When a relative is arrested, the first phone call is almost always the same question: who do I see about bail? The answer depends on the charge, and on where the person is being held. Here is how the Bail Act (Chapter 340) sorts it out.
The law’s word for it: “bail authority”
The Bail Act uses one term — “bail authority” — defined in section 1 as “a person or court empowered or required under this Act or any other law to grant bail.” That may be a court, or a policeman. Which one you deal with is decided by section 4 first, and then by where the accused person is being held.
Step one: is this a section 4 charge?
Section 4 is the gate. A person charged with any of the following may be granted bail only by the National Court or the Supreme Court:
- wilful murder, murder, or an offence punishable by death; or
- rape, abduction, piracy, burglary, stealing with violence, robbery, kidnapping, assault with intent to steal, or break and enter a building or dwelling-house — in which a firearm is involved, whether or not the firearm was actually used.
Two points people regularly get wrong:
- The firearm limb does not apply to every robbery or every break and enter. It applies where a firearm is involved.
- “Firearm” in section 4 includes an imitation firearm, whether or not it can fire anything at all (section 4(2)). A toy or replica used in a hold-up puts the charge into National Court territory.
If the charge is on the section 4 list, no magistrate and no policeman can grant bail. The application must go to the National Court.
Step two: police bail
If the charge is not caught by section 4, the police may grant bail — but only in defined circumstances.
Under section 5, where a person has been arrested and is held at a police station or in a policeman’s custody, and in the opinion of the officer-in-charge of that station or a commissioned officer of the Police Force 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.
The word to notice is shall. Once the officer forms that opinion, considering bail is a duty, not a courtesy — and he must apply the same section 9 grounds a court would apply.
The Act backs this up with teeth. Section 25 creates a civil remedy: a policeman who wrongfully refuses bail under section 5, imposes conditions contrary to section 18, or wrongfully refuses to approve a guarantor under section 19, may be liable in damages. The claim lies in the National Court or, within the limits in section 21 of the District Courts Act, in a District Court — and exemplary damages may be awarded.
Step three: courts
Section 6 is the widest provision in the Act. An application may be made to a court at any time after arrest or detention, or at any stage of a proceeding, and the court must consider it then and there unless satisfied that no reasonable steps were taken to advise the informant.
The Act also builds in automatic checkpoints:
- Section 7 — bail on adjournment. On each occasion a court adjourns proceedings before conviction, including committal, it must consider and grant or refuse bail. Bail is revisited, not decided once and forgotten.
- Section 8 — bail after committal for trial or sentence in the National Court.
- Sections 10 to 12 — bail after conviction but before sentence, after lodging an appeal, and during an appeal hearing, each in the court’s discretion.
Note section 1: “court” means any court other than a Village Court. A Village Court cannot grant bail under this Act.
The National Court’s Bail Rules 2021
National Court practice is governed by the Bail Rules 2021, in force since 1 November 2021. Application is on Form 1; the Public Prosecutor states the State’s position on Form 3 within 72 hours; and the Registrar must fix a hearing no more than four days after filing, and must help unrepresented applicants complete the forms.
Quick answers
Can police give bail in PNG? Yes — an officer-in-charge or commissioned officer, where it is not practicable to get the person to court within a reasonable time, and the charge is not a section 4 charge.
Can a District Court grant bail for robbery? Yes, unless a firearm (including an imitation firearm) was involved — then only the National or Supreme Court.
Do I need to be present? No. Section 14 allows bail to be granted even if the person is not in front of the bail authority.
Speak to a lawyer or the Office of the Public Solicitor about the particular charge and the particular court.