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Smedleyi, Re Bail Act [1978] PNGLR 156 (13 May 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 156 - Re The Bail Act 1977; Ex Parte Arthur Gilbert Smedley 

[1978] PNGLR 156

N136

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE BAIL ACT 1977

EX PARTE ARTHUR GILBERT SMEDLEY

Waigani

Pritchard J

13 May 1978

CRIMINAL LAW - Practice and procedure - Application for permission to leave Papua New Guinea - Applicant on bail - First application refused - Second application to be allowed only if substantial change of circumstances - Principles concerning applications by non-citizens considered - Public Prosecutor’s objection to application, relevance - Bail Act 1977, s. 13, s. 23[cclxii]¹.

An accused charged with a number of offences of stealing as a public servant, was granted bail by the District Court and required to surrender his passport. On 12th May, 1978 his mother having died, he applied pursuant to s. 23 of the Bail Act 1977 for permission to leave Papua New Guinea to attend her funeral, and this application was refused on the ground provided for in s. 23(2) of the Act that the court was not satisfied that the applicant would return to Papua New Guinea. On 13th May, 1978 he again applied, to a different judge of the National Court, for permission to leave Papua New Guinea, and relied upon the availability of a guarantor, not available on the first application. Both applications were opposed by the Public Prosecutor.

Held

(1)      A fresh application by a person granted bail, pursuant to s. 23 of the Bail Act 1977, for permission to leave Papua New Guinea, should not be granted, where a previous application has been refused, unless there is a substantial change of circumstances.

(2)      Accordingly the failure to provide a guarantor not being the specific reason why permission to leave the country was refused under s. 23(2) of the Bail Act, the provision of a guarantor was not a change of a sufficiently substantial nature to found a fresh application and the application should be refused.

(3)      In the interests of the administration of justice, the court should respect the constitutional office of the Public Prosecutor to the extent that where criminal charges are pending against a person who is not a citizen of this country and the Public Prosecutor, in the exercise of his constitutional responsibility, objects to that person leaving Papua New Guinea, any application that he should be permitted to do so should be refused.

Application

This was an application by a person granted bail, and made pursuant to s. 23 of the Bail Act 1977 for permission to leave Papua New Guinea.

Counsel

I. R. Molloy, for the applicant.

K. B. Egan, for the State.

Cur. adv. vult.

13 May 1978

PRITCHARD J: This is an application under s. 23 of the Bail Act 1977 for permission to leave Papua New Guinea. The applicant is at present on bail granted by the Alotau District Court on a number of charges of stealing a total of K14,600 as a public servant within the meaning of s. 384(5) of the Criminal Code, each of which offence carries a maximum punishment of 7 years imprisonment with hard labour. Although the applicant was granted bail it appears that the magistrate, as a condition precedent, required him to surrender his passport into the custody of the court. The applicant is an Australian citizen. Since Independence, when persons who are not citizens of this country are charged with criminal offences, it has become a growing practice for magistrates to require such persons to surrender their passports if bail is to be granted. This is a practice which is not only sensible but appropriate to an independent nation.

This application comes before me as a matter of urgency on a Saturday morning and the reason for it is that the applicant wishes to travel to Australia for the funeral of his mother who has very recently died whilst on a visit to Papua New Guinea. The applicant is represented by Mr. Molloy of counsel and Mr. Egan, the Public Prosecutor, appears for the State. There is no dispute that the applicant wishes to go to Australia for the reason stated.

Mr. Egan has taken a preliminary objection to the making of this application. He disputes the applicant’s right to make it because only yesterday a similar application was made before my brother Kearney and rejected by his Honour on the merits. Section 23 of the Bail Act reads as follows:

“23.    PERMISSION TO LEAVE THE COUNTRY IN CERTAIN CASES

(1)      Where for urgent personal reasons or by reason of his occupation a person granted bail in relation to a proceeding wishes to leave the country for a temporary period before the commencement or conclusion of that proceeding, he may, after reasonable notice to the other party, apply to the National Court or Supreme Court for permission to do so.

(2)      Permission shall not be granted unless the court is satisfied that the person will return to Papua New Guinea for the proceeding.

(3)      A permission granted under this section may be subject to conditions.

(4)      A person may apply for permission under this section at the same time that he applies for bail.

(5)      Where permission is granted under this section, a note to that effect shall be endorsed on the copy of the bail certificate held by the person granted bail.”

Mr. Egan says, and it is agreed, that his Honour rejected the application specifically on the ground that he was not satisfied that the applicant would return to Papua New Guinea in accordance with s. 23(2) of the Act. I am informed that his Honour adopted the view that the onus of satisfying the court in accordance with that sub-section lay upon the applicant and that the standard of that onus was on the balance of probabilities. Mr. Egan submits that a second application cannot be made unless there is a substantial change of circumstances. He submits that the principle of res judicata should apply. Mr. Egan says that a second application should not be entertained by another judge and in that regard referred me to the decision of Paul Aika & Ors. v. Caspar Uremany[cclxiii]². In that decision a considerable number of authorities, largely of historical interest, were considered by the court in relation to the making of a second application for bail. I do not consider the authority assists me. Firstly the reasoning for the majority decision of Williams J and Raine J was that in that particular matter the specific right to grant bail was one conferred by s. 45 of the Local Courts Act 1963 (as amended). Their Honours’ decision was that whatever the common law principles relating to bail concerning unconvicted persons may have been, they were not applicable to an application for bail under that section. Secondly, although Prentice Deputy C.J (as he then was) in his dissenting judgment expressed the view that a second application for bail could be made, I do not think his Honour’s views assist me because this is not an application for bail at all. The applicant is already on bail.

In reply to Mr. Egan’s arguments, Mr. Molloy puts to me that the change of circumstances upon which he relies before me today is that a guarantor is available in the sum of K30,000 who was not available yesterday. Mr. Egan submits that this is not a change of circumstances in that it is not going to the question of the likelihood of the applicant returning to face the charges on which he has yet to be committed for trial. Mr. Egan states that he has consulted the government officers investigating the charges relating to the applicant and anticipates that the applicant will be finally charged with stealing at least K80,000 from the Government with a possibility, on further investigation, that this sum may exceed K100,000. These allegations were before Kearney J yesterday when that application for permission to leave Papua New Guinea was refused, it then being opposed by one of Mr. Egan’s senior prosecutors. Counsel agree that Kearney J did not base his decision that he was not satisfied that the applicant would return to Papua New Guinea on the fact that a guarantor was not available. He made no reference to it at all. Mr. Egan raises another point, namely that after the decision in Paul Aika’s case[cclxiv]³ the Bail Act 1977 was passed, s. 13 of which provided that in the event of refusal of bail a person could go to another magistrate of equal or higher jurisdiction or in the case of a judge to another judge of the National Court. Mr. Egan points out that that section has now been amended by the Bail (Amendment) Act 1978 and the position now is, that where a person is refused bail by a magistrate he can apply only to a judge of the National Court, and where he is refused bail by a judge of the National Court he can only apply for bail to the Supreme Court. Mr. Egan submits that this is a clear indication by Parliament that a person cannot go from judge to judge and that this principle should be similarly applied to applications under s. 23. I agree with him and I hold that unless the failure to provide a guarantor was the specific reason why permission to leave the country was refused under s. 23(2), the provision of a guarantor is not a change of circumstances of sufficiently substantial nature to found a fresh application. The application is therefore refused.

There is another matter which is perhaps more fundamental in considering applications of this type. The section itself is a novel one. Neither I nor counsel have been able to find a similar section in the criminal law of other countries, limited admittedly as our researches have been. The onus of satisfying a judge of this Court in accordance with s. 23(2) of the Act, even on the balance of probabilities, would appear to me to be a very difficult one indeed where serious criminal charges are involved. However, try as I might, I cannot envisage a situation where a judge of this Court would grant an application such as this in the face of the opposition of the Public Prosecutor of Papua New Guinea. The Public Prosecutor is a Law Officer of Papua New Guinea (Constitution s. 156), a Constitutional office-holder (Constitution s. 221) and is given the responsibility to control the exercise and performance of the prosecution function before the courts of this nation, (Constitution s. 177). His duties are spelt out clearly in the Public Prosecutor (Office and Functions) Act 1977. I believe that this Court should respect the constitutional office of Public Prosecutor to the extent that where criminal charges are pending against a person who is not a citizen of this country and the Public Prosecutor in the exercise of his constitutional responsibility objects to that person leaving Papua New Guinea, any application that he should be permitted to do so should be refused. This is not a question of bail; this is a question going directly to the administration of justice. I am quite confident that in cases where the Public Prosecutor realises a person has a genuine need to leave Papua New Guinea temporarily he will give the matter proper consideration and in the appropriate case consent to such an application before this Court. In the case of Papua New Guinea citizens, of course, different considerations to the above would apply.

Application refused.

Solicitors for the applicant: Craig Kirke & Wright.

[cclxii]Infra p. 157.

[cclxiii][1976] P.N.G.L.R. 46.

[cclxiv][1976] P.N.G.L.R. 46.