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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
BA NO. 817 OF 2023
IN THE MATTER OF AN APPLICATION FOR BAIL pursuant to Section 13 (4) of the Bail Act 1974.
BETWEEN:
NIGE KAUPA
Applicant
AND:
THE STATE
Respondent
WAIGANI: NUMAPO J
15 DECEMBER 2025
CRIMINAL LAW – Bail Application – Right to Bail s.42(6) Constitution – Further bail application after refusal s.13(4) – Bail is not readily available for wilful murder – Prolonged detention may be a ground to seek bail but not a sole determining factor - Applicant must show exceptional circumstances – Applicant must show change of circumstances in subsequent bail applications – Applicant is at liberty to raise other grounds for consideration as well -Bail is a discretionary matter - Bail granted with conditions.
Held:
(i) A person charged with an offence is entitled to bail at any stage from arrest to detention.
(ii) The presumption on the right of bail does not equally apply to wilful murder.
(iii) Applicant must show exceptional circumstances for the Court to exercise its discretion in his favour.
(iv) Prolonged detention is a relevant consideration in the applicant’s favour but not the sole determining factor.
(v) Applicant must demonstrate change of circumstances in subsequent bail applications.
(vi) Court should not restrict or limit itself to consideration of change in circumstances in subsequent bail applications but also other relevant considerations that may be peculiar to the case itself.
(vii) Bail is granted with conditions.
Cases cited
David James George v The State CR (AP) No. 883 [2017] N7230
Fred Keating v The State [1983] PNGLR 131
Kuo Dua v The State (1984) PNGLR 22
John Peng v The State (2010) N4134
Thomas Markus v The State (1999) N1931
Bobby Selan v The State (2009) N3690
Bernard Uriap v The State (2009) N3999
Justin Parker v The State (2015) N6191
Angai Mange v The State (2019) N7769
Counsel
F. Kuvi for the applicant
L. Kombe for the State
DECISION
1. NUMAPO J: This is a ruling on a bail application brought pursuant to section 13 (4) of the Bail Act. Applicant was charged with one count of Wilful Murder under Section 299 (1) of the Criminal Code for allegedly murdering his wife, Maryanne Maxton Pandan on the 20th May 2023 at Kennedy Estate, 8 Mile, National Capital District.
2. Applicant’s first bail application made pursuant to sections 4 and 6 of the Bail Act and section 42 (6) of the Constitution on the 15th of April 2025 was refused by the National Court. This is his second attempt at bail. He has already been committed to stand trial before the National Court and has appeared for mention.
3. In his first bail application, the National Court refused bail on two grounds; firstly, the offence with which he was charged with consists of a serious assault and a threat of violence to another person – s. 9 (1) (c), (i) & (ii) and secondly, the likelihood of him interfering with witnesses or with the person who instituted the proceedings – s. 9 (f) of the Bail Act. A Certificate of Refusal showed these two grounds as the basis for refusal. There was no written decision provided for refusing bail.
4. Generally, a person charged with an offence is entitled to bail at all times - section 42 (6) of the Constitution except for wilful murder and treason where the right to bail is not readily available unless the applicant can show exceptional circumstances and the court may consider to grant or refuse bail. The onus is on the applicant to show by way of appropriate evidence the exceptional circumstances that do not justify his continued detention. See; Re: Fred Keating v The State [1983] PNGLR 131; Kuo Dua v The State (1984) PMHLR 22; Bernard Juale v The State (1999) N1887 and John Peng v The State (2010) N4134.
5. Bail can be made at any time pursuant to section 6 of the Bail Act. The National or Supreme Court may grant bail in certain cases pursuant to section 4 of the Bail Act.
6. To show exceptional circumstances the applicant must by appropriate evidence show that prolonged detention is adverse to his health and wellbeing and that it would deny him the opportunity to adequately prepare his defence. He ought to also show that prolonged detention would put his social activities and his family’s welfare, employment or business engagement in jeopardy. These are matters relevant for consideration. See David James George v The State [2017] N7230 and Re: Malakai Kongo & Joe Akusi v The State (1996) N1544.
7. Applicant decided to make this bail application again before the National Court after his previous bail application was refused. When bail is refused by the National Court, the applicant is entitled to apply for bail, immediately, if he so desire, to the Supreme Court- s.13 (2) of the Bail Act. It appears that the applicant had decided not to apply to the Supreme Court for bail but to try his luck again at the National Court.
8. Section 13 of the Bail Act deals with subsequent application for bail if the first application is refused. There are two schools of thought regarding this provision. The first is that, a person refused bail by the National Court should apply to the Supreme Court for bail if he wish to seek bail. This is provided for under s. 13 (2) of the Bail Act. The second school of thought is reflected under s. 13 (4) of the Bail Act which states that bail can be brought before the same court if it can be shown that circumstances have changed since the first refusal. See: Thomas Markus v The State (1999) N1931; Bobby Selan v The State (2009) N3690; Bernard Uriap v The State (2009) N3999; Justin Parker v The State (2015) N6191 and Angai Mange v The State (2019) N7769.
9. Applicant invoked s. 13(4) of the Bail Act to apply for bail again at the National Court. It requires the applicant to show a change in circumstances and that change must be related to the grounds upon which the earlier application was refused. Applicant must show by relevant evidence the change of circumstances since the first refusal. The change must be material that it warrants reconsideration of the earlier decision to refuse bail. See; Re: Thomas Markus v The State (1999) N1931; Re: Bobby Selan v The State (2009) N3690; Justin Parker v The State (2015) N6191 and Bernard Uriap v The State (2009) N3999.
10. The relevant principles concerning fresh applications for bail before the same court are set out succinctly by Kariko J in Re: Bernard Uriap (supra) adopting the earlier decision of Re: Thomas Markus and Re: Bobby Selan (supra) the following:
(i) The applicant must show there has been a change in circumstances; and,
(ii) The change in circumstance must relate to the grounds for refusal of bail under Section 9 (1) of the Bail Act in the first application.
11. His Honour went on further to say that the applicant must meet four (4) requirements:
(i) Notify the Court of the earlier refusal
(ii) Provide copy of the reason for the earlier refusal of bail
(iii) Present evidence of change in circumstances, and
(iv) Demonstrate how the change is relevant.
12. In this present application, the applicant told the court that he does not have anything to show in relation to the circumstances and whether or not it had changed since his last application because the ground goes to the truth or otherwise of the alleged offence and all he can say is that he denied those allegations. He is not able to show any change of circumstances unless the State decides to charge him with something other than what he is currently charged with. The core elements of the charge remains the same and therefore, there is no change in circumstances. Furthermore, except for the Certificate of Refusal of Bail, he does not have a written decision on the refusal by the court of his first bail application and therefore, not able to provide a copy.
(a) Prolonged Detention
13. Applicant raised prolonged detention to seek bail. He has been in custody for two (2) years and ten (10) months since his arrest and detention. He relied on his own affidavit and the affidavit in support from his mother in-law Daisy Pandan Aisa, the mother of the deceased and the grandmother of the applicant’s four children.
14. Applicant submitted that his prolonged detention would jeopardize the preparation of his defence. He has already been committed to stand trial and has appeared once before the National Court already for mention but there is no clear indication from the court as to when his pre-trial hearing will be held and a trial date fixed for the hearing of his case. Prolonged detention is a relevant consideration in applicant’s favour, but not the sole determining factor. See: Malaki Kongo & Joe Akusi (supra). Prolonged detention is a relevant consideration in support of a bail application but not the basis upon which bail may be granted. Applicant must show how prolonged detention might for example; deny him the opportunity to properly prepare and defend himself, or that his health has suffered or likely to suffer or that his family’s welfare and wellbeing is affected as a result of his continued detention. And unless the applicant establishes the adverse effects of his prolong detention, it alone is not a strong determining factor for a successful bail application. See: Paul Guant v The State (2009) N3576 and David James George (supra).
15. In his affidavit, the applicant stated that he was committed to stand trial on the 20th of February 2024. It would have been over one (1) year and eight (8) months to this day that he was committed. He appeared before the National Court for mention on the 6th of May 2025. The matter was further adjourned to September 2025 but was never listed. He only made one appearance. There is no indication from the court as to when his case might be listed again. There is a lot of uncertainty on when he might next appear in court. He is very fearful that he might be held in custody for longer than necessary given all these uncertainties. He has his constitutional right to an expedient hearing.
(a) Interfering with Witnesses
16. With respect to interfering with witnesses or the person who instituted the proceedings, the applicant stated that he is able to show a change in circumstances regarding this. Two of the State witnesses are his own children and they all lived together in the same family house at Kennedy Estate when the incident happened. Both are no longer living there and have been taken away by their aunt and are now living with her at Tokarara. Their chances of coming into contact with him is very minimal. He has not seen or communicate with them for sometimes now.
17. Secondly, the police have already completed all their investigations relating to his case. The Police Hand Up Briefs have been completed and filed before the court. Witnesses required to give evidence have already done so and have given their statements to the police. All evidence against him have been collected. He appeared before the Committal Court and has been committed to stand trial in the National Court based on the strength and sufficiency of the evidence. He does not have any reason at all to interfere with the witnesses. For this reason, the applicant ask that he be granted bail.
(b) Exceptional Circumstances
18. The applicant is required to show exceptional circumstances that do not justify his continued detention. The Bail Act does not defined what constitutes exceptional circumstances nor does any other law. Generally, exceptional circumstances are peculiar considerations and are inferred from the circumstances of each individual cases on a case by case basis. Some of these considerations are set out above. It might relate to one’s health, employment, family welfare, property and business etc. These interests might be affected if he continues to remain in custody. The onus is on the applicant to show that these exceptional circumstances makes his continued detention unjustified.
19. It has been said however, that the loss of employment and the effect it has on the family or business engagements are not exceptional circumstances and peculiar to the case. This is expected of anyone detained in custody. These are consequences suffered as a result of been arrested. One’s rights of enjoyment to all these privileges are suspended; David James George (supra).
20. It requires balancing the interest of the individual against the interest of the society and decide whether or not bail should be granted in the exercise of a discretion.
(c) Other Considerations
21. There are also other considerations worth considering for the purposes of bail applications in general apart from the change in circumstances especially, relating to subsequent bail applications. In my respectful opinion, the court should not restrict or limit itself to only considering the change in circumstance to grant bail after the refusal of the first bail application. Considerations such as; the completion of the police investigation, the preparation and completion of the police files (Police Hand Up Briefs), the filing of committal depositions and the applicant’s committal to stand trial before the National Court are all matters relevant for considerations. The court must consider all the considerations in its entirety and decide bail in the interest of justice.
22. I consider these grounds to be sufficient on their own to seek bail in the absence of a change in circumstances. And if they are sufficiently pleaded, it should be enough to grant bail. The applicant is at liberty to raise any other grounds without restricting or limiting himself solely on the ground of change in circumstances.
23. Furthermore, it is not a requirement of law under section 13 (4) of the Bail Act to show the change in circumstances to be granted bail. Prolonged detention, exceptional circumstances and change in circumstances are principles of law developed through case laws that an applicant can rely on to seek bail. They are not dictates of law.
(d) Judicial Discretion
24. Bail is determined at the discretion of the court. Section 42 (6) of the Constitution and sections 3, 4 and 6 of the Bail Act gives the court the discretion to grant bail in proper cases. The judicial discretion to grant bail is also available under ss. 10, 11 and 12 of the Bail Act. It goes to show that bail is a right under the law, even for those found guilty and convicted. Bail is available at all times from the time of the arrest and detention up to conviction and before sentencing.
25. There are differing views expressed in the case laws in relation to the exercise of discretion. One view is that if one or more grounds under s.9 (1) of the Bail Act are raised, it removes the discretion to grant bail because these grounds are the dictates of the law. The other view is that, it is not. Even if section 9 (1) grounds are raised, the bail authority still has the discretion to grant bail if exceptional circumstance can be shown. It is not automatic that bail must be refused. Each case must be determined on its own merits and there is a discretion to grant or refuse bail in every case; Re: Fred Keating (supra). Grounds under s.9 (1) does not automatically operate as a bar to the grant of the bail. The court does have a discretion to decide whether or not to grant bail having regard to the particular circumstances of each case and in the interest of justice. The court still has an over and above discretion to grant bail even if grounds under s.9 (1) of the Bail Act are present.
26. Kirriwom J (as he then was) in Bernard Juale v The State (1999) N1887 held that if one or more grounds under s.9 (1) are established, it does not remove the discretion of the bail authority to grant bail. There is always the exceptional circumstances in the particular case that would warrant bail even in wilful murder cases. Each case must be decided on its own peculiar circumstances. Section 42 (6) of the Constitution does not deny bail to a person charged with wilful murder or treason. It avails bail to all persons except those charged with wilful murder and treason. This means that bail is not automatically available to those charged with wilful murder or treason but the person still has the right to seek bail through other avenues. That avenue is provided for under ss.4 and 6 of the Bail Act. The court in its discretion can grant or refuse bail.
27. Batari AJ (as he then was) in Kongo & Akusi v The State (supra) held that; “Although the provision of s.9(1) has been established, there is a discretion in the court to grant bail. The onus is on the applicants to show why their detention in custody is not justified.”
28. The existence of any of the grounds under s.9 (1) does not automatically operate as a bar to the grant of bail. There is still the discretion of the court to decide whether to grant or refuse bail.
29. It became clear to me that there is no change in the circumstances since the applicant’s last bail application was refused. Applicant has nothing substantive to show in terms of his circumstances and whether or not it has changed. If I am to take a restrictive view, his bail application would be dismissed on the ground that he has not shown a change in circumstances.
30. The applicant has however, set out in detail his personal circumstances in his affidavit. He relied on them to seek bail. He asked the court to consider them.
31. In his affidavit, the applicant stated that he was married to the deceased and have four (4) children. The eldest child is 14 years old and the younger child is only 5 years old. They lived at Kennedy Estate in NCD. He purchased the property for K550, 000.00 through a bank loan. The property is currently mortgaged to the bank until he pays off his loan. He is repaying the loan at the rate of K1, 000.00 per fortnight. The last re-payment he made was in June 2025 for a sum of K5000.00. Since then he has not made any repayments up to now because he was in custody. His incarceration has made it impossible for him to keep up with his loan repayments. He is fearful of losing the property. He wants to get out on bail to make alternative arrangements with the bank to pay off his mortgage.
31. His children are scattered all over the place and were being looked after by relatives when he was taken into custody. Two of his older children are with their aunt at Tokarara and the two younger children are looked after by his other relatives at Kennedy Estate. They are not attending school at the moment.
32. Applicant is a University graduate and highly educated. He has held senior positions with the Australian Department of Foreign Affairs (DFAT) and most recently as First Secretary to the Minister for Petroleum & Energy.
33. To restore peace and harmony, he has paid a sum of K94, 000.00 cash as compensation or “bel kol” money to the relatives of the deceased with the help of his relatives. As far as he is concerned, there is no ill-feelings and animosity between his relatives and the relatives of the deceased. The deceased is his wife. His wife’s family are in support of him been granted bail. The mother of his late wife (mother in-law) Mrs. Daisy Pandan Aisa has deposed an affidavit in support of his bail application.
34. In her affidavit, Mrs. Daisy Pandan Aisa stated that she is the biological mother of the deceased Maryanne Maxton Pandan. Her husband had passed away and she is a widow.
35. On the 20th of May 2023 the incident happened and her daughter lost her life. Since her son in-law was arrested and taken into custody, she has been looking after her grandchildren. She is concerned with the welfare and well-being of her grandchildren. She is finding it difficult to financially support and provide for them. The relatives have all chipped in to help but it is becoming difficult to continue to provide support to them.
36. The children are still living at the family house at Kennedy Estate, 8 Mile. Her son in-law bought the house with a bank loan and is currently re-paying the loan through salary deductions fortnightly but repayment has stopped when he was taken into custody. If he continues to default on his repayment, the bank will reposes the property. The family will have no place to live. Mrs. Aisa strongly urged the court to grant bail to the applicant.
37. Having considered the application, I am satisfied that this bail application before me warrants a re-consideration. I will depart from the traditionally held view that to be granted bail in subsequent bail applications, the applicant must show a change in circumstances after his first application was refused; (Bernard Uriap and Bobby Selan (supra)). These are not the dictates of the law but rather principles developed through case laws. I am not bound by these principles.
38. In this current bail application, what stood out, is the applicant’s personal circumstances and the prolonged detention. I am satisfied with the evidence provided through his own affidavit and the supporting affidavit of his mother in-law that there exists exceptional circumstances that in my considered opinion, do not justify his continued detention.
39. I also take into account the fact that the police files on his case have been completed. All the necessary evidence have been collected and collated and presented to the court. He was committed to stand trial in the National Court on the strength of the evidence contained in the police files. There is no more evidence to be collected. And he has already appeared before the National Court for mention.
40. In addition, I considered the applicant as a well-grounded family man. He has a good job, stable income and a man of good standing in the community until he committed the offence and was arrested. His two guarantors spoke highly of him and each pledged K500 surety fee towards his bail. I do not consider him a flight risk and there is no reason for me to think that he might abscond bail. He has a permanent address in NCD and resides there. The bail conditions set are stringent. If he defaulted, he risk having his bail revoked. He is well aware of that.
(i) Application for bail is granted.
(ii) Applicant to pay a cash bail of K2000.00
(iii) Two guarantors shall each pledge a sum of K500 each as surety towards the bail.
(iv) Bail conditions imposed.
Orders accordingly
________________________________________________________________
Lawyers for the applicant: Kuvi & Associates
Lawyer for the State: Public Prosecutor
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URL: http://www.paclii.org/pg/cases/PGNC/2025/524.html