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Kysely, Re Bail Application [1980] PNGLR 36 (14 April 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 36 - Re Application for Bail by Paul Louis Kysely 

[1980] PNGLR 36

N231

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PAUL LOUIS KYSELY

V.

THE STATE

Waigani

Wilson J

12 April 1980

14 April 1980

CRIMINAL LAW - Practice and procedure - Bail application - Pending committal - Whether applicant likely to interfere with witness if granted bail - “Likely” - Bail Act 1977 s. 9(1)[l]¹.

WORDS AND PHRASES - “Likely” - Likely to interfere with witnesses - Bail application - Bail Act 1977 s. 9(1)(b)[li]².

Section 9(1) of the Bail Act 1977, provides that a bail authority shall not refuse bail unless satisfied on reasonable grounds, inter alia:

(f)      that the person (seeking bail) is likely to interfere with witnesses or the person who instituted the proceedings;

On an application for bail by a person who had once attempted to interfere with a State witness.

Held:

(1)      The word “likely” in the phrase “likely to interfere with witnesses” in s. 9(1)(f) of the Bail Act 1977, means likely in the sense of a tendency or real possibility: it does not mean “more likely than not”, “probably” or “very likely”.

Livingstone-Thomas v. Associated Newspapers Ltd. (1969) 90 W.N. (Pt. 1) (N.S.W.) 223 at p. 229 adopted and applied.

R. v. Callander (No. 2) [1957] VicRp 71; [1957] V.R. 535 at p. 536 disapproved.

(2)      In the circumstances particularly the evidence of interference already having occurred, there was a real possibility that witnesses would be interfered with if the applicant were released on bail and the application for bail should be refused.

Bail Application.

This was an application for bail, pursuant to s. 6(1) of the Bail Act 1977, by a person who was charged with receiving a stolen motor car, the committal proceedings for which were pending.

Counsel:

M. Challinger, for the applicant.

C. Maino-Aoae, for the respondent.

Cur. adv. vult.

14 April 1980

WILSON J: This is an application for release on bail pending a committal for trial. The application was made by the applicant who was charged with receiving a stolen motor car. I was told that another charge of a similar nature was to be laid against the applicant, that other investigations were continuing relating to some car thefts, and that it was possible that ultimately more than one additional charge would be laid.

Having regard to the need to reach a decision quickly and before the applicant was required to spend another night in custody before the result of this application was known, I indicated in a general way on Monday 14th April, 1980, the reasons for my decision and my conclusions on the facts. I intimated that I would publish my full reasons later, which I now do.

The applicant in a case of this kind starts with a heavy presumption in his favour. As is guaranteed to him under the Constitution of the Independent State of Papua New Guinea and under the Bail Act 1977, he is entitled to bail, and a bailing authority shall not refuse him bail, unless that authority is satisfied on reasonable grounds as to one or more of the considerations set out in s. 9(1)(a) to (g) of the Bail Act 1977.

I was informed of the history of this matter, which history included the release of the applicant on bail on Wednesday 9th April in the District Court at Boroko, the subsequent revocation of that bail on Friday 11th April in the same District Court, and the refusal on that latter date to grant fresh bail. Information was supplied to me (and evidence was adduced) to the effect that the applicant had breached a condition of the bail granted on 9th April to the effect that he report each Friday to the O.I.C., Police Station, Boroko. Evidence was adduced to the effect that on Wednesday 9th April between 10.30 p.m. and 11.00 p.m. the applicant had attempted to communicate verbally with one Simon Brown, a State witness to be called to give evidence against the applicant. It was contended on behalf of the State that that amounted to interference or attempted interference with a State witness. Although it was right that I be informed of all these matters, it remains for me, after hearing this application and receiving the evidence that was placed before me, to decide whether I am satisfied on reasonable grounds that the applicant will not appear at his trial if granted bail by this Court (see s. 9(1)(a)), and whether I am satisfied on reasonable grounds that the applicant is likely to interfere with witnesses (see s. 9(1)(f)).

The relevant provisions of s. 9(1) of the Bail Act 1977 are:

“9.      —BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

(1)      Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:—

(a)      that the person in custody will not appear at his trial if granted bail; or

...

(f)      that the person is likely to interfere with witnesses or the person who instituted the proceedings; or

...”

Notwithstanding the proved (and admitted) breach of the bail condition on 11th April when the applicant failed to report, I am not satisfied that the applicant will not appear at his trial if granted bail. I accept the applicant’s evidence and explanation and I am persuaded by his counsel that his failure to report was more in the nature of a foolish oversight. The fact that his passport had been surrendered and the fact that he was located at his work place (and not in a situation indicative of an intention to leave Port Moresby and thereby escape detection or apprehension) militate against a finding adverse to the applicant in relation to s. 9(1)(a).

With reference to s. 9(1)(f), I am in no doubt that, on Wednesday 9th April between 10.30 p.m. and 11.00 p.m. after the applicant had received two warnings, one in the District Court and another from Senior Inspector Garvey, the applicant attempted to interfere with a State witness, Simon Brown, whom he knew to be a State witness. That witness not unreasonably concluded that, if he had disregarded a similar warning he had received from Senior Inspector Garvey, an attempt would have been made to influence him in the evidence that he might give on the prosecution of the applicant. He, perhaps better than anyone else, was in a position to assess the likelihood of what was to follow if the two young men had embarked upon a discussion about the case.

I accept not only the undisputed evidence but also that portion of Senior Inspector Garvey’s evidence which was disputed by the applicant. I was not impressed by the applicant either as to demeanour or as to the substance of his evidence. The applicant clearly was unable to see any distinction between a failure to remember something that was said and a denial that it was said. As to one important piece of evidence against him, he waivered between assertions that he could not remember what Senior Inspector Garvey had said and denials that those things had been said. I prefer the evidence of Simon Brown to that of the applicant where their evidence conflicts.

The question remains as to whether, one attempted interference with a State witness having occurred, I can be satisfied, to the extent required by s. 9, that the applicant is likely to interfere with State witnesses in the future. I accept Mr. Challinger’s submission that, because one such interference or attempted interference has occurred, it does not necessarily follow that interference in the future will occur.

Both Mr. Challinger and Mr. Maino relied upon passages in the judgment of Sholl J in R. v. Callander (No. 2). I am of the opinion that Sholl J overstated the position when he equated, as I think he did, “likelihood” with “probability”. His Honour said[lii]³:

“Indeed, if there were evidence only that Crown witnesses had been interfered with already, and that evidence did not warrant the inference that there might be further interference, it might well be that the application to revoke bail would be refused, though obviously evidence that interference has already taken place may afford strong grounds for presuming the probability of further interference.”

Except to the extent to which Sholl J equated “likelihood” with “probability”, I am persuaded by what that learned and respected judge said in the passage quoted above.

I prefer the reasoning of Wallace P. in his judgment in Livingstone-Thomas v. Associated Newspapers Ltd.[liii]⁴, where the learned president said:