N3822

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 779 OF 2009 (2)

In the Matter of an Application pursuant to section 13 of the Bail act, Chapter 40

BETWEEN:

BERNARD URIAP
Applicant

AND:

THE STATE
Respondent

Waigani: Salika, DCJ
2009: 23 December

PRACTICE AND PROCEDURE – Bail Applications – National Court – Refusal by one Judge of the National Court – Bail Application – before another National Court Judge – Refusal by the second National Court – Bail Application under s.13 (1) of the Bail Act – National Court has no power to hear this application.

Cases Cited:

Fred Keating v The State [1983] PNGLR 133
Re: Herman Kagl Diawo [1980] PNGLR 148
Re: Thomas Markus (1999) N1931 Unreported National Court decision

Legislations:

Constitution s.42(6) 
Bail Act ss.3, 6, 7, 8, 9, 13 and 16

Counsel:

Mr Donald, for the Applicant
Mr P Kaluwin, for the Respondent.

23rd December, 2009

1. SALIKA DCJ: Before the Court is an application for bail under s.13(1) of the Bail Act.

2. The background facts to the application are that the applicant has been charged with several offences concerning administration of justice namely:

1. Two counts under s.124(b) of the Criminal Code – false representation to witnesses with intent to affect their testimonies.

2. Two counts under s.133(1)(b) of the Criminal Code – with intent to mislead a tribunal in a judicial proceeding, fabricated evidence.

3. One count under s.128(1) of the Criminal Code – conspiring to defeat the cause of justice.

4. One count under s.407(1) of the Criminal Code – conspiring to defraud.

5. One count under s.403(1) of the Criminal Code – false pretence.

3. The statement of facts are succinctly summarised by Kariko, J in an earlier bail application which are that the Police alleged that the applicant cause certain witnesses in a previous wilful murder charge against him in 2004 to change their evidence which resulted in that murder charge being dismissed by the National Court on 14 August, 2007. The police further alleged that he also caused witnesses to sign false statements concerning a civil claim for damages he filed against the State in the National Court

The court reference for the murder charge is CR 535 of 2005 and for the civil claim is WS No 1311 of 2007.

4. The applicant was committed to stand trial in the National Court by the Kokopo Committal court on 17 November, 2009.

5. The circumstances leading to this application are that soon after his arrest in July 2009, the applicant applied to the National Court in Kokopo for bail but was refused bail by Makail, J. On 7 October 2009 in Waigani he made another fresh application to the National Court for bail pursuant to s.42(6) of the Constitution and s.6 of the Bail Act. That application was refused by Kariko, J. The issue of making another bail application before the National Court again was not raised before Kariko, J.

6. The Public Prosecutor appeared for the respondent in this application. The respondent named in this application is the State. Counsel for the respondent objected to the application but before the substantive grounds were argued he made a preliminary application to dismiss the application for want of jurisdiction. He relied on s.13(2) of the Bail Act. He submitted that the National Court has no jurisdiction to hear this application again and that the applicant must now make a fresh application to the Supreme Court. He did not differentiate whether before a single judge Supreme Court or a full bench Supreme Court.

7. For the purpose of the application I reproduce the whole of s.13. It provides:

Section 13:. Further application may be made after refusal.

(1) Where a person is refused bail by a Magistrate he is entitled to apply for bail, immediately if he so desires, to a Judge of the National Court.

(2) Where a person is refused bail by a Judge of the National Court he is entitled to apply for bail, immediately if he so desires, to the Supreme Court.

(3) Where an application is made under Subsection (1) or (2), the applicant shall produce a copy of the reasons given under Section 16.

(4) An application may be made under Subsection (1) or (2) whether or not bail was refused—

(a) under this Act (including this section) or under any other law; or

(b) on an application.

8. The right to bail is right given by s.42(6) of the Constitution. It reads:-

s.42(6) A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

9. The Bail Act was passed in 1977 to give a detailed effect to s.42(6) of the Constitution. Part II of the Bail Act (Section 3,4,5,6,7,8 & 9) provide for grant of bail before acquittal or conviction. Part III (s.10, 11 and 12) provide for grant of bail after conviction. Part IV (s.13) provides for the procedure on grant or refusal of bail. Part V (s.14, 15 and 16) also provides for procedure on grant or refusal of bail. Part VI of the Bail Act (Section 17, 18 and 19) provides for obligations and conditions relating to bail.

10. Section 3 of the Bail Act lays down the object of the Act which is to give effect to s.42(6) of the Constitution. It reads:

S.3. Object of Part II.

The object of this Part is to give effect to Section 42(6) (liberty of the person) of the Constitution which provides that a person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention and to acquittal or conviction unless the interests of justice otherwise require.

11. Section 6 of the Act gives further effect to s.42 (6) of the Constitution. It reads:-

S.6. Application for bail may be made at any time.

(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.

(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.

(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section 9.

12. It is generally accepted that every application for bail, be it before the District Court, the National Court or the Supreme Court, is a fresh application. It is not to be treated as an appeal as one goes higher up in the hierarchy of the court tier system, although the scheme may give that impression.

13. Section 9 of the Act in furtherance of the general constitutional scheme says bail is not to be refused except on certain grounds as enumerated under that provision. But even where any of the factors under s.9(1) have been established the court still has a wide discretion to grant bail. In other words s.42(6) should be given full effect and an applicant for bail should be readily granted bail. In Fred Keating v The State [1983] PNGLR 133 Kidu CJ and Andrew J said:-

"If one of the considerations in s.9 is present, it does not follow that bail must automatically be refused; there is always a discretion in the bail authority to grant bail".

14. In Re: Herman Kagl Diawo [1980] PNGLR 148 Kapi J (as he then was) held:-

"The right to bail is a constitutional right (s.42(6) and must be given readily unless the interest of justice require otherwise."

15. It is therefore clear that the scheme for applications for bail under s.42(6) of the Constitution and the Bail Act is that bail is to be readily granted unless the interest of justice otherwise require. That is why an applicant may apply for bail at any time from arrest or detention and even after conviction. I note s.6(1) and (2) of the Bail Act are not subject to s.13 of the same Act. This is because in my respectful view s.6 is a general provision for bail applications. It is in my respectful view, not an open ended invitation to make bail applications after bail applications before the same court over and over again. There must be some end or finality to this. Each application is heard and determined on its own merits, including any changes in circumstances from the last application.

16. I am also mindful of s.7 and 8 of the Bail Act. These provisions in my respectful view are independent of s.6 of the Bail Act. Section 6 makes provisions for and gives the burden to the applicants to apply for bail. Sections 7 and 8 makes provisions for the court to consider bail on each and every occasion that it adjourns the proceedings before conviction or sentence. It is the courts duty to ensure compliance with s.7 and 8 of the Bail Act. In practice bail is considered at the call overs or at the end of a circuit. Section 13 may be invoked by a person refused bail under s.7 and 8 of the Bail Act.

17. When one considers the issue of bail in that light, there are indeed a lot of opportunities for applications for bail to be made and ultimately it is the court that must consider all the factors as to whether or not to grant bail. This is an onerous task when the court has to consider the applicants interest as against community interest and the interest of justice.

18. In my view, s.13 is the specific provision in instances where bail applications had been previously made but refused by the applicants. Under the s.13 scheme when the Act was passed, an applicant could apply to the Local Court, District Court (different grades of magistrate then) National Court, single Supreme Court judge and the full Supreme Court. Where an applicant made such applications he made fresh applications at those forums. The scheme remains the same today even after the Local Court was abolished in 2000. Under the s.13 of the Bail Act an applicant can apply for bail at least 5 or 6 times before the various levels of courts, not forgetting that the provisions of s.7 and 8 are there to be utilised as well. 

19. The issue before the court is whether the National Court has jurisdiction to deal with an application for bail where he has been previously refused bail by another National Court, and where the applicant is seeking to invoke s.13(1) of the Bail Act.

20. It is my view that an applicant for bail after refusal by another court should go to s.13 of the Bail Act. In my view s.6 of the Act should not be availed of in cases where bail had been previously applied for but refused. This is because s.6 is a general provision where an applicant for bail can apply for bail at any time from arrest or detention or at any stage of the proceedings. As stated earlier s.6 is not subject to s.13 and vice versa. An applicant for bail can apply at any time for bail at any stage of the proceedings in his matter either under s.7, s.8 or s.13 of the Bail Act. 

21. Counsel for the applicant made reference to and relied on the decision of Injia J (as he then was) in Re: Thomas Markus (1999) N1931 where he held that an applicant refused bail previously by a judge of the National Court may reapply afresh if changes in relevant circumstances have occurred since bail was last refused. In that case the application was under s.6 of the Bail Act pending conclusion of committal proceedings. Sakora, J had refused bail earlier. The applicant then reapplied before Injia J (as he then was) another National Court judge for bail. This issue was not raised before Injia J (as he then was). His Honour proceeded to hear the application and effectively held that another National Court judge had jurisdiction to hear and determine a fresh application for bail after bail had been previously refused by another National Court Judge and where there have been a change in the circumstances.

22. In this case two prior bail applications have been refused by the National Court. This application is the third one before me, sitting as a National Court. The application is brought under s.13(1) of the Bail Act. First of all the application is not supported by the fact that the applicant was refused bail by a Magistrate. The fact is the applicant was refused bail by the National Court not once but twice and not by a magistrate. On fact alone he is defeated from the outset because a magistrate did not refuse him bail. It was a judge who refused him bail earlier.

23. I note too that when the two prior applications were made the applicant was awaiting committal proceedings. The applicant was committed fair trial in the National Court on 17 November, 2009. There is no evidence before me as to whether bail was considered but refused by the Committal Magistrate at the time the applicant was committed for trial (s.8 of the Act). If there was such evidence of refusal by the Committal Court then s.13(1) of the Bail Act would be relevant and would be properly invoked. Counsel for the applicant did not inform the court whether at the time of committal, the committing Magistrate considered bail at all then.

24. In the absence of such evidence, this application under s.13(1) of the Bail Act cannot be entertained by the National Court as it is now out of jurisdiction in my view. The National Court will have jurisdiction to consider bail under s.7 of the Act at a call-over or on adjournment..

25. The applicant in my respectful view should invoke s.13(2) of the Bail Act and not s.13(1), that is, if he is refused bail by the National Court, he should apply to the Supreme Court for bail afresh. That to me is the logical sequence. He is entitled to go first before a single judge of the Supreme Court. If he fails there, he is entitled to go before the full bench of the Supreme Court afresh.

26. Every application afresh before any bail authority should have the reasons for refusal to grant bail (s.16 of the Bail Act). This will assist the next bail authority to make an informed decision when considering the next bail application.

27. In this case, with respect, I do not think the applicant can come again to the National Court either under s.6 or s.13(1) of the Bail Act. The next bail authority for him to go to under the circumstances is the Supreme Court under s.13(2) of the Bail Act, either before a single judge of the Supreme Court or the full bench of the Supreme Court. Moreover, he can also wait for the next call-over for the court to consider bail at the next call over under s.7 of the Bail Act.

28. Note: After this ruling the applicant converted the application into a Supreme Court application before a single judge of the Supreme Court, pursuant to s.13(2) of the Bail Act and the application was heard sitting alone as a Supreme.

____________________________________________

Donald & Company Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent