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CHAPTER 10 – BAIL

10.1 THE PRESUMPTION OF THE RIGHT TO BAIL

10.1.1 The Constitution

Section 42 of the Constitution provides a number of rights to all persons who are arrested or detained. The right to bail is set out in the following words:

The right to bail is a qualified constitutional right. It is significant that the qualified constitutional right created by s 42(6) is subject to the “interests of justice”. It is this qualification that reduces the “right” to a presumption in any particular case. The legislative provisions and the task of Magistrates in relation to bail are, in large measure, a means of testing this presumption to determine whether it applies in individual cases.

The Constitution also confers rights to those who are refused bail.

All other provisions relating to bail have their source in these constitutional provisions and must be interpreted in light of them.

10.1.2 The Bail Act

The most significant legislation relating to bail is the Bail Act. Section 3 of the Bail Act follows upon s 42(6) of the Constitution.

Again, we see the expression “interests of justice”. It indicates that a decision about whether any individual who has been arrested or detained for an offence is entitled to bail is to be determined in accordance with the interests of justice.

The Bail Act is very comprehensive and covers nearly all the matters that affect how Magistrates deal with this issue in the District Courts. However, it is important to recognise that this Act does not codify the law of bail in Papua New Guinea. The District Courts Act also contains provisions that relate to bail.

10.1.3 Limits on the presumption

The expression “unless the interests of justice otherwise require” in s 42(6) of the Constitution and s 3 of the Bail Act means that the presumption of entitlement to bail may be rebutted. In order to rebut the presumption, it is necessary to show that the interests of justice require that an applicant for bail be denied bail. Because the presumption operates in favour of a defendant (except in cases where the defendant is charged with treason or wilful murder), it is up to the prosecution to rebut the presumption: see 5.26.

10.2 JURISDICTION TO GRANT BAIL

10.2.1 National and Supreme Courts

The National and Supreme Courts, as superior courts of inherent jurisdiction, can deal with any application for bail. However, in practice, the Supreme and National Courts only determine bail in cases where, by statute, the District Court has no jurisdiction.

Section 4(1) of the Bail Act limits the jurisdiction of the District Court in cases of:

·           wilful murder

·           murder

·           an offence punishable by death

·           rape

·           abduction

·           piracy

·           burglary

·           stealing with violence

·           robbery

·           kidnapping

·           assault with intent to steal

·           breaking and entering a dwelling-house where a firearm is involved (regardless of intent to use)

Bail in respect of these charges can only be granted by the National Court.

In cases where an information contains several charges, and one or more of them are within the scope of in s 4(1) of the Bail Act, a Magistrate must not determine bail in relation to any of the charges.

10.2.2 Bail Act

Section 26 of the Bail Act abolishes any common law powers or duties that govern bail in Papua New Guinea. This means that all Magistrates’ jurisdiction in relation to bail must be traced to a statutory or constitutional provision.

10.2.3 District Courts Act

Sections 104-110 of the District Courts Act apply to the granting of bail in the District Court. These provisions regulate the exercise of that jurisdiction in the District Court. They do not enlarge the jurisdiction of a District Court Magistrate.

10.2.4 Police

Section 5 of the Bail Act requires an officer in charge of a police station to consider the issue of bail in some circumstances. Where a person is being held in a police station and the officer in charge is of the opinion that it is not practicable to bring the person before a court within a reasonable time, the question of bail must be considered by the officer in charge. When this happens, the officer in charge must apply the same criteria that a Magistrate applies in considering bail.

There is nothing in the Bail Act that specifies what “practicable” or “reasonable time” is. Police commonly interpret these terms widely, with the result that nearly all bail hearings take place before Magistrates.

10.3 APPLICATIONS IN DISTRICT COURTS

10.3.1 Onus of proof

The onus in a bail application before a Magistrate is on the prosecution: see 5.4. The prosecutor must satisfy the Magistrate that “the interests of justice” do not favour the granting of bail. The defendant need only make the application. In some circumstances, the Magistrate must consider the issue of bail even though the defendant makes no application.

