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Mange v State [2019] PGNC 53; N7769 (15 March 2019)

N7769

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 41 OF 2019

ANGAI MANGE

V

THE STATE

Waigani: Berrigan, J
2019: 15 March

DECISION ON BAIL APPLICATION

CRIMINAL LAW – PRACTICE AND PROCEDURE – application for bail following earlier refusal – Constitution s. 42(6), ss. 6 and 7 of the Bail Act, 1977 – change in relevant circumstances required – whether must also be material discussed - meaning of “interference” with witnesses considered.

Cases Cited:
Papua New Guinea Cases

Dokta Maip v The State (2011) N4242
Ewam v The State (2017) N6935
In Re Application for Bail by Bobby Selan (2009) N3690
Kuku Hayara & Anor v The State (2009) N3598
Maragau v The State (2016) N6280
Michael Philip v The State (2007) N3217
Ngotngot v The State (2016) N6377
Ning v The State (2013) N5378
Noah Karo v The State (2009) SC998
Parker v The State (2015) N6191
Re Bail Application by Bernard Uriap (2009) N3822
Re Bernard Uriap (2009) N3999
Re Thomas Markus (1999) N1931
Yausase v The State (2011) SC1112

Overseas Cases:

Ex parte Edwards [1989] 1 Qd R 139

References cited:

Sections 6, 7, 9(1)(c)(i), 9(1)(d), 9(1)(f) and 13(2) of the Bail Act, 1977
Section 300(1)(a) of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel:

Mr A. Ninkama, for the Applicant
Ms L. Jack, for the Respondent

RULING ON BAIL APPLICATION

15 March, 2019

1. BERRIGAN J: This is an application for bail pending committal. The applicant is charged with one count of murder contrary to s. 300(1)(a) of the Criminal Code (Ch. 262) (the Criminal Code). It is alleged that in May 2014, when the complainant, his wife, was between 7 and 8 months pregnant, the applicant seriously assaulted her stating that he intended to cause both her death and the death of the “unborn child”, suspecting it was not his. It is further alleged that a male child was subsequently born with medical issues on 31 June 2014 and continued to require treatment until he died, some 11 months following the assault, on 16 April 2015. The applicant was arrested and charged almost four years later on 19 February 2019. He has been in custody since.
   
2. Before proceeding to the application, it is necessary to consider a preliminary issue. A previous application to the National Court for bail was refused by His Honour Justice Manuhu on 27 February 2019. On that basis the State, respondent, submits that it is not now competent for the applicant to apply again to another judge of this Court.
   
3. The right to reapply for bail to the National Court is not expressly conferred by the Bail Act, 1977. Consequently, there has been a divergence of views on the issue. In support of its submission the State relies on Michael Philip v The State (2007) N3217 in which Gabi J held that once refused bail by a judge of the National Court a person may only apply for bail to the Supreme Court pursuant to s. 13(2) of the Bail Act. See also Kuku Hayara & Anor v The State (2009) N3598 and Dokta Maip v The State (2011) N4242.
   
4. The State also relies on Noah Karo v The State (2009) SC998. In that case, however, the Supreme Court was not concerned with determining the issue now before this Court, noting in fact at paragraph [4] of its judgement that there was some authority for the proposition that upon refusal, a further application for bail may be made to the same bail authority provided the applicant is able to establish a change of circumstances. The authority referred to is that of Re Thomas Markus (1999) N1931, in which Injia J (as he then was) held that the principle was derived from ss. 6 and 7 of the Bail Act, 1977.
   
5. It is useful here to set out the terms of ss. 6 and 7 which provide, respectively, that (emphasis added): “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”; and “where a person is in custody in connection with any proceedings, including proceedings for committal for trial or sentence in the National Court, the Court shall, on each occasion that it adjourns the proceedings before conviction, consider and accordingly grant or refuse bail to that person in accordance with Section 9”.
   
6. Thus it cannot be said that by virtue of the determination of an earlier application, the matter of bail becomes res judicata. In considering a similar issue in the Supreme Court of Queensland, McPherson J in Ex parte Edwards [1989] 1 Qd R 139 said:
   

“... that depends upon whether an application for bail is properly to be regarded as interlocutory only, or as finally determining the rights of the parties. A decision with respect to the custody of an infant does not partake of that character... but that ... is because the welfare of the infant is on such an application considered paramount. However, the liberty of the subject, which is the interest at stake in the grant or refusal of bail, can scarcely be regarded as of less importance.”

7. Those comments are particularly apposite to this jurisdiction given the imperatives contained in the Constitution. Per Cannings J in Re Bobby Selan, supra:
   

“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.”

8. Read together, ss. 6 and 7 provide that an application for bail may be made at any time after a person has been detained, and further that the issue of bail is one for ongoing consideration prior to conviction. Section 13(2) of the Bail Act does make particular provision for an application to the Supreme Court in the event of refusal but it cannot, in my view, impinge upon the effect of those provisions.
   
9. In Parker v The State (2015) N6191 Salika DCJ (as he then was) revisited his decision in Re: Bail Application by Bernard Uriap (2009) N3822 and expressed support for the approach taken in Re Thomas Markus (2009) N1931, bringing his position in line with Cannings J in Re Bobby Selan and Kariko J in Re Bernard Uriap (2009) N3999. Since then Re Thomas Markus has been adopted and applied in several cases including: Ning v The State (2013) N5378; Maragau v The State (2016) N6280; Ewam v The State (2017) N6935; and Ngotngot v The State (2016) N6377. It would appear that the weight of recent authority is now in line with Re Thomas Markus and for the reasons stated above, I also adopt that approach.
   
