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Aika v Uremany [1976] PNGLR 46 (9 February 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 46 - Paul Aika v Uremany 

[1976] PNGLR 46

SC91

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PAUL AIKA AND OTHERS

V

CASPAR UREMANY

Port Moresby

Prentice DCJ Raine Williams JJ

16 December 1975

9 February 1976

CRIMINAL LAW - Practice and procedure - Bail applications - After conviction - Conviction under Local Courts Act - Successive applications on same material not permitted on application under s. 45 of the Local Courts Act 1963.

Held

That an application for bail where the applicant for bail has been convicted by a court and is seeking release on bail pending the hearing of the appeal, and made under s. 45 of the Local Courts Act 1963, which provides that a judge may in his discretion admit the defendant to bail, having been heard by a judge of the National Court and refused, another judge of the National Court has no jurisdiction to hear and determine a further application for bail on the same grounds.

R. v. Weichart, [1903] W.A.L.R. 105 referred to.

Discussion of the common law authorities by Prentice Dep. C. J. (dissenting).

Reference

This was a reference by the Chief Justice of the question whether, when bail has been refused by one judge of the National Court, another judge thereof has jurisdiction to hear and determine a further application for bail on the same grounds. The particular circumstances out of which the question arose are outlined in the reason for judgment of Prentice Dep. C.J.

Counsel

CF Wall for the appellants

KB Egan for the respondent

Cur. adv. vult.

9 February 1976

PRENTICE DCJ:  The applicants were convicted in the Local Court at Bereina of various offences, and were sentenced on 17th October, 1975 to imprisonment for four months. They appealed to the National Court on 17th November, 1975 and on the same day applied for bail pending appeal. The application for bail was made under s. 45 of the Local Courts Act. The substantial ground for seeking bail appears to have been that their sentences would have been served in full before their appeals were heard.

The State Prosecutor was represented on the bail application, and was prepared to agree in it. But his Honour the motion judge, on a full consideration of the circumstances, decided bail should be refused. The applicants, instead of then asking for an immediate or at least accelerated, hearing of the appeal, decided to approach another judge to whom to make a further application for bail on the identical material. At this stage the prosecution objected to this course being permitted. The Chief Justice was asked to, and agreed to, refer to this Court the question of whether when bail has been refused by one judge of the National Court, another judge thereof has jurisdiction to hear and determine a further application for bail on the same grounds. Pending the hearing of the reference, his Honour the Chief Justice admitted each appellant to bail.

At the time this judgment is being handed down, the appeal, quite inexplicably, has not been heard, though a judge was available throughout January. The appellants have been on bail some twelve weeks, after having been in custody for one month of a four months’ sentence. This seems to me to be a very unsatisfactory state of affairs and likely to bring law enforcement into contempt.

In this Court the prosecution has conceded that there ought to be jurisdiction at least to go to another judge of the National Court on a bail application, if further grounds become available after an initial application is refused. But he contends that the long line of authorities suggesting that a bail application may go from judge to judge of a court (without the res judicata rule applying), though admittedly with perhaps small chance of success, were each decided per incuriam. The law relating to habeas corpus, as laid down in recent applications in the U.K., is that, he says, which should be followed.

The list of authorities supporting the course adopted by the applicants’ counsel is formidable.

In New South Wales; it begins with Reg. v. Fraser and Jacobs[xxx]¹ wherein the Full Court, hearing de novo an application for bail which had been refused by the trial judge after a jury disagreement, agreed that “a separate application might have been made to each judge of the Supreme Court one after the other”. The learned author of Hamilton & Addison Criminal Law & Procedure (Weigall Q.C.) adopted this as correctly stating the law (5th ed. p. 340). In 1895, the Full Court of New South Wales again stated (in regard to habeas corpus):

“the law has always been that a person seeking this writ may go from Court to Court or from Judge to Judge, and that each Court or Judge must consider the application without reference to any previous decision in the matter. It would require very strong language in a statute to induce us to hold that this right has been taken away, ...” (Ex parte Elizabeth Rowlands)[xxxi]² — Counsel had relied therein on Cox v. Hakes[xxxii]³).