10.3.2 The commencement of the period for considering bail

A Magistrate has jurisdiction to consider bail at any time after arrest or detention. A Magistrate must exercise that jurisdiction whenever a defendant makes an application for bail. An unrepresented defendant who appears in custody should be asked if he of she wishes to make such an application.

10.3.3 The time when a Magistrate’s jurisdiction ends

The jurisdiction to consider bail normally ends when a defendant is acquitted or is sentenced after a conviction.

Where a Magistrate sentences a defendant to a period of imprisonment, the jurisdiction to hear an application for bail pending appeal continues.

In indictable cases that result in committals for trial or sentence in the National Court, bail may be considered by a Magistrate up until the first day of the National Court sitting at which the defendant is to be tried or sentenced: District Courts Act, s 106.

In some circumstances, a person may apply for bail before the informant or prosecutor has been advised or given an opportunity to be present. Section 6(2) of the Bail Act requires that an adjournment be considered to allow a prosecutor to prepare for a bail application. An adjournment for this purpose should be short and no longer than is necessary.

10.3.4 When a Magistrate must exercise jurisdiction to consider bail

During the period in which a Magistrate has jurisdiction to consider the issue of bail, there are certain times when the Magistrate must exercise that jurisdiction. These are whenever:

10.4 ISSUES RELATING TO THE EXERCISE OF DISCRETION

In any bail hearing, the main question is whether the defendant ought to be released from custody pending trial. The secondary questions are whether conditions should apply to the release of the defendant, and if so, what those conditions should be. The issue of guilt or innocence is not the issue. However, the strength of the prosecution case against the defendant may be indirectly relevant to the issue of “interests of justice” which are discussed below.

The main issue of whether the defendant ought to be released breaks down into a number of subsidiary considerations that are considered below.

10.4.1 Section 9: Considerations for the Magistrate

Section 9 of the Bail Act provides a detailed list of considerations that a Magistrate must refer to whenever bail is considered prior to sentencing the defendant. It makes no difference whether an application is made by a defendant or whether, even in the absence of an application, a Magistrate considers bail pursuant to s 7 after a matter has been adjourned.

If at least one of the above considerations is present, bail is normally refused: Bail Act, s 9(1). The presence or absence of one or more of these factors accounts for the determination of the vast majority of bail applications. However, see 10.4.5.

10.4.2 Meaning of “likely” in s 9(1)

The word “likely” appears in several places in s 9(1) of the Bail Act. In normal use, the word “likely” means that the chances of a thing happening outweigh the chances of the thing not happening. However, a slightly different judicial interpretation has been given to the word “likely” as it appears in s 9(1).

In the case of Kysely v The State [1980] PNGLR 36 at 30, the court considered the meaning of “likely” in relation to s 9(1)(f) of the Bail Act. The court held that (at 39):

<Case Quotation>

“the word ‘likely’ in the phrase ‘likely to interfere with witnesses’ in s 9(1)(f) means likely in the sense of a tendency or real possibility. It does not mean ‘more likely than not’, ‘probably’, or ‘very likely.’” (emphasis added).

<End Case Quotation>

In considering s 9(1)(e) or (f), a Magistrate should interpret “likely” in accordance with the meaning given in Kysely v The State. In considering s 9(1)(a), a corresponding meaning should be given to the word “unlikely”.

10.4.3 “Interests of justice”

Section 9(1) of the Bail Act appears, on its face, to include all possible considerations for deciding whether or not a defendant should be granted bail. It seems to say that unless one of the considerations set out is satisfied, the defendant must be granted bail. However, s 9 must be interpreted in light of s 42(6) of the Constitution, the preamble to the Bail Act and s 3 of the Bail Act which stipulates that “a person is … entitled to bail … unless the interests of justice otherwise require.”

These provisions give a discretion to Magistrates to refuse bail, even in the absence of one of the considerations set out in s 9(1), and to grant bail, even when one of the considerations set out in s 9(1) does apply. The exercise of this discretion must be carefully guided by judicial authority.

10.4.4 Discretion to refuse bail in interests of justice

This is a discretion to refuse bail, even when none of the considerations of s 9(1) of the Bail Act apply but where it is in the interests of justice to refuse the application.