10. That is not to say that access to the Court is a “revolving door”. Per Injia J (as he then was):
    

“In considering whether there has been a change in circumstances, the change or changes in circumstances must be relevant. In determining what changes are relevant circumstances, it is necessary to re-visit the judge’s earlier reasons for refusing bail with reference to S.9(1) of the Bail Act. Any circumstances which did not form part of the reasons pertaining to the grounds upon which bail was refused under the criteria in S.9(1) is not a relevant circumstance for which the Court should re-consider its earlier decision to refuse bail. Indeed it would amount to abuse of process of the Court for a person refused bail by a judge of the National Court to re-apply for bail to the same judge or different judge of the National Court simply for the purpose of taking another bite at the same application before another judge, without providing evidence of any change in relevant circumstances or with evidence of change in irrelevant circumstances.”

11. In short, there must be a change of circumstances and the change in circumstances must relate to the grounds for refusal of bail under s. 9 of the Bail Act in the first application: Re Bobby Selan applying Re Thomas Markus. It also appears now well established that it is incumbent on an applicant who has earlier been refused bail to: notify the Court of the earlier refusal; provide the Court with a copy of the reasons for refusing bail; present evidence of a change in circumstances; and show how the change is relevant: Re Bobby Selan applied Re Bernard Uriap (2009) N3999.
    
12. To give effect to the decision in Re Thomas Markus it appears to me that the change must also be material such that it warrants reconsideration of the earlier decision to refuse bail. That will obviously be a matter for determination on a case by case basis.
    
13. Returning to the present application. A transcript of his Honour’s decision is not available but the certificate of refusal states that the bail authority was satisfied that: the alleged offence concerned a serious assault; the applicant is likely to commit an indictable offence if not in custody; and the applicant is likely to interfere with witnesses or with the person who instituted the proceedings, pursuant to ss. 9(1)(c)(i), 9(1)(d) and 9(1)(f) of the Bail Act, respectively.
    
14. The applicant submits that there has been a change in circumstances since the initial refusal of bail as a result of the complainant’s conduct. He says that the day after the initial application the complainant visited him at Boroko Police Station where she told him that she would withdraw the case against him if he compensated her for abandoning her and the children for the past 4 years. He agreed to give her his bank card on the basis she take K1000. She subsequently took K1900. Following that meeting, he continued to communicate with the complainant on a daily basis, principally regarding her demand for him to apologise and to compensate herself and her relatives a sum of K300,000 following which she would withdraw the case. He refused on the basis he had done nothing wrong but indicated he would pay K10,000.
    
15. The applicant says that this constitutes a change in circumstances that is relevant to the decision by the previous bail authority that he was likely to interfere with witnesses. It is submitted that the fact that the discussions were conducted behind closed doors, in a civilised manner, demonstrates that the applicant is not likely to interfere with witnesses or the complainant in this matter.
    
16. I cannot agree. Whilst the information is highly relevant to the issue of interference, it does not show that the applicant is not likely to interfere with the complainant. Quite the contrary. The applicant’s submission seems to assume that interference with a witness must necessarily involve violence or aggression. That is not the case. Interference is anything that is likely to prevent a witness from giving evidence or influence the evidence they might otherwise give. It may take various forms including violence, direct and veiled threats or intimidation, bribery, or economic or emotional pressure. In some cases interference may be of such an insidious nature that witnesses will not by that reason complain of it. This may be particularly so within the family setting. On the complainant’s own evidence in this case he is now in regular discussions with the complainant, providing her with money for the first time in 4 years and willing to pay K10,000 - he says as an apology for abandoning her but with the clear expectation that the matter will be withdrawn. Those matters would clearly constitute interference in my view.
    
17. It must be made clear, however, that the State disputes the applicant’s version and there is evidence that the applicant has threatened the complainant and that she remains in fear for her life. According to the investigating officer a further complaint was made by the complainant on 8 March 2019 alleging that the applicant threatened to kill her when he gets out of custody. A recent affidavit from the complainant’s biological uncle deposes to the applicant’s propensity for violence against the complainant.
    
18. In the circumstances I am not satisfied that there has been a change of circumstances on which his Honour refused bail pursuant to ss. 9(1)(d) and (f) of the Bail Act.
    
19. The applicant also relies on a further three affidavits all of which are directed to showing that the child died of natural causes and that the allegation has been fabricated by the complainant. These include affidavits from the complainant’s own mother and stepfather, the latter alleging the complainant asked him to make a false statement to police. An undated statement from the complainant suggests that there may be some estrangement between herself and her stepfather. A further affidavit from the applicant’s brother denies he ever told the complainant to “stop talking” because “the matter was a family matter” or threatened that there would be war between his people and hers if she did not withdraw the complaint. A statement from the complainant’s uncle says that there is tension and the potential for violence on both sides.
    
20. In my view there is no change of circumstances demonstrated on this evidence. There are affidavits and counter statements but in any event the evidence would have been available at the time of the earlier application. Moreover, it is well established in this jurisdiction that as a general rule, the innocence of the applicant is not before the Court in considering bail. An exception may apply where it appears that an applicant had been charged without any proper legal basis: Yausase v The State (2011) SC1112. In my view that is not the case here. Whilst it is clear that the allegation in this case will be highly contested for numerous reasons including as to the complainant’s credibility and the cause of death, those are not matters currently before this Court.
    
21. The application is refused.
    

Orders accordingly.

_________________________________________________________
Ninkama Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyer for the Respondent