In 1961, Richardson J. after refusing a bail application, in New South Wales, declined to refer the matter to the Full Court stating:

“for if an application for bail be refused by one judge the prisoner is not thereby precluded from making a fresh application to another judge or to the Court ...” (R. v. Higgs[xxxiii]⁴).

In Reg. v. Fernon[xxxiv]⁵ Moffitt J., as he then was, entertained a bail application following a jury disagreement, after bail had been refused by two chairmen of Quarter Sessions and a judge of the Supreme Court successively, and stated:

“It has been usual to admit the right of a person in custody to make application for bail to different judges ...” (at p. 645).

In Reg. v. Pascoe[xxxv]⁶ Jacobs J. granted bail after it had been refused by Manning J. on substantially similar material, but after a lapse of considerable time. As late as 1969, McClemens J. of the New South Wales Supreme Court in a paper delivered to the Institute of Criminology Seminar on Bail, was able to say:

“The dismissal of a bail application does not prevent an application even on the same material (a fortiori on different material) to another judge. The applicant can go from judge to judge in the hope that he may get a more favourable reception from someone else” (citing Pascoe’s case[xxxvi]⁷ and Higgs’ case[xxxvii]⁸).

That was the law as understood and taught at Sydney University Law School to my knowledge in the thirties — a convention being added that it was the advocate’s duty to recount to each successive judge the refusals he had hitherto met with. (And see the reference to the submissions of Mr. Barwick, as he then was, in Williams’ case[xxxviii]⁹ cited later herein).

In Queensland; in R. v. Malone[xxxix]¹⁰ the Full Court entertained a reference by the Chief Justice similar to the instant one, as to whether he might grant bail when a brother judge had refused it. The Court stated:

“We think that, assuming s. 10 of The Judicature Act gives an appeal to the Full Court from an order of a judge granting or refusing bail, still the existence of that right does not interfere with the independent right of a person who is detained in custody to apply for bail to a judge, and if refused by one judge, to apply to another. The application for bail by summons is in substitution for the old mode of making application for habeas corpus, and the courts in England, in administering the law in relation to that writ, have always held that an applicant for a writ may go to one court after another, and that no court was bound by the view taken by any other. We do not think that the right to apply to each of the judges in succession has been altered by s. 10 of The Judicature Act. The Criminal Code s. 555 appears to recognize the same principle.”

In Victoria; in R. v. Greenham [xl]¹¹; the Chief Justice, apparently in reliance upon such a procedural principle, but without discussion of the power he was purporting to exercise granted bail to an accused person who had been refused bail by a chairman of Quarter Sessions.

In the U.K.; Ex parte Partington[xli]¹² a case decided in 1845, was one in which habeas corpus was sought successively from the Court of Queens Bench, from the Lord Chief Baron in chambers, and finally from Baron Parke and the other Barons sitting in banc in the Court of Exchequer. In refusing the application Parke B. stated:

“The defendant however has a right to the opinion of every Court as to the propriety of his imprisonment.”

The fact that the Chief Baron therein interpolated during argument, after the counsel’s use of the phrase “from court to court”, the phrase “and indeed from judge to judge”, without comment from counsel; goes a long way towards convincing me that such may well have been the firm opinion of the courts in 1845.

In Ex parte Chapple[xlii]¹³ the Court of Appeal, while holding that it had no jurisdiction to hear an appeal from a refusal of a Divisional Court to grant habeas corpus, as a criminal matter was involved, stated:

“Habeas corpus applications are now made to the Divisional Court. Applications can be made to other Judges of the High Court if one or more refuse.” (Somervell L.J. at p. 933).

And Lord Justice Denning, as he then was, referring to the position under s. 10 of the Habeas Corpus Act of 1679 declared as to the 17th century that:

“If any court or judge refused to issue it, the applicant had no right of appeal to a higher court, but he could go from court to court and from judge to judge without being met by a plea of res judicata”,

and his Lordship continued:

“The only remedy of the subject” (being refused the writ in a criminal matter) “is to go to another Divisional Court or another judge and hope to persuade someone to take a different view — not, as a rule, a very likely endeavour.”

His Lordship propounded the same view of the law in his pamphlet “Freedom Under the Law” (p. 8).

The only Australian cases cited which appear to throw doubt on the availability of recourse successively to judges of a court upon the same material, are R. v. Weichart[xliii]¹⁴ and Ex parte Williams [xliv]¹⁵. In the former case, the statutory discretion under s. 667 of the W.A. Criminal Code to grant bail pending a reference, having been once exercised by the trial judge by way of refusal of bail, the Full Court held itself disentitled to hear the matter de novo. In the latter case, Halse Rogers J. in New South Wales, was moved for habeas corpus following a refusal by Davidson J. of the same Court earlier the same day. The application was made on some of the original grounds, and on further grounds. In refusing the application, Halse Rogers J., stated that Mr. Barwick (as he then was):

“claimed that under the common law he has a right to apply for a rule to another Judge even after the matter has already been heard and determined by a Judge of the Court. The authorities that he cited show that applications have from time to time been made to several Courts in England, but there is no clear authority that where the Court has once decided the matter on any specific grounds the applicant can be heard to raise these grounds again before another Court; there is certainly no authority for the suggestion that the same grounds may be raised before the same Court differently constituted.”

There is no indication whether the decisions of the Full Court of his own Court were cited to his Honour.

In New Zealand however, in Ex parte Bouvy (No. 2)[xlv]¹⁶ the Court of Appeal held that a decision having been given on a habeas corpus application by a single judge, became a decision of the Court, and the Court in banc could not again be moved on the same material.

The British Columbia Court of Appeal held in 1923 that as all courts there are now merged in one, there is no right in the Province to go from judge to judge seeking habeas corpus, the true rule formerly being that an applicant could go from court to court, Re Loo Len (No. 2)[xlvi]¹⁷; which decision seems to have been contrary to the previous practice of that Court (see the dissenting judgment of McPhillips J.A. at p. 918), and apparently was not followed in R. v. Gee Dew[xlvii]¹⁸ and R. v. Ciminelli (No. 1)[xlviii]¹⁹.

The highwater mark of the decisions to the effect that successive applications in habeas corpus may be made to judges of the one Court is Eshugbayi Eleko’s case[xlix]²⁰ in which the opinion of the Privy Council was sought on appeal from the Supreme Court of Nigeria. Their Lordships were not able to find any precedent prior to 1873 of applications having been made to individual judges successively of the one Court, but pointed out that all the judges of each court usually sat then in banc. They found precedent in Ex parte Partington[l]²¹ for an applicant going from a judge of the Exchequer sitting in chambers to the Court of Exchequer. Their Lordships analysed the effect of the combination of the old Common Law and Chancery Courts in one High Court of Justice by the Judicature Act of 1873, but were reluctant to come to the conclusion that an applicant henceforth should be restricted to one application. It was conceded that in vacation successive applications might be made to individual judges. The Council’s opinion was that each judge of the Court in England was still vested with jurisdiction both in term-time and vacation, to hear such an application, and that the same principle must apply to each of the judges in Nigeria.

However, in the Irish Free State, in the case of State v. Kingston (No. 2)[li]²² Fitzgibbon J. with whom Sullivan C.J. agreed, analysed the history of habeas corpus applications and came to the firm conclusion that no right had ever existed to go from judge to judge of a court as distinct from the right to go from court to court, except perhaps in vacation (at pp. 38 to 46).

Thereafter, the pronouncements of Lord Hailsham in Eshugbayi Eleko’s case[lii]²³, of Lord Halsbury in Cox v. Hakes [liii]²⁴, and of Lord Denning, were canvassed by a Divisional Court (Parker C.J., Hilbery and Diplock L.JJ.) in In re Hastings (No. 2)[liv]²⁵. Adopting Fitzgibbon J’.s analysis in Kingston’s case[lv]²⁶ the Court expressed itself satisfied that the dicta in Ex parte Partington [lvi]²⁷, in Re Cobbet [lvii]²⁸, and of Lord Hailsham in Cox v. Hakes,[lviii]²⁹ ought not to be taken as indicating that there was ever a right to go from judge to judge (except in vacation), but only (pre-Judicature Act) to go from court to court. It held expressly that once a decision of a Divisional Court were taken, no further application on the same grounds could be made to a Divisional Court of the same division — but left open the question of an applicant’s right to go from judge to judge in view of the Privy Council’s decision, and also those of Canadian and Australian Courts. Re Hastings (No. 3)[lix]³⁰ applied the decision to a further stage by holding that a decision of a Divisional Court of the Queens Bench Division precluded a further application to a Divisional Court of the Chancery Division. Re Hastings (No. 3)[lx]³¹ was applied by Lord Gardiner L.C. to an application brought before him in his capacity as Lord Chancellor sitting in the Moses Room of the House of Lords in Re Kray, Re Smith[lxi]³².

In view of the apparent opinion of the judges in 1845, one hesitates to assume that the last word has yet been said on the subject in the United Kingdom, although the opportunities for such successive applications seem to have been almost completely curtailed by the Administration of Justice Act 1960 (U.K.). The effect of the United Kingdom decisions seems to be a declaration as at 1965 that there had never in the United Kingdom been a right under the Common Law to go from judge to judge (as distinct from court to court) seeking habeas corpus, except in vacation; though there was a right to go from court to court — which right ceased as from the amalgamation effected by the Judicature Act 1873.

I ask myself, if this were the common law of the United Kingdom, though it has been altered by statutory enactments such as the Judicature Act of 1873 and the Administration of Justice Act 1960; is it applicable in independent Papua New Guinea under the Constitution and if so, how is it to be applied to the court structure here? It is also necessary, I think, to consider whether the law under habeas corpus applications is that applicable to bail applications brought in pursuance not of a common law but of a statutory right, after conviction and pending appeal.

I note that s. 45 of the Local Courts Act states “a judge may, in his discretion, admit the defendant to bail”. It does not state “an application may be made to a judge ...”. I consider the words used do not of themselves import a restriction of the right to apply to the making of one application only.

CAN THE APPLICATIONS FOR HABEAS CORPUS AND FOR BAIL PENDING APPEAL BE DISTINGUISHED?

One appreciates that a habeas corpus application has as its basis the direct inquiry as to whether a person is properly detained. A bail application on the other hand is usually a request for the exercise of the discretion of a court in favour of a person immediately and properly detained. In an application under s. 45 of the Local Courts Act there would be in the first instance, I consider a presumption of correctitude of decision that must be displaced; and substantial miscarriage of justice would require demonstration on the appeal itself. I pause to say, that as at present advised, I would be unable to agree with Mr. Wall’s argument that the principles to be applied to a non-convicted person seeking bail are identical to those applying to a convicted person so applying while awaiting determination of appeal.

Habeas corpus applications would not always have the element of instant urgency that bail applications pending trial or appeal, might have. The latter frequently depend on argument that prejudice would result to the preparation of a defence, or in an applicant having served the whole of a sentence imposed before appeal was heard.

I note, however, that in Kray’s case[lxii]³³, a bail application, the Lord Chancellor did not seek to distinguish the procedures in habeas corpus applications, and for myself, I am unable to come to the conclusion that there should be any difference of approach in a habeas corpus application on the one hand, and a bail application on the other, which makes the habeas corpus decisions as to jurisdiction, in successive applications inapplicable to motions under s. 45 of the Local Courts Act for bail. Different considerations would, of course, come into the scale in the making of decisions.

DOES THE PAPUA NEW GUINEA COURT STRUCTURE REQUIRE THE APPLICATION OF U.K. PROCEDURES?

The State Prosecutor contends that though the National Court consists of up to eight judges, insofar as no provision is made for its sitting in banc, its opinion can be sought from only one judge thereof — whose opinion concludes that of all other members of the National Court; just as the opinion of one Divisional Court following the Judicature Act, would conclude the opinion of all divisions of the one High Court of Judicature in the U.K. (I should interpolate that s. 166(4) of the Constitution does allow the National Court to be constituted by more than one judge).

One finds that s. 55(4) of the Constitution gives both the Supreme Court and the National Court inherent power to make orders in the nature of prerogative writs and “such other orders as are necessary to do justice in the circumstances of a particular case”. It would follow I think, that were a judge sitting in the National Court to refuse a bail application simpliciter — or one under s. 45 Local Courts Act, that recourse might be had immediately to the Supreme Court de novo, on the same material. The Constitution itself therefore, seems to suggest that it was not intended that the exercise of powers by one judge of the National Court should exhaust a right to apply for relief of the nature required “to do justice” in any particular case. And indeed s. 11 of the Supreme Court Act says that “any power of the Supreme Court under this or any other act” (which presumably includes the Constitution) ... to admit an applicant to bail “may be exercised by a judge in the same manner as it may be exercised by the Supreme Court”. The difficulties worked by the decision of the High Court of Australia in Booth v. Booth[lxiii]³⁴ do not appear to have been avoided by the reception of common law provisions of the Constitution (Sch. 2.2(1)); one would still have to consider on one view, whether the principles and rules that formed immediately before Independence Day, the principles and rules of common law and equity in England, included the amendments made by the Administration of Justice Act 1960 to the procedural law governing applications of the nature of habeas corpus. But whether the law as so amended, or that declared by the decision of the Hastings’ cases[lxiv]³⁵ and Kray’s case[lxv]³⁶ to have been the correct law to apply to the U.K. post-1873 unitary court structure (which we have followed in effect), be considered to reflect the principles and rules of the common law in England pre-Independence Day; one is still required to consider whether such principles and rules are:

(1)      inconsistent with a Constitutional law or statute; or

(2)      inapplicable or inappropriate to the circumstances of Papua New Guinea from time to time.

I think there may be good reason for finding a declared principle or rule that there shall be one application only in habeas corpus or for bail, to the entire court system (subject only to right of appeal to the appeal hierarchy), inconsistent with the intention of the Constitution that inherent power should exist in both National and Supreme Courts of Papua New Guinea to grant such first-instance applications. And one cannot envisage that the intention of the Constitution-makers was that an application made unsuccessfully to a National Court judge should preclude the power of the Supreme Court to entertain it subsequently. But setting that aside, I look at the circumstances of the country. At any one time a majority of the judges are on circuit. It is rare that more than one judge is present in Port Moresby for any length of time. It is sought to arrange a sitting of the Supreme Court (of three judges) at the end of each month. But National Court business, both at Port Moresby (the seat of the Supreme Court) and on the circuits, is such that it is not always possible to assemble a Supreme Court more than once every two months and then only for a few days at the end of the particular month. The judges’ commitments are such that any matter of complexity results in a reservation of judgment which frequently cannot be given for some months. In these circumstances, the right to apply to the Supreme Court in the first instance in a matter such as a bail application would rarely be exercisable in an appeal under the Local Courts Act, as a matter of practice. Judges do not hold themselves out to be infallible. A judge sitting alone, may from time to time, have a day when he is not assessing with his usual perception and lucidity. (I am not of course, suggesting the possibility that the instant facts illustrate such a happening). But having regard to the above considerations, the time factors, the geography, the travel difficulties of Papua New Guinea, and to the possibilities of the future that a province or group may be put in the care of a resident judge; I think that the Hastings[lxvi]³⁷ and Kray[lxvii]³⁸ concepts of the common law principles and rules applicable to habeas corpus and bail applications, or those principles as amended by the 1960 U.K. legislation, should be considered inapplicable and inappropriate to the present and likely future circumstances of Papua New Guinea. A right so precious as that to make timely and effective application for bail, should not be entrusted to one man alone, no matter how eminent or distinguished; when the right of appeal against his decision (because of time and distance factors) is not a practical one. The opinion of more than one judge ought to be readily available of common course where necessary.

I should wish that this Court should declare, following the long-established practice of the Supreme Courts of so many of the Australian States, of other countries of the Commonwealth (no matter how they might have been historically in error), and as approved by the Privy Council in Eshugbayi’s case[lxviii]³⁹; that the right to make an application for bail may be renewed successively on the same (or different) material to each of the judges of the National Court, or to the Supreme Court, even where bail is sought after conviction and pending appeal. I would expect that it would be in the rarest of cases that such an application would be made, and that it would be unlikely that such a procedure would meet with “any great success”, (as Gibbs J., as he then was, said in The Queen v. A. and Others[lxix]⁴⁰ commenting on Queensland’s experience). I have no doubt that the present and future judges of this Court would have little difficulty in dealing with any tendency to abuse the courts process in that regard. I would answer the question referred yes”.

RAINE J:  Counsel for the State urges us to declare that except in cases where the circumstances have changed, it is impermissible to approach another judge when an application for bail has been refused by an earlier judge. The Deputy Chief Justice has set out fully how this extremely academic exercise got under way, and came to consume so much judicial time that might have been the more usefully spent.

The well known principle that if at first you don’t succeed, then try, try again, is firmly entrenched in my home State of New South Wales, although I never saw it applied “qua” bail, but only in applications for rules nisi. However, as the Deputy Chief Justice points out in his judgment, it has also been applied in New South Wales where a judge has refused bail, and other judges have been approached subsequently. As his Honour also points out, the convention is that counsel must always inform the subsequent judge that one of his brethren had refused to make an order. Indeed, I have always believed that this was more than mere convention and that it would be a very serious ethical breach not to make the disclosure, and it would certainly be very bad manners.

The historical basis for the practice is not very satisfactory, at any rate, so far as bail is concerned. I have wondered whether the practice, so far as concerns bail, has, as it were, rather edged in the side door because it was commonly availed of in applications for rules nisi, which, so it seems to me, are distinguishable from applications for bail. I say this because there is no real finality in making or refusing to make an order nisi; all that the judge says, in effect, when granting the rule nisi or refusing it, is that there is or is not a prima facie case worthy of full argument on a subsequent application for a rule absolute. Counsel for the State would, having read the above remarks, no doubt submit that when bail is refused then that is that.

I have read the judgments in draft of Prentice Dep. C. J. and Williams J. and, with some regret, have decided that I should agree with my brother Williams. The reason that I have some feeling of regret is that I am extremely sympathetic with what the Deputy Chief Justice says towards the end of his judgment, when his Honour points out that the making of an application for bail is a very precious right that all members of the community possess, and I agree with his Honour that it is a serious matter that the decision of one judge alone can be decisive, because it is not practical to mount an appeal against the refusal of bail, except in a very exceptional case where it is unlikely that the case can proceed to trial for many months. Like his Honour, I agree that all judges are fallible, or at any rate are more fallible on some days than they are on others. And, of course, it might not be a case of judicial fallibility; it might be a case of poor advocacy which could be cured on a second application by a change of counsel or by a better presentation of the applicant’s case.

However, I am persuaded that my brother Williams has adopted the correct legal approach to the matter and I agree with his conclusion that an application for bail under s. 45 having been made and refused that another judge has no jurisdiction to entertain another application made on exactly the same grounds.

WILLIAMS J:  The facts leading up to this reference are fully set out in the reasons of the Deputy Chief Justice.

It seems to me the right of the appellants to apply for bail flowed from s. 45 of the Local Courts Act and not from any common law right. I did not understand counsel for the appellants to contend otherwise. Many authorities which were cited in argument were concerned with common law rights to apply for a writ of habeas corpus and for bail. Many of these cases are referred to in the reasons of the Deputy Chief Justice and there is no point in my referring to them in any detail.

So far as I have been able to see none of the many cases referred to have referred to a situation in which the applicant for bail has been convicted by a court and is seeking release on bail pending the hearing of the appeal. Rather they deal with the situation in which a person was in custody awaiting trial or retrial or held under some kind of custodial order. In these cases it seems clear that there is a common law right to apply for bail and whilst in these cases it was previously thought that the right to apply for bail extended to applying from court to court and from judge to judge it now seems that in the light of the more recent English cases the correctness of the supposed extent of the right is open to substantial doubt.

It seems to me that the only case to which we were referred and which is directly in point is the Western Australian case of R. v. Weichart [lxx]⁴¹. In that case the prisoner was convicted and points of law were reserved for the consideration of the Full Court. Meanwhile sentence was postponed and bail was refused by the trial judge. An application de novo for bail was made to the Full Court. It was held that in the circumstances the right to apply for bail was a statutory one and had there been no statutory provision there would have been no power to grant bail. Cases in which the prisoner was in custody awaiting trial were distinguished. It was further held that the discretion under the statutory provision having been exercised the Full Court had no jurisdiction to entertain the further application. None of the other cases referred to in argument appears to throw any doubt upon the correctness of this decision.

Section 45 of the Local Courts Act confers on a judge the discretionary power to admit to bail a person who has been convicted by a Local Court and who has appealed against that decision. It seems to me that the argument advanced for the appellants necessarily involves the proposition that this section should be construed by reference to the common law principles relating to applications for bail by way of habeas corpus, by persons who have not been convicted of any criminal offence.

For my part I see no reason to ascribe to the legislature an intention that successive applications might be made under s. 45 in accordance with what may have been thought to be the common law principles relating to bail applications by unconvicted persons. In this respect s. 45 is to be contrasted with s. 555 of the Criminal Code (Queensland adopted) which empowered the granting of bail to persons committed for trial or in custody upon a charge of an indictable offence. That section made specific provision for successive applications by the words “whether bail has been refused or not”. It might be noted that these words do not appear in s. 565 of the new Papua New Guinea Criminal Code relating to the granting of bail.

In my view an application for bail under s. 45 having been made and refused another judge had no jurisdiction to entertain another application made on the same grounds.

As has been stated by the Deputy Chief Justice it seems that had the same time and energy been expended in having the appeals determined on their merits then they would have been disposed of long before this without resort to a time consuming investigation of the common law principles relating to habeas corpus and bail.

ORDER OF THE COURT

It is declared that the application for bail made by the appellants under s. 45 of the Local Courts Act having been heard by a judge of the National Court and refused another judge of the National Court has no jurisdiction to hear and determine a further application for bail on the same grounds.

It is ordered that warrants issue for the apprehension of the appellants and for their detention in custody pending the hearing and determination of their appeals to the National Court.

Solicitor for the appellant: N. H. Pratt, Acting Public Solicitor.

Solicitor for the respondent: L. W. Roberts-Smith, Public Prosecutor.

[xxx](1892) XIII N.S.W.L.R. 150.

[xxxi](1895) XVI N.S.W.L.R. 239, at p. 246.

[xxxii](1890) 15 App. Cas. 527.

[xxxiii](1962) 79 W.N. (N.S.W.) 335.

[xxxiv](1967) 85 W.N. (Pt. 1) (N.S.W.) 544.

[xxxv](1961) 78 W.N. (N.S.W.) 59.

[xxxvi](1961) 78 W.N. (N.S.W.) 59.

[xxxvii](1962) 79 W.N. (N.S.W.) 335.

[xxxviii](1931) 48 W.N. (N.S.W.) 228.

[xxxix][1903] St.R.Qd. 140.

[xl][1940] V.R. 236.

[xli]13 M. & W. 679.

[xlii](1950) 66 T.L.R. (Pt. 2) 932.

[xliii](1903) 5 W.A.L.R. 105.

[xliv](1931) 48 W.N. (N.S.W.) 228.

[xlv](1900) 18 N.Z.L.R. 601.

[xlvi][1924] 1 D.L.R. 910.

[xlvii][1924] 3 D.L.R. 153.

[xlviii][1943] 3 D.L.R. 292.

[xlix][1928] A.C. 459.

[l][1845] EngR 443; 13 M. & W. 679.

[li][1938] I.R. 699.

[lii][1928] A.C. 459.

[liii](1890) 15 App. Cas. 527.

[liv][1959] 1 Q.B. 358.

[lv][1937] I.R. 699.

[lvi]13 M. & W. 679.

[lvii]5 L.T.O.S. 130.

[lviii](1890) 15 App. Cas. 527.

[lix][1959] 1 All E.R. 698.

[lx][1959] 1 All E.R. 698.

[lxi][1965] 1 All E.R. 710.

[lxii][1965] 1 All E.R. 710.

[lxiii](1935) 53 C.L.R. 1.

[lxiv][1959] 1 All E.R. 698; [1959] 1 Q.B. 358.

[lxv][1965] 1 All E.R. 710.

[lxvi][1959] 1 All E.R. 698.

[lxvii][1965] 1 All E.R. 710.

[lxviii][1928] A.C.459.

[lxix](1968) 13 F.L.R. 342.

[lxx][1903] WALawRp 35; (1903) 5 W.A.L.R. 105.