In Re Fred Keating [1983] PNGLR 133, Kidu CJ considered this question and said (at 135):

<Case Quotation>

“I hold the view that s 9 of the Bail Act 1977 does not contain all considerations that are relevant as to whether bail should be refused ‘in the interests of justice’. Section 42(6) of the Constitution does not say that the phrase ‘interests of justice’ may be defined by an Act. There are two reasons why the phrase must be given a very wide meaning and application:

(a)        It says ‘interests’ – ie the plural of the word ‘interest’ is used; and

(b)        Section sch 1.5(2) says that ‘All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning’.

‘Justice’ is a two-edged sword and cannot possibly be confined to mean those considerations enumerated in s 9(1) … For instance, in my opinion, it would be in the interests of justice to refuse bail to a person known to be a habitual criminal, although s 9(1) does not say so.”

<End Case Quotation>

In the same case Andrew J concurred (at 139).

The considerations of “the interests of justice” in Re Fred Keating did not form a necessary part of the decision in that case and were obiter dicta: see Chapter 25. Kapi DCJ dissented on the interpretation of the meaning of “interests of justice” and the discretion it afforded Judges and Magistrates to go outside a strict application of s 9(1). Nevertheless, the judgments of Kidu CJ and Andrew J provide authority for Judges and Magistrates to exercise their discretion to deny bail even when none of the considerations set out in s 9(1) apply.

Neither Judge attempts to exhaustively list the circumstances that could provide a basis for the exercise of discretion to refuse bail even where none of the s 9(1) considerations apply.

The case of The State v Beko Job Paul [1986] PNGLR 97 provides further authority for the proposition that there is a discretion to refuse bail even when none of the s 9(1) considerations apply. The nature of the offence was held to be such that it justified the denial of bail in the “interests of justice”. Wilson J said (at 99):

<Case Quotation>

“I consider that the offence the nature of which involves the clear intent to secure arms negates that presumption and that the interests of justice are not served by failing to give special significance to this type of crime and the consequences that flow, or could flow from it. On the basis of this reasoning I refuse bail, there being nothing in the application which convinces me that the continued detention is not justified.”

<End Case Quotation>

Individual cases might arise where other considerations merit the exercise of discretion to deny bail. However, any consideration must be referable to the “interests of justice” used in the Constitution and in s 3 of the Bail Act.

10.4.5 Discretion to grant bail in interests of justice

A related question is whether, if one or more of the considerations set out in s 9(1) of the Bail Act apply, a Magistrate or Judge has the discretion to grant bail. The answer to this question also depends on the interpretation of the phrase “the interests of justice”.

In Re Fred Keating, Andrew J (at 140) held that there is jurisdiction to grant bail in every case:

<Case Quotation>

“When one or more of the considerations in s 9(1) is shown to exist then there is a ground for refusing bail. The use of the word ‘shall’ does not mean, in my opinion, that bail must as a matter of course be refused when those matters are proved. To read it that way would be contrary to the whole scheme and intent of the Constitution and the Bail Act. Whether or not bail is refused is a matter of discretion.”

<End Case Quotation>

This is authority for a Magistrate to exercise discretion to grant bail “in the interests of justice” even if one or more of the considerations of s 9(1) of the Bail Act does apply. The existence of this authority is supported by s 42(6) of the Constitution. The exercise of this discretion would arise only in rare cases and should be clearly linked by a Magistrate, in his or her reasons, to “the interests of justice” as they apply in the particular case.

10.4.6 Applications after conviction

The provisions of s 9(1) of the Bail Act do not specifically apply to applications for bail that are made after conviction but prior to sentencing or appeal. Applications for bail in those instances are made pursuant to ss 10 and 11 of the Bail Act respectively. Those sections provide only for bail to be granted in the court’s discretion. They do not provide specific factors for the guidance of the court in exercising that discretion.

A defendant must demonstrate to the court that there are exceptional circumstances that justify the release on bail of a convicted person. Case law has provided some guidance.

·           In Smedley v The State [1978] PNGLR 452, the desire of the applicant to be released from custody to instruct counsel was found not to be an exceptional circumstance. Nor was the applicant’s desire to assist his wife in establishing a new business, to perform duties as executor of an estate, to assist his wife in finding new accommodation or to engage in a business venture.

·           In Jaminen v The State [1983] PNGLR 122, the desire to perform duties as a member of Parliament was not an exceptional circumstance.

·           In Yaki v The State SCA No 74 of 1990, the Supreme Court found that the desire of the applicant, who was a member of Parliament, to attend to his political duties and specifically to account for government funds was not an exceptional circumstance. The desire to be released in order to instruct counsel was similarly rejected.

These judgments suggest that a very strong prospect of success on appeal could form an exceptional circumstance.

10.5 PROCEDURE AT A BAIL HEARING

10.5.1 The issue and the burden of proof – before conviction

In a bail application prior to conviction the onus of proof is on the prosecution. If a prosecutor opposes bail, he or she must adduce evidence to satisfy the Magistrate that one of the considerations of s 9(1) of the Bail Act applies, or that, even where none of the considerations applies, it is in the interests of justice to order the detention of the defendant in custody: see 10.4.4.

The wording of the Bail Act indicates that the standard of proof required of a prosecutor who opposes the grant of bail is less than the criminal standard of proof. Section 9(1) begins with the words:

<Legislation Quotation>

“Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations”.

<End Legislation Quotation>

Re Fred Keating (at 140) clearly indicates that a prosecutor who opposes bail in a case where s 9 applies, must only demonstrate that there are substantial grounds for believing that one of the s 9(1) factors applies.

10.5.2 The issue and burden of proof – after conviction

Where an application for bail is made after conviction but before sentence or pending appeal, the constitutional right to bail does not apply. A person is not constitutionally presumed to be entitled to bail. The presumption of innocence no longer applies. The onus of proof is on the person applying for bail and not the prosecutor.

10.5.3 Evidence

Section 9(2) of the Bail Act provides that:

<Legislation Quotation>

“In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.”

<End Legislation Quotation>

The effect of this section that any relevant evidence may be admitted, regardless of whether it complies with the strict rules of admissibility.

Hearsay: Hearsay evidence is normally admitted at a bail hearing. This gives a prosecutor, lawyer or any other witness the opportunity to make submissions that include facts that have been reported to them. For instance, bail hearings usually include submissions that are prefaced by such expressions as “My client instructs me that …” or “According to police records …”.

Another form of hearsay evidence that is admissible at a bail hearing is that which is found in documents. A defendant might adduce evidence in the form of a letter from an employer, a wantok, a priest, a minister or anyone else who can offer relevant evidence for consideration by a Magistrate in deciding the issue of bail: see 5.17.

Opinion: Another form of evidence that is routinely admitted at a bail hearing, but which may be contrary to the technical rules of evidence, is opinion. For example, a witness may offer an opinion about the trustworthiness of the defendant. A prosecutor might advance an opinion about the chances of the defendant showing up for trial or the attitude of the defendant towards the victim of the alleged offence. These opinions would normally be inadmissible at a trial but may be admitted by a Magistrate at a bail hearing if they are relevant to the issue: see 5.25.

Character: Another form of evidence that may be technically against the rules of evidence is that of character. A defendant may have character traits, the evidence of which might well be inadmissible at a trial of the charges he or she faces. However, the evidence may be relevant and admitted by a Magistrate at a bail application: see 5.5.

10.5.4 Natural justice

Bail applications can be less formal than a trial. The Bail Act does not prescribe any formal procedure. However, it is important that at every stage of a bail application fairness prevails. Normally, when the issue of bail arises, either by way of an application made by the defendant or automatically pursuant to s 7 of the Bail Act, a Magistrate will ask the prosecutor what position he or she takes in connection with bail. If the prosecutor takes the position that the defendant should not be granted bail, he or she is then offered an opportunity to adduce evidence in support of that position.

Once the prosecutor has presented evidence, the defendant may adduce evidence. It is important where a defendant is unrepresented to ensure that the nature of the application, and particularly the issue, is clearly understood by the defendant.

The fundamental rules of natural justice must be adhered to in a bail hearing as they are in any other type of judicial hearing. Each side must be given an opportunity to present its case and each side must be given a chance to respond to the other side’s case.

