Of all the steps in a District Court appeal, the recognizance is the one most often overlooked and the one the courts have been least willing to forgive.
The requirement
(1) Within one month after the day when the decision is pronounced an appellant shall enter into a recognizance with a surety before a Magistrate in such sum as the Magistrate thinks fit, conditioned (a) to prosecute the appeal; and (b) to abide the order of the National Court on the appeal; and (c) to pay such costs as are awarded by the National Court, or the appellant may, instead of entering into a recognizance, deposit with the Clerk of the Court by which the decision was made such sums of money as a Magistrate in writing directs.
(2) A recognizance shall be forwarded without delay by the appellant to the Clerk of the Court by which the decision was made.
(3) This section does not apply to the State or the Attorney-General, or to a person acting on behalf of either.
Section 220(1) makes the recognizance one of the two acts by which an appeal is instituted; without it there is no appeal to enter for hearing. Form 74 is the recognizance and Form 72 the notice of it.
What it is for
The Magistrates’ Manual describes the three conditions as assurance that the appellant will prosecute the appeal, abide by the National Court’s order and pay any costs awarded against him. It guards against appeals lodged only to delay enforcement. The Manual adds that the amount should be fixed according to the circumstances of the appellant, and not according to the magistrate’s opinion of the appeal’s prospects, comparing it to bail, where the likelihood of conviction is not the question.
Fixing the amount and the surety
| Element | Rule |
|---|---|
| Who fixes it | A magistrate, on the appellant’s application, usually the one who decided the case but any magistrate may act |
| Amount | “Such sum as the Magistrate thinks fit”, by reference to the appellant’s means and the likely costs, not the merits |
| Surety | Required for a recognizance; a person of means who undertakes with the appellant; taken under s 84 before a magistrate, the Clerk or a police station officer |
| Deposit instead | A sum directed in writing by a magistrate, paid to the Clerk; no surety needed |
| Record | Entered in the Security Book under reg 13; forwarded to the Clerk under s 222(2) |
| Time | Within one month of the decision, like the notice of appeal |
Why it cannot be waived
Under section 222, when an appeal is lodged the appellant is required to deposit a sum or enter into a recognizance as security for the due prosecution of the appeal. Under section 231 the Court has power to dispense with strict compliance with conditions precedent to the right of appeal. Held: because the requirements of section 222 are mandatory requirements subsequent to the institution of an appeal, they cannot be waived and non-compliance invalidates the appeal.
— Woods J, PGNC 117 (1990)
The reasoning is that section 231 speaks of conditions precedent to the right of appeal, whereas the recognizance is a requirement that attaches once the appeal is on foot. Whatever one thinks of the distinction, the result has been followed: in Rabaul Shipping v Ruru (2000) N2022 failure to file the recognizance in accordance with the Act was one of the failures that led to dismissal, and the Manual’s chapter on appeals treats the recognizance as the magistrate’s first duty once a notice is lodged.
Who is exempt
The State, the Attorney-General and anyone acting on their behalf, under section 222(3). A juvenile appellant, under section 93(3) of the Juvenile Justice Act 2014. No one else. A person who cannot find a surety should ask the magistrate to direct a deposit instead, and a person who can afford neither should ask for a small sum; the Manual’s guidance that the amount follows the appellant’s circumstances is the argument.
Release from custody
Section 223 allows a magistrate, on the Clerk’s certificate that the notice of appeal has been served and that the appellant has entered into the recognizance or made the deposit, to release from custody an appellant who is not detained for any other cause. The recognizance is therefore the key to liberty pending a criminal appeal. See release pending appeal.
What happens to the money afterwards
Where the appellant made a deposit, the National Court may order it applied, so far as it extends, (a) firstly to the costs of the appeal and of the decision below; (b) secondly to the sum adjudged to be paid; and (c) the residue repaid to the appellant. Where the decision is quashed or set aside, the whole deposit is repaid to the appellant.
A recognizance, by contrast, is put in suit under section 235(1) only if costs are not paid, and section 273 lets the Court mitigate a forfeiture. A successful appellant gets the deposit back in full; an unsuccessful one may see it consumed by costs and the judgment. See costs of an appeal.
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.