having occurred, and having regard to the rest of the
evidence, there was a real possibility of a contravention of this provision (s 9(1)(f)).

Re Application for Bail by Paul Louis Kysely [I980] PNGLR 36, was followed in Re
Application for Bail by Samir Taleb Abdullah Jaber Anabtawi [I980] PNGLR 195.

Part III – Grant of Bail After Conviction.

10. Bail after conviction and before sentence.
Where a court convicts a person but adjourns the proceeding before passing
sentence, it may, in its discretion, grant the person bail.
588 Chapter 4

11. Bail after lodging appeal.

Where a person lodges an appeal against his conviction or sentence or both -
(a) the court which convicted him; or
(b) a court of equal jurisdiction; or
(c) a court of higher jurisdiction,
may, in its discretion, on application by or on behalf of the appellant, grant bail
pending the hearing of the appeal.
Pratt J held, in John Jaminan v The State [1983] PNGLR 122:

"For bail to be granted following conviction, there must be 'exceptional

circumstances' shown, not merely 'special circumstances'. Relevant matters may
include the likelihood of success of the appeal (where the outcome is a foregone
conclusion and readily apparent), or where the preparation of the appeal may be
assisted by the release of the appellant, or where there is a lengthy intervening
vacation in the calendar of the appeal court. R v Southgate (1961) 78 WN (NSW)
44, followed. The fact that the appellant was a member of Parliament and that his
electorate would not be represented if he were not granted bail, was not an
exceptional circumstance."

In Yaki v The State [I990] PNGLR 513, the Supreme Court, on appeal, rejected the
application by a member of Parliament for bail on the grounds of attention to political
duties and accounting for government funds. These were not exceptional circumstances.

The courts are vested with a wide discretion under this section. It is to be remembered
that under s 42(6) of the Constitution, and under the Bail Act, the right to bail of an
ordinary person (ie, a person accused of any crime other than treason or wilful murder)
is guaranteed to that person "at all times from arrest or detention to acquittal or
conviction unless the interests of justice otherwise require". No such right is preserved to
the person after conviction, rather suggesting that the legislature contemplated that bail
would be refused at that stage unless circumstances could be shown to exist which
justified the exercise of the judicial discretion. This section nowhere mentions
"exceptional circumstances", and the judicial gloss has been put upon the section
because of the view that "the guilt of the person accused has been established ... in what
must be taken until the contrary be shown to be a trial properly conducted without effort
by law": Arthur Gilbert Smedley v The State [I978] PNGLR 452.

Section 11 confers a wide discretion upon the court. However, applications after
conviction are rare, as the authorities both in Papua New Guinea and Australia make it
clear that they are viewed with very great care. The situation after conviction is different
from that before conviction, when the presumption of innocence still prevails. Post-
conviction the applicant must show there are "exceptional circumstances": Rolf Schubert
v The State [I979] PNGLR 66.

After conviction, an applicant for bail must show "exceptional circumstances" exist
before bail is allowed pending appeal. The fact that a vacation is imminent, which might
cause the hearing of the appellant's appeal to be delayed for several months, is not in
itself an "exceptional circumstance". Likewise, the fact that the grounds of appeal are
prima facie arguable does not itself constitute an "exceptional circumstance": Arthur
Gilbert Smedley v The State [I978] PNGLR 452 (Re Ilett [I974] PNGLR 49 not
followed).
 CRIMINAL PROCEDURE 589

An accused person who appeals to the Supreme Court after conviction will be granted
bail pending the appeal only in very exceptional circumstances: Himson Mulas v The
Queen [1969-1970] PNGLR 82.

Where an application is made for bail pending an appeal against a short sentence, bail
will generally not be granted if the appeal can be speedily heard: Paul Jerol Aisi v
Malkom Bai (1976) N52.

Williams J said in Pou v Kose (1973) No746:

"The court has the power to order that the period during which the appellant was
released on bail shall be taken into account in calculating length of the sentence of
imprisonment imposed upon him. This power is one to be exercised sparingly and
upon it being shown that special circumstances exist."

See also Logalio Piaro v Philip Kumbamung; Pup Tumbant v Philip Kumbamung [I976]
PNGLR 283, and Secretary for Law v Gabriel Poleneu [I973] PNGLR 85.

12. Bail during hearing of appeal.

Where a court hearing an appeal adjourns proceedings, it may, in its discretion,
grant bail to the appellant on application by or on behalf of the appellant.

Part IV – Procedure on Refusal of Bail

13. Further application may be made after refusal.
(1) Where a person is refused bail by a Magistrate he is entitled to apply for bail,
immediately if he so desires, to a Judge of the National Court.
(2) Where a person is refused bail by a Judge of the National Court he is entitled to
apply for bail, immediately if he so desires, to the Supreme Court.
(3) Where an application is made under Subsection (1) or (2), the applicant shall
produce a copy of the reasons given under Section 16.
(4) An application may be made under Subsection (1) or (2) whether or not bail
was refused -
(a) under this Act (including this section) or under any other law; or
(b) on an application.

