The moment of arrest starts a clock. The Act, the Constitution, the Arrest Act and the Bail Act all say something about what must happen next, and they point in the same direction: to a court, quickly.
Brought before a court as soon as practicable
A person taken into custody for an offence shall be brought before a Court or a Magistrate as soon as practicable after he is taken into custody.
A person who is arrested or detained on reasonable suspicion of having committed an offence shall, unless he is released, be brought without delay before a court or a judicial officer and shall not be further held in custody in connection with the offence except by order of a court or judicial officer.
Section 275 of the Act authorises the police officer who makes an arrest to take and convey the person before a magistrate, and section 8 lets a magistrate act on a Sunday. Continued detention beyond the first appearance is lawful only under an order: a remand under section 75 in an indictable case, or under section 89 in a summary one.
What you must be told and allowed
Section 42(2) of the Constitution requires a person arrested to be informed promptly, in a language he understands, of the reasons for the arrest and of any charge; to be permitted whenever practicable to communicate without delay and in private with a family member or friend and with a lawyer of his choice, including the Public Solicitor if entitled to legal aid; and to be given adequate opportunity to instruct a lawyer in the place of detention. Section 14 of the Arrest Act spells out how an arrest is made: the person must be told he is under arrest, told the reason, and asked to accompany the officer. The Supreme Court’s reading of these rights is in The State v Songke Mai and Gai Avi [1988–89] PNGLR 56, discussed in what rights do I have when I am arrested.
Bail before the first appearance
(1) Where a person is taken into custody for an offence and has not been brought before a Court, a Magistrate may (a) commit the person to a corrective institution, police lock-up or other place of security until he can be brought before a Court; or (b) discharge the person on bail on his entering into a recognizance, with or without sureties, for such amount as appears reasonable, to appear before a Court at a specified time and place.
(2) A Clerk or a police officer in charge of a police station may inquire into the case and, except where the offence appears to be of a serious nature, may discharge the person on bail on a recognizance to appear before a Court.
Section 5 of the Bail Act goes further: where the officer in charge of the police station, or a commissioned officer, forms the opinion that it is not practicable to bring the person before a court within a reasonable time, that officer shall consider and accordingly grant or refuse bail in accordance with section 9. Section 4 of the Bail Act removes the most serious charges from police and magistrates altogether. And section 25 gives a person wrongfully refused police bail a civil claim for damages, which may be brought in the District Court. If the magistrate endorsed bail on the warrant under section 54, the recognizance is taken under section 84 and the person is released on the spot.
Where the warrant goes
Where a warrant is issued in the first instance and the person arrested is brought before a Court and is either committed to gaol or discharged on recognizance until the hearing, the police officer who executed the warrant shall immediately transmit the original warrant of apprehension to the Clerk of the Court to which the person has been remanded or bound to appear.
Regulation 4 requires a recognizance entered into before a magistrate to be sent to the Clerk at once. Section 87 requires the person conveying a prisoner to a corrective institution or lock-up to deliver the warrant of commitment with him and to obtain a receipt setting out the state and condition of the prisoner when delivered. That receipt is the record of any injury on arrival.
The first appearance
| Charge | What the Court does |
|---|---|
| Simple offence or Schedule 2 offence (elected) | Reads the charge in open court and takes the plea under s 128, or adjourns under s 89 with the defendant at large, in custody or on bail |
| Indictable offence | Commences committal proceedings under Part VI; adjourns under s 75 for not more than 15 days at a time, remanding or granting bail; must consider bail on every adjournment under Bail Act s 7 |
| Any charge | Asks an unrepresented defendant in custody whether he wishes to apply for bail (the practice recommended by the Magistrates’ Manual) |
Once the practicable time for a first appearance has passed, further detention without a magistrate’s order breaches section 42(3). The remedies are an application to the National Court under Constitution section 42(5) for an inquiry into the detention, or habeas corpus, and a claim for damages for false imprisonment. Note that a claim for false imprisonment cannot be brought in the District Court itself; section 21(4)(d) excludes it.
The District Courts Act and Regulation are not on PacLII; both are on vLex (Act, Regulation).
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.