N5542

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CRAPP 56 of 2014

In the matter of Variation of Bail conditions made pursuant to Section 20 (1) of the Bail Act. Chapter 340.

SELWIN OROSOTA
Applicant

V

THE STATE
Respondent

Lorengau: Geita AJ
2014: 11, 12 March

CRIMINAL LAW – Application for Bail Variation- Guarantors are Interested parties – Their views must also be obtained – Omission of guarantors considered fatal -Reasons for variation must be genuine and not general in nature – The need for reasonableness, satisfactory and exceptional circumstances must be present- Section 20 (1)Bail Act 1977– Application refused.

Counsel
Ms. Sabenu Katurowe, for the Applicant 
Mrs. Laura Kuvi, for the State

12 March, 2014

REASONS FOR DECISION

1. GEITA AJ: The applicant, a probationary police constable was attached to NCD Police Dog Unit in Bomana prior to coming to Lombrum Naval Base for the Asylum Seekers police operation in March 2013. During the cause of his stay in Manus he was charged with murder under Section 300 (1) of the Criminal Code.

2.	He was subsequently allowed K500 bail by National Court Waigani on 21 August 2013 with strict reporting conditions. One of which was not to leave Lombrum Naval Base without leave of Court. Two guarantors were recorded. In his application now he seeks to vary and uplift clause 4 of the Bail: To remain at all times at Lombrum Naval Base and not to leave the place until further orders from this Court.

The Law

3.	Section 20 Variation of Bail states:

(1) Subject to Subsection (2), a person granted bail in relation to a proceeding or the other party to the proceeding may apply to a court at any time, after reasonable notice to the other party, for a variation of the terms and conditions of bail.

(2) An application under Subsection (1) shall be made to a court which has jurisdiction not lower than the jurisdiction of the court which granted bail.

4.	The first hurdle of bail variation application is easily made out with reasonable notice given to the other party or State in this matter. The second hurdle likewise is also met as the application is before a National Court. This section appears to be silent on the grounds on which such applications may be made however the tenor of the bail act appears to be grounded on reasonableness, satisfactory and exceptional circumstances. Upon meeting anyone of those three broad requirements, variation application may be granted.

5.	In your case the only reason in support of your application was the need to put you in a state of readiness in times of emergencies, for instance family concerns and or deaths and or if you are required to travel out of the jurisdiction on work related assignments. Another reason you advanced was the irregular sittings of National Court in Manus Province. 

6.	The State objected to your application on the grounds that your reasons were too general in nature and should therefore be refused. The State submitted that such urgent applications may also be made in Port Moresby should the need arises. This application was stood over to today to enable the court to be given a legible copy of the original bail order issued by Waigani National Court. I now have a near readable copy although the photocopying is not the best. In any event I noticed that the original bail was granted at National Court Waigani by His Honour Justice Kirriwom with strict mobility conditions within Lombrum Naval Base, Manus. I would presume that since the applicant was not Manus based the question of flight appeared real as he is from National Capital District. This is more so in view of the fact that the alleged charge of wilful murder was still pending.

7.	If I am to be guided by the grounds I referred to earlier i.e.; reasonableness, satisfactory and exceptional circumstances, I see none of those general grounds present in your application. No real urgency or exceptional circumstances were put before me which would warrant the grant of variation. The grounds relied upon in my view are frivolous and vexatious. This court is being asked to make variation orders based on a hypothetical situation. In my view Courts rarely grant orders under those situations. I agree with the State contention that if and when emergency situations do arise you can always go to National Court Waigani, i.e. if Manus National Court is not sitting and apply for variation. 

8.	My reading of Section 19 Bail Act (Guarantors) imposes certain conditions and obligations on guarantors. I note that the applicant has recorded two such guarantors and they obviously will have an interest in this bail variation application. It follows that it's incumbent on the applicant to seek their views as their interests will be greatly affected with any variations. There is no evidence showing that they have been consulted. I consider their omission in this variation application fatal.

9.	Section 21 (3) of the Bail Act (Revocation of bail) is mandatory in that where there is a guarantor for the person granted bail, a court shall not impose conditions of bail more onerous on the guarantor than the existing conditions of bail without first obtaining the consent of the guarantor. (Emphasis mine) Although this section address a different situation the need to seek the views of guarantors is equally important in variation applications, simply because their interests will also be affected.

10.	For the reasons discussed above I refuse the variation application. You are at liberty to apply for another variation should urgent circumstances present themselves.

Orders accordingly.
____________________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused