The word is old, and the Act uses it dozens of times. A recognizance is the legal form that bail, good behaviour bonds and appeal security all take in the District Court.
What a recognizance is
Where a Court or Magistrate is authorized to discharge a defendant, witness or other person on bail on recognizance, the Court or Magistrate may order his discharge on his entering into a recognizance with or without sureties, conditioned for his appearance at the time and place to which the hearing is adjourned or which is named in the recognizance (s 81).
A person shall give security under this Act, whether as principal or surety, (a) by the deposit of money with the Clerk; or (b) by an oral or written acknowledgement of the undertaking or condition by which, and of the sum for which, he is bound, in the prescribed manner and form (s 266).
So a recognizance is an acknowledgement of a debt to the State in a fixed sum, which becomes payable only if the condition is broken. No money changes hands when it is entered into; that is what distinguishes it from a cash deposit, which section 266(1)(a) allows as an alternative. Regulation 13 requires every security to be entered in the Security Book, recording who is bound, as principal or surety, for how much, and on what condition.
The uses the Act makes of it
| Purpose | Provision |
|---|---|
| Bail before or during a hearing | ss 54, 56, 75, 81, 89 |
| Bail after committal for trial or sentence | ss 100, 103, 107 |
| Witness bound to attend the trial | ss 80, 111–113 |
| Conditional discharge without conviction, to be of good behaviour | s 132 |
| Surety to keep the peace or be of good behaviour | ss 209–217 |
| Recognizance on appeal to prosecute the appeal and pay costs | s 222 |
| Appellant about to leave the country | s 237 |
Sureties
A surety is a person who enters into the recognizance alongside the principal, promising to pay the sum if the principal defaults. The Act leaves it to the magistrate whether to require sureties (“with or without sureties at the discretion of the Court”), and section 19 of the Bail Act, which calls them guarantors, limits bail sureties to two and forbids requiring them unless the person would not otherwise appear. Section 85 allows the sureties’ recognizances to be taken separately from the principal’s, before or after, with the same effect. Section 269 gives a surety who has had to pay a right to recover the sum and his costs from the principal as a debt.
Who can take a recognizance
Where a Court or Magistrate has fixed the amount in which the principal and sureties are to be bound, the recognizance need not be entered into before the Court or Magistrate, but may be entered into before (a) a Magistrate; or (b) a Clerk; or (c) a police officer in charge of a police station; or (d) the officer-in-charge of a corrective institution or police lock-up where any of the parties is detained there.
This is what makes a bail certificate under section 108, or an endorsement on a warrant under section 54, work: the magistrate fixes the amount, and the recognizance is completed at the police station or the gaol. Regulation 4 requires a recognizance taken before a magistrate to be sent to the Clerk at once, and section 110 sends copies of bail recognizances to the Public Prosecutor.
Continuous bail
Section 82 allows a recognizance to be conditioned for appearance at every time and place to which the hearing may from time to time be adjourned, so that a defendant is not re-bailed at every mention. Section 17 of the Bail Act imposes the same obligation on every person granted bail. Section 86 allows a police officer who reasonably suspects that a person on recognizance will not appear to arrest him and bring him before a Court, which may commit or re-bail him and must discharge the first recognizance.
What happens on breach
A magistrate may certify on the back of the recognizance in what respect its conditions were not observed, and the certificate is prima facie evidence of non-compliance and forfeiture (s 271). On proof of a breach the Court may adjudge the recognizance forfeited and order payment of the amount due; where the condition was appearance, the order may be made ex parte immediately on non-appearance; otherwise seven days’ notice by summons is required; and the order is enforced by warrant of execution (s 272). At any time before sale under the warrant the Court may suspend, cancel or mitigate the forfeiture on conditions (s 273).
Section 267 lets a sum due from a surety be recovered summarily as a civil debt on complaint by a police officer or the Clerk, and section 268 requires notice of forfeiture to be served on the principal before execution issues. Section 22 of the Bail Act applies to security given under that Act and allows the person affected to apply within 14 days for variation or revocation of a forfeiture order. See breach of bail.
Dispensing with a recognizance
Section 200(1) lets the Court dispense wholly or in part with a requirement in any law that a defendant enter into a recognizance and find sureties. Section 231 lets the National Court dispense with a condition precedent to an appeal where the appellant has done what is reasonably practicable, but Nikints v Rumints [1990] PNGLR 123 held that the recognizance on appeal under section 222 is not a condition precedent that can be waived. See the recognizance on 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.