Part V – Procedure on Grant or Refusal of Bail

14. Person granted bail need not be present.
Bail may be granted notwithstanding that the person to be granted bail is not in the
presence of the bail authority.

15. Bail certificate.

(1) Subject to Subsection (3), at the time of granting bail to a person the bail
authority shall issue to him a certificate -
(a) stating that he is entitled to bail; and
(b) specifying conditions (if any) of bail; and
 CRIMINAL PROCEDURE 590

(c) containing such other particulars as are prescribed.

(2) Unless required by his legal representative or other agent, a person granted bail
shall retail in his possession at all times until his bail obligations are discharged, a
copy of the bail certificate.
(3) Where a person is granted bail on his committal for trial or sentence in the
National Court, the Clerk of the Court which commits him shall, as soon as possible,
forward a copy of the bail certificate to -
(a) the Public Prosecutor; and
(b) the Public Solicitor.
(4) Where a person is granted bail but is committed to a place of confinement until
a condition is complied with, a copy of the bail certificate shall be attached to the
warrant of commitment.
(5) Where a court issues a certificate under Subsection (1) in respect of a person
and that person is not in the presence of the bail authority at the time, the Registrar or
Clerk of the Court, as the case may be, shall, as soon as possible, forward the
certificate to the person holding the person in custody who shall ensure that a copy of
the certificate is handed to that person as soon as possible.

16. Reasons for refusing bail to be given and

recorded.
(1) Where bail is refused the bail authority shall at that time give the reasons in
writing for its decision to the person in custody or his legal representative.
(2) Where the bail authority refuses to grant bail, whether or not application has
been made, the bail authority shall ensure that the reasons for its decision are recorded
-
(a) if the bail authority is the officer-in-charge of a police station or a
commissioned officer of the Police Force in the register of arrests at the
police station where the person is held in custody; and
(b) if the bail authority is a court-in the court papers relating to the charge
against the person.

Part VI – Obligations and Conditions Relating to Bail

17. Obligations of person granted bail.
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
hearing may be from time to time adjourned; and
(b) shall comply with all conditions of bail fixed under Section 18.

18. Bail may be granted subject to conditions.

(1) Subject to this section, a bail authority may grant bail to a person subject to
conditions, including conditions to be complied with before release from custody, but
in fixing conditions under this section the bail authority shall satisfy itself that the bail
conditions -
(a) will not cause undue interference with the person’s domestic life; and
591 Chapter 4

(b) will not interfere with the person’s legitimate means of earning a living or
making himself available for work; and
(c) will not interfere with the person’s rights to political freedom of action or
movement except insofar as it is necessary to ensure that he appears at
court when required; and
(d) will not cause the person financial hardship; and
(e) are not unreasonable in all the circumstances.
(2) Where a bail authority fixes a condition to be complied with before release
from custody, it shall, in the bail certificate, stipulate the person or class of persons to
verify compliance with that condition.
(3) Any person may, unless the contrary intention appears in the bail certificate,
perform on behalf of the person granted bail, any condition to be complied with before
release from custody.

19. Guarantors.
(1) A bail authority may require as a condition of bail that no more than two
guarantors approved by it undertake to see that the person granted bail appears at the
time and place set for his trial and complies with the condition (if any) of his bail.
(2) A bail authority shall not require any guarantor to give any undertaking under
Subsection (1) unless it is of the opinion that the person granted bail will not appear at
his trial or will not comply with the conditions (if any) of his bail unless a guarantor is
approved.
(3) If the bail authority is a court it may authorize a commissioned officer of the
Police Force or an officer-in-charge of a police station to approve a guarantor.
(4) A bail authority or an officer authorized under Subsection (3) may not refuse to
approve a person as a guarantor unless it or he is satisfied on reasonable grounds that
the proposed guarantor will not honour the undertaking required of him under
Subsection (1).
(5) A bail authority may require a guarantor -
(a) to lodge an amount of money in support of his undertaking; or
(b) to undertake to pay the State an amount of money if the person granted bail
fails to appear at the time and place set for his trial or comply with the
conditions of his bail.
(6) In fixing the amounts of money referred to in Subsection (5) the bail authority
shall take into account the financial means of the guarantor.
(7) If the person granted bail fails to appear at the time and place set for his trial or
fails to comply with the conditions (if any) of his bail the court dealing with his matter
may order -
(a) that the sum of money or part of it lodged by the guarantor be paid to the
State; or
(b) that the guarantor pay to the State the amount or part of the amount he
undertook to pay under Subsection (5).
592 Chapter 4

(8) A guarantor who is affected by an order under Subsection (7) may, within 14
days after the making of the order, apply to the court making the order for variation or
revocation of the order.
(9) The court after hearing an application under Subsection (8) may make any
order it considers just in the circumstances.

Part VII – Variation, Revocation, Etc., of Bail

20. Variation of bail.
(1) Subject to Subsection (2), a person granted bail in relation to a proceeding or
the other party to the proceeding may apply to a court at any time, after reasonable
notice to the other party, for a variation of the terms and conditions of bail.
(2) An application under Subsection (1) shall be made to a court which has
jurisdiction not lower than the jurisdiction of the court which granted bail.

21. Revocation of bail.

(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.
(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; or
(b) subject to Subsection (3), vary the conditions of the bail.
(3) Where there is a guarantor for the person granted bail, a court shall not impose
conditions of bail more onerous on the guarantor than the existing conditions of bail
without first obtaining the consent of the guarantor.

22. Forfeiture of security.

(1) 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
given by him to secure his bail obligations.
(2) Subject to Subsection (3), where an order is made under Subsection (1), the
order -
(a) in the case of money undertaken to be paid in the event of a breach or
contravention of the bail obligation - shall be deemed to be a judgement of
the court that the person pay to the State a sum not exceeding the sum
undertaken to be paid; and
(b) in the case of a deposit - may authorize payment of the whole or part of the
deposit into the Consolidated Revenue Fund.
(3) A person who is affected by an order under Subsection (1) may, within 14 days
after the making of the order, apply to the court making the order for variation or
revocation of the order.
(4) The court after hearing an application under Subsection (3) may make any order
it considers just in the circumstances.
 CRIMINAL PROCEDURE 593

In Mili Rumints v William Wulat (1982) N369(M), the court found that a forfeiture of
bail ordered under this section was unjust, as the magistrate led the defendant to believe
that an adjournment would be granted.

Under s 22(1), bail may be forfeited even though the defendant is not present. If it is
later learnt that the forfeiture was unfair, say because the accused was ill in hospital
when he or she was due to answer bail, the accused may apply for revocation of the
forfeiture under s 22(3) within 14 days, or to the Supreme Court for a review of the
decision under s 155(2)(b) of the Constitution at any time: The State v Junior Steven
Gawi & Toliman Juki Viru [1988-1989] PNGLR 118.

In Special Constitutional Reference No 12 of 1984 and Supreme Court Reference No

12A of 1984 [I985] PNGLR 224 it was held that an order varying or revoking an order
forfeiting bail cannot be made on an application made outside the 14 day time limit
prescribed by s 22(3) of the Bail Act.

Part VIII – Miscellaneous

23. Permission to leave the country in certain
cases.
(1) Where for urgent personal reasons or by reason of his occupation a person
granted bail in relation to a proceeding wishes to leave the country for a temporary
period before the commencement or conclusion of that proceeding, he may, after
reasonable notice to the other party, apply to the National Court or Supreme Court for
permission to do so.
(2) Permission shall not be granted under Subsection (1) unless the court is
satisfied that the person will return to Papua New Guinea for the proceeding.
(3) A permission granted under this section may be subject to conditions.
(4) A person may apply for permission under this section at the same time that he
applies for bail.
(5) Where permission is granted under this section, a note to that effect shall be
endorsed on the copy of the bail certificate held by the person granted bail.
Permission under this section is in the discretionary power vested in the court
(disapproving Ex parte Smedley [1978] PNGLR 156). Opposition from the Public
Prosecutor is relevant but not conclusive, for the court decides upon being satisfied that
the applicant will return to the country for the hearing: Re Stephen Mark McMillan
[I980] PNGLR 1. For consideration of factors involved in the granting of permission to
leave the country for urgent medical treatment, see Francis Sia v The State (1987) N631.

24. Grant of bail under other laws.

The provisions of this Act which specify the circumstances in which a person may
be granted bail are in addition to and not in derogation of any other Act or subordinate
enactment that provides for the granting of bail.

25. Civil remedy for wrongful refusal to grant bail.

(1) A policeman who -
(a) wrongfully refuses to grant bail to a person under Section 5; or
(b) imposes conditions on bail to a person under Section 18 contrary to the
requirements of that section; or
594 Chapter 4

(c) wrongfully refuses to approve a guarantor for a person under Section 19,
may be liable in damages to that person.
(2) An action under Subsection (1) may be brought -
(a) in the National Court; or
(b) in a District Court,
and in the case of a District Court the court has jurisdiction within the limits
prescribed by Section 21 of the District Courts Act.
(3) In an action under Subsection (1), a court may award exemplary damages.
(4) The provisions of this section are in addition to and not in derogation of the
provisions of the Constitution or any other law dealing with the enforcement of any
constitutional right, power, duty, restriction or prohibition.

26. Abolition of certain common law powers and

duties.
All powers, functions, duties and responsibilities conferred or imposed by the
common law in relation to bail are abolished.

27. Regulations.
The Head of State, acting on advice, may make regulations not inconsistent with
this Act, prescribing all matters that by this Act are required or permitted to be
prescribed or that are necessary or convenient to be prescribed for carrying out or
giving effect to this Act.

28. Offences.
A person who -
(a) is alleged to have committed an offence the penalty for which is or
includes imprisonment for a term exceeding 12 months; and
(b) has been granted bail; and
(c) contravenes or fails to comply with his bail obligations,
is guilty of an offence.
Penalty: A term of imprisonment not exceeding 12 months.
[S 28 insrt Act No 11, 1982 (Bail Amendment) Act 1982), s 2]