Bail is a constitutional entitlement, and the District Court is the court most people ask for it. The question is not whether the magistrate has a general power, but which charges the Bail Act has taken away from magistrates altogether.
The constitutional entitlement
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 to acquittal or conviction unless the interests of justice otherwise require.
Section 3 of the Bail Act (Chapter 340) states that its object is to give effect to that provision. Section 26 abolishes every common law power and duty relating to bail, so a magistrate’s authority must be found in the Bail Act or the District Courts Act. Section 1 of the Bail Act defines “court” to include a magistrate of any court other than a Village Court, and treats every District Court as having equal jurisdiction to every other.
The charges a magistrate cannot bail
A person (a) charged with wilful murder, murder or an offence punishable by death; or (b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or break and enter a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used, shall not be granted bail except by the National Court or the Supreme Court.
(2) “Firearm” includes an imitation firearm whether or not capable of projecting a shot.
The Magistrates’ Manual adds a practical rule: where an information contains several charges and any one of them is within section 4, the magistrate must not determine bail on any of them. A person charged with a section 4 offence applies to the National Court; see bail in the National Court. Section 104 of the District Courts Act says the same for capital offences.
When a magistrate may and must consider bail
| Occasion | Provision | May or must |
|---|---|---|
| Any time after arrest, on application | Bail Act s 6(1) | Must consider at the time it is made, unless the informant has not been told |
| Before the first appearance | District Courts Act s 56; Bail Act s 5 (police) | May |
| Every adjournment of a person in custody before conviction | Bail Act s 7 | Must consider, with or without an application |
| Adjournment of a summary charge | District Courts Act s 89(2) | May |
| Remand in an indictable matter | District Courts Act s 75 | May, and must consider under Bail Act s 7 |
| On committal for trial or sentence | Bail Act s 8; District Courts Act ss 100, 103, 105 | Must consider |
| After committal, before the National Court sitting | District Courts Act ss 105(2), 106 | May |
| After conviction, before sentence | Bail Act s 10 | Discretion |
| After lodging an appeal | Bail Act s 11; District Courts Act s 223 | Discretion |
What the District Courts Act adds
Sections 104 to 110 of the District Courts Act regulate the mechanics rather than enlarge the jurisdiction: the Manual is explicit that they do not extend a magistrate’s power beyond the Bail Act. Section 107 requires bail to be granted only on a recognizance, oral or in writing, with or without sureties, conditioned for appearance at the trial. Section 108 provides for a bail certificate under which the recognizance is taken later under section 84 by a magistrate, a Clerk, the officer in charge of a police station or of the lock-up. Section 109 requires a warrant of deliverance to the officer holding the defendant. See what is a recognizance.
Police bail
Section 5 of the Bail Act requires the officer in charge of a police station, or a commissioned officer, to consider bail where it is not practicable to bring the person before a court within a reasonable time, applying the same section 9 criteria as a magistrate, subject to section 4. Section 56(2) of the District Courts Act lets the officer in charge, or the Clerk, release a person on recognizance except where the offence appears serious. Section 25 of the Bail Act gives a civil claim, which may be brought in the District Court, against a police officer who wrongfully refuses bail, imposes unlawful conditions, or wrongfully refuses to approve a guarantor. See rights on arrest.
How the decision is made
A magistrate may refuse bail only on one or more of the grounds in section 9(1) of the Bail Act, or, on the authority of Re Keating [1983] PNGLR 133, where the interests of justice otherwise require. The onus is on the prosecution. Reasons for refusal must be given in writing under section 16, and a person refused by a magistrate may apply immediately to a judge under section 13. See how a magistrate decides bail and if bail is refused.
Juveniles
Sections 54 to 58 of the Juvenile Justice Act 2014 apply the Bail Act to juveniles with modifications: a Juvenile Court or court of summary jurisdiction may release a juvenile to a parent or responsible person, and a juvenile must not be refused bail solely on certain grounds. See children in the District Court.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.