One of the rules of natural justice is that each side be given an opportunity to question those who adduce evidence against them. In hearings such as a bail application where the rule against hearsay is not routinely enforced, it may not be possible to give each side an opportunity to question the person making prejudicial assertions. Magistrates are therefore faced with a balancing of interests. On the one hand, there is an interest in keeping a bail hearing as informal, inexpensive to the parties and efficient as possible. On the other hand, natural justice applies. A Magistrate must be aware of these sometimes-conflicting priorities when determining what rules of evidence to apply.

Although the defendant may make repeated applications for bail, a prosecutor does not have the same ability to make repeated applications to refuse bail. Once bail has been granted, a prosecutor may apply to vary or revoke bail, but only on the basis of some change in circumstances since the original bail order was made.

Section 14 of the Bail Act allows for a person to be granted bail even though he or she is not present when it is granted.

10.5.5 Where prosecutor does not oppose bail absolutely

In some cases, the prosecution will not take the position that bail should be refused, but that it should only be granted with conditions imposed. The prosecutor may outline the conditions he or she is seeking. In these cases, Magistrates should bear in mind two matters.

1.         Understanding of defendant: A defendant, especially one who is unrepresented, may be desperate to be released from custody and might be inclined to immediately agree to the conditions proposed by the prosecutor, even though these might be very difficult or even impossible to fulfil. Accordingly, a Magistrate should be careful to ensure that a defendant understands the conditions that he or she is agreeing to and understands what is required to fulfil them.

2.         Whether conditions required: A further duty of a Magistrate in these circumstances is to satisfy himself or herself that the conditions are required in view of the provisions of the Bail Act. In other words, just because the prosecutor considers the grant of bail on proposed conditions that to be appropriate, it does not relieve a Magistrate of the duty to ensure that these are consistent with the interests of justice.

10.5.6 Giving reasons for decision

Section 16 of the Bail Act requires that reasons for a Magistrate’s refusal to grant bail be delivered and recorded. However, it is a good idea to give reasons for a decision in all cases. This assists when a Magistrate or Judge is called upon to make a further decision with respect to the issue of bail. This situation can arise where variation of the conditions of bail is sought, where an application is made to revoke bail or where there is an appeal of the decision to grant bail: see Chapter 25.

10.6 THE BAIL CERTIFICATE

Section 15 of the Bail Act provides that a defendant is required to have a copy of the certificate in his or her possession at all times, unless it is required by his or her lawyer, or where the defendant is in custody pending the satisfaction of a condition that has been imposed in the grant of bail.

Where a person is granted bail but must satisfy conditions prior to release, a copy of the bail certificate is to be attached to the warrant of committal.

10.7 CONDITIONS ATTACHING TO BAIL

The Bail Act does not provide a finite list of possible conditions that may be imposed. Different cases will require different conditions, and some conditions might be completely unique to the application being considered. A Magistrate’s job is to balance the presumption of entitlement to bail with the “interests of justice” in such a way that the conditions imposed (if any) are reasonable and fair in all the circumstances.

However, the discretion to impose conditions when granting bail is not unfettered.

In deciding what conditions are appropriate, a Magistrate must remember that the issue is not guilt or innocence. For instance, it would not be appropriate to impose a condition that the defendant compensates the victim, provides the name of a person who acted jointly in the commission of the offence or makes an apology. These conditions are all inconsistent with the presumption of innocence.

10.7.1 Automatic condition to appear

Section 17 of the Bail Act requires an automatic condition, namely that the defendant appear at every time and place to which the proceedings are adjourned from time to time. This eliminates the need to attach a new bail condition each time the matter is adjourned to a new date.

This condition should be clearly brought to the attention of a person granted bail, as it may not be clear from a reading of a standard bail certificate in Form 2.

10.7.2 Conditions to be satisfied before release

Section 18 of the Bail Act provides a wide discretion to a Magistrate to attach appropriate conditions to a grant of bail. It may be necessary for a person granted bail to satisfy them before being released.

10.7.3 Conditions to be satisfied after release

There is a wide range of conditions that are to be satisfied after a person is released on bail.

10.7.4 Guarantors

A guarantor is a person who, pursuant to s 19 of the Bail Act, gives an undertaking to ensure that a defendant who is granted bail will appear at his or her trial and will comply with other conditions imposed.

