N850

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

MENE MAMAINO

Lae
Doherty AJ

14 May 1990

CRIMINAL LAW - Practice and procedure - Bail application - Notice of - Power to dispense with - Unrepresented remandee appropriate case - Criminal Practice Rules 1987, O 1, rr 11, 12.

CRIMINAL LAW - Practice and procedure - Non-compliance with Act and Rules - Power to waive compliance - Notice - Bail application - Unrepresented remandee appropriate case - Criminal Practice Rules 1987, O 1, rr 11, 12.

Held:

The power to dispense with compliance with the rules relating to the requirements for written notice of applications to the court in O 1, r 12 of the Criminal Practice Rules 1987, is appropriately to be exercised in respect of bail applications by unrepresented persons held on remand: the right to apply for bail is a constitutional one and the Bail Act (Ch No 340), s 6(2), imposes on the court a mandatory obligation to consider an application for bail where it is made.

Cases Cited

The following case is the only one cited in the judgment:

Mathias Evertz v The State [1979] PNGLR 174.

Bail application

This was the hearing of an application for bail made in court by unrepresented remandees.

Counsel:

M Peter, for the State.
The defendants in person.

14 May 1990

DOHERTY AJ.: The defendant and others asked for bail pending hearing of their cases in the course of call-over on 4 May 1990. Their bail applications were set down for hearing on Monday, 14 May 1990.

The Public Solicitor’s Office has indicated they have not granted legal aid for these bail applications and the defendants now represent themselves. Mr Peter of the State Prosecutor’s Office has raised a procedural objection, apparently under the Criminal Practice Rules 1987, O 1, r 11 and the Practice Direction CR 1 of 90 circulated in January 1990. Both these matters deal with notice in bail applications.

Section 177 of the Constitution imposes certain statutory obligations on the Public Solicitor to represent defendants but these do not include an obligation to represent the defendant seeking bail before the National Court. The obligations of the Public Solicitor have been fully considered in Mathias Evertz v The State [1979] PNGLR 174.

The Criminal Practice Rules and the Practice Direction CR 1 of 90 provide that all applications under the Criminal Code (Ch No 262), the Probation Act and the Rules shall be made by originating summons. The Practice Direction CR 1 of 90 provides that there should be at least two clear days notice of a bail application. The court may dispense with compliance with the rule that all applications shall be made by originating summons where it is in the interest of justice to do so: O 1, r 12 of the Criminal Practice Rules 1987.

The Bail Act 1977 (Ch No 340), s 6(1), provides that an application for bail may be made to a court at any stage of a proceeding. This section follows on directly from s 42(6) of the Constitution which categorically states that a person arrested or detained for an offence (other than treason or wilful murder) is entitled to bail at all times to conviction or acquittal unless the interests of justice otherwise required. Hence the entitlement to apply for bail is a statutory one and is vested in a defendant at all times until his court case is finalised by way of acquittal or conviction.

The obligation on a court to consider an application for bail is a mandatory one stated in s 6(2) of the Bail Act imposing on a court an obligation to consider an application for bail at the time it is made.

In the cases before me each of the defendants asked for bail at call-over on 4 May, in the presence of the State Prosecutor, and the cases are now being considered today, 14 May 1990, and I am satisfied that reasonable steps have been taken to advise the informant that the application would be made. In the circumstances I consider the court is obliged to consider these applications in the light of the provisions of the Bail Act.

The provisions of the Criminal Practice Rules and Practice Direction CR 1 of 90 are made for the proper and smooth running of the court, for the sake of records and to ensure that the parties are duly notified and aware of the grounds of the application. They cannot, however, supersede or be a bar to an applicant exercising his constitutional right under s 42(6) of the Constitution to ask for bail at any time. I consider that it is common knowledge that there are no typing facilities in the remand centre at Buimo and the remandees have very limited access to paper etc. I therefore consider that these are proper circumstances in which a court may dispense with compliance with O 1, r 11 of the Criminal Practice Rules and I allow these defendants to bring their applications without lodging an originating summons. The court will record all grounds and evidence in writing as provided by O 1, r 13.

Leave to proceed

__________________

Lawyer for the State: Public Prosecutor.
Defendants in person.