N3999

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

MP 673 OF 2009

IN THE MATTER OF BAIL APPLICATION BY BERNARD URIAP

Waigani: Kariko J
2009: 7, 9 October

CRIMINAL LAW – PRACTICE AND PROCEDURE – bail application – earlier refusal of bail by another judge – need for applicant to furnish full reasons for refusal by previous judge – need for applicant to show change in relevant circumstances – relevant circumstances must relate to reasons for refusal in the earlier application – requirements for bail application after earlier refusal.

Cases cited:

Re Fred Keating [1983] PNGLR 133
Re Kou Dua [1984] PNGLR 22
Re Thomas Markus (1999) N1931
Re Bobby Selan (2009) N3690
Aika v Uremany [1976] PNGLR 46

Counsels:

N Kubak, for the Applicant
J Wohuinangu, for the Respondent

9 October, 2009

1.	KARIKO J: The applicant has been charged with several offences concerning the administration of justice:

(a)	Two counts under section 124(b) Criminal Code – false representation to witnesses with intent to affect their testimonies. 

(b)	Two counts under section 122(1)(b) Criminal Code – with intent to mislead a tribunal in a judicial proceeding, uses fabricated evidence.

(c)	One count under section 128(1) Criminal Code – conspiring to defeat the course of justice.

(d)	One count under section 407(1)(b) Criminal Code – conspiracy to defraud.

(e)	One count under section 403(1) Criminal Code – false pretence (although I note that this is a definition provision rather than one that creates an offence). 

2.	The Statement of Facts to the charges allege that the applicant caused certain witnesses in a previous willful 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. It is 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 535of 2005 and for the civil claim, W.S. No. 1311 of 2007. 

3.	The current charges against the applicant are going through committal proceedings in the Kokopo District Court. Soon after his arrest in July 2009, he applied for bail to the National Court and was refused bail by Makail, J. He now makes this fresh bail application and relies on section 42(6) of the Constitution and section 6 of the Bail Act. 

State’s Position

4.	The State again opposes the bail application arguing that there has been no change in relevant circumstances and maintain as in the previous application that the applicant is likely to interfere with witnesses (Section 9(1)(f) Bail Act). 

The Relevant Law

5.	Section 42 (6) of the Constitution provides: 

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

6.	The Bail Act gives effect to this constitutional provision. Section 6(1) provides for bail to be applied for at any stage of a proceeding, and section 6(3) imposes a duty on a court to consider an application for bail, subject to section 4, and in accordance with section 9 which lists circumstances for which bail can be refused. Bail shall not be refused unless at least one of the considerations set out under section 9(1) exists. But even if one or more of the considerations exist, the court still has a discretion whether to grant bail or not, the onus being on the applicant to show why his detention in custody is not justified: see Re Fred Keating [1983] PNGLR 133 and Re Kou Dua [1984] PNGLR 22. 

7.	Where a judge of the National Court refuses an application for bail, the applicant may apply to the Supreme Court under section 13(2) or make another application before the same judge or another judge of the National Court, in which case the applicant must show that there has been a change in the relevant circumstances. See Re Thomas Markus (1999) N1931 and Re Bobby Selan (2009) N3690.

8.	The right to make a second application before the same court is not expressly provided in the Bail Act. In Re Thomas Markus, Injia J (as he then was) stated:

"An applicant refused bail previously by a Judge of the National Court may re-apply afresh to the same judge or another judge of the National Court if changes in relevant circumstances have occurred since bail was last refused. This principle is derived from s 6 and s 7 of the Bail Act."

9.	Cannings, J in Re Bobby Selan agreed with this proposition and added:

"I point out that the right to make a fresh application to the National Court – rather than going to the Supreme Court under section (2) – is not expressly conferred by the Bail Act. Some judges have taken the view that there is no such right and that an unsuccessful applicant cannot go back to the National Court – they must go straight to the Supreme Court under section 13(2). Gabi, J expressed that view in Michael Phillip v The State (2007) N3217. With respect, I prefer the view taken in Re Thomas Markus to that taken in Michael Philip’s case. I think it more effectively implements the policy in Section 42(6) of the Constitution that there is a presumption in favour of bail and that a person detained in custody has a right to bail unless the interest of justice require otherwise." 

I approve and adopt these remarks of Cannings, J.

10.	Counsel for the applicant did not refer to any of the above authorities, but cited the case of Aika v Uremany [1976] PNGLR 46 as authority giving the right for a second bail application before the same court. But that case must be distinguished from the present as it arose before the enactment of the current Bail Act and dealt in particular with the then section 45 of the Local Courts Act. The majority of the Supreme Court in Aika v Uremany held that where an application for bail had been refused by a judge, another judge had no jurisdiction to entertain another application made on the same grounds. (My emphasis). The statutory provisions under consideration then were different, and naturally the decision differs from the principle pronounced in Re Thomas Markus, but clearly the common factor in both decisions is that the second bail application before the same court (judge) must be different – as to the grounds (Aika v Uremany) or relevant circumstances (Re Thomas Markus).

11.	Re Thomas Markus and Re Bobby Selan confirm the following to be the relevant principles concerning fresh applications for bail before the same court: 

1.	The applicant must show there has been a change in circumstances; and

2.	The change in circumstances must relate to the grounds for refusal of bail under section 9(1) of the Bail Act in the first application. 

12.	These cases establish that the applicant must meet four requirements:

1.	Notify the court of the earlier refusal of bail.

2.	Provide a copy of the reasons for the earlier refusal of bail ("Reasons for Refusal".

3.	Present evidence of change in the circumstances.

4.	Demonstrate how the change is relevant.

The Present Application

13.	The court has been made aware of the previous bail application by Makail, J. But a copy of the Reasons for Refusal by Makail, J was not produced by the applicant and none found in the relevant court file. This begs the question: Can I consider the application without the Reasons for Refusal? The applicant submitted that the Reasons for Refusal are not necessary to consider the application, while the State argued otherwise and relied on Re Thomas Markus.

14.	In Re Thomas Markus, Injia J (as he then was) after discussing sections 13 (Further application may be made after refusal) and 16 (Reasons for refusing bail to be given and recorded) of the Bail Act, held that " an applicant re-applying for bail before the same or another judge of the National Court following refusal of bail by the same or another judge of the National Court, should be required to furnish a copy of the full reasons for refusal as provided under section 16 of the Act." In Re Bobby Salen, Cannings J did not address the question specifically, although the judgement clearly states that the Reasons for Refusal is required for a second bail application before the same court (judge).

15.	The applicant has not explained why there is no Reasons for Refusal except to submit that it is not necessary and the reasons for the refusal are explained by the applicant in his affidavit where the applicant states that the objection to bail in the previous application was the fear of interference with witnesses. While it is not suggested that this statement by the applicant is not accurate, it is not the same as the proper and full written reasons by the judge in the first instance.

16.	I am of the view that if an applicant for bail does not produce the Reasons for Refusal, then unless there is good justification why it cannot be produced, the fresh application for bail should not be heard. Such justification might be that the judge did not deliver any written reasons. The Reasons for Refusal are central to the court reconsidering the bail application, as it would fully appraise the court of why bail was earlier refused and allow the court to properly determine if there has been change in circumstances, and if the change is relevant (in relation to the ground for refusal of bail). I therefore refuse the application for bail. 

17.	Even if I am wrong, I consider the evidence presented by the applicant does not show change in circumstances that are relevant. I again stress that the change in circumstances must relate to the grounds for refusal of bail under section 9(1) of the Bail Act in the earlier application. 

18.	The applicant firstly submitted that the police have since the first bail application, completed their investigations relating to the various charges. The applicant therefore contends that there is no likelihood of interfering with witnesses as their statements have been finalised and if there is interference, it would show if the witnesses changed their story at the time of trial. As it appears that the likelihood of interfering with witnesses was the basis upon which bail was first refused, then I do not see how the completion of police investigations changes or affects that consideration. The likelihood of interference with witnesses runs right through from arrest to disposition of the charges, and not only during the investigations.

19.	Secondly, the applicant submitted he has medical conditions (concerning his liver, stomach and spleen) that require regular treatment and consultation. A letter dated 17 August from a Dr Kaven of the Nonga General Hospital was produced to confirm this. The letter also states that the conditions date back to 2006, so they existed at the time the previous bail application was made. The medical conditions are therefore not changes in circumstances and are not relevant to the consideration of the likelihood of interfering with witnesses. 

20.	The applicant also submitted that his co-accused have since been granted bail. The only information presented was that one co-accused, a policeman named Poren Yagiri, was allowed bail of K1000 while the other, a lawyer named Justin Isaac was granted bail of K1000 by the Supreme Court (apparently after refusal of bail by the National Court in Wabag). I am not aware of any authority for the proposition that if an accused person is granted bail by one court, then a co-accused is automatically entitled to similar bail. I must consider this bail application on the material placed before me (including information about the bail of the co-accused), and applying the relevant legal principles, decide whether or not to grant bail. That is, I must consider this application on its own merits. I do not consider this ground, a change in the relevant circumstances.

21.	Finally, the applicant submitted that he has engaged new lawyers since the previous application. This ground is not a change in circumstances relevant to the refusal of bail by Makail, J, and is accordingly rejected.

22.	For all the foregoing reasons, I refuse this application for bail.

_________________________________

Norbert Kubak & Co.: Lawyer for the Applicant
Acting Public Prosecutor: Lawyer for the Respondent