Section 19(2) of the Bail Act provides that a guarantor may only be required where it is considered that without one a defendant will not appear at court or will not comply with other conditions that are imposed.

The requirement that an applicant for bail secure a guarantor is often imposed in cases where it is felt that a financial consequence should follow on non-compliance with conditions, but the defendant does not have an ability to deposit money in an appropriate amount.

Guarantors may be required to either pay money into court to secure the release of the defendant on bail or to undertake to pay the state a specified sum if the defendant does not comply with the conditions of bail. The former requirement is the most stringent and avoids collection proceedings and possible non-payment in the event that the state is obliged to pursue a guarantor. Therefore, when imposing an undertaking, a Magistrate should feel confident that enforcement of a guarantor’s obligations, should that be required, would be successful.

Section 19(6) requires that the financial means of a guarantor be taken into account. A Magistrate, in deciding on a sum of money that will be appropriate, should also consider other factors such as the minimum amount which will provide an incentive for the guarantor to ensure that the defendant appears and abides by all bail conditions. The seriousness of the offence and the circumstances of the defendant are usually legitimate considerations in making this determination.

In many cases, the identity and suitability of a guarantor can be determined by a Magistrate in the course of a bail hearing. However, a Magistrate is able to delegate this matter to a member of the police pursuant to s 19(3) of the Bail Act.

In any case, no more than two guarantors may be required.

Section 21(3) provides that once a guarantor has either given an undertaking or made a deposit of money, he or she is entitled to be heard on any subsequent occasion where the terms of bail are being varied in a manner that makes the guarantor’s obligations more onerous.

10.8 VARIATION AND REVOCATION

10.8.1 Variation

Between the initial grant of bail by a Magistrate and the conclusion of the case, changing circumstances may make it appropriate to change the bail status of a defendant. Section 20 of the Bail Act allows either the defendant or the prosecutor to apply for a variation in the terms and conditions of bail.

A successful application for variation might result in bail conditions more favourable to a defendant or more stringent conditions. Some applications for variations are relatively non-contentious. For instance, where a defendant is required to change residences or place of employment for legitimate reasons, and existing conditions prevent this, a change is appropriate.

10.8.2 Revocation

Between the time of the original bail order and the disposition of the defendant’s case, a change in circumstances may come to the attention of the prosecutor. The prosecutor may consider that these changes warrant more than simply a variation of the terms of a bail order. If so, the prosecutor may apply for an order revoking bail pursuant to s 21 of the Bail Act. This section does not set out specific considerations for a Magistrate in relation to such an application. The section simply says that an order revoking bail may be made where there are reasonable grounds for doing so.

If a defendant pleads guilty and is likely to be sentenced to a period of imprisonment, this might constitute a reasonable ground for revoking bail.

A Magistrate, in considering an application to revoke bail pursuant to s 21, may, instead of revoking bail, vary the conditions of bail. This outcome would be appropriate where the prosecutor has raised legitimate concerns in relation to the existing terms of bail but these concerns are not serious enough to revoke bail altogether.

10.8.3 Forfeiture

Where a defendant fails to abide by a condition of bail, s 22 of the Bail Act provides that a court may make an order forfeiting any sum of money that the defendant has deposited or undertaken to pay. This section does not refer to money paid as security by a guarantor.

The most common circumstance in which such orders are made is where a defendant fails to appear in court on a date to which the proceedings have been adjourned. In such a case, it is not possible to hear from the defendant as to why such an order should not be made. However, s 22(3) of the Bail Act provides that within 14 days of the making of an order a person affected by the order may apply to the court making the order for variation or revocation of the order. At the very least, “a person affected” would be the defendant. However, another person who is able to demonstrate that they are “affected” by the order might also apply.

After the expiry of 14 days from the making of a revocation order, a Magistrate has no jurisdiction to extend the time for making an application pursuant to s 22(3). The Supreme Court, in Supreme Court Reference No 12 of 1984; Re Joe Parakas v The State, held that although the defendant’s non-appearance which gave rise to the forfeiture order, and his subsequent inability to apply to vary or revoke the order, were both caused by circumstances beyond his control, there is no jurisdiction (in any level of court) to entertain an application outside the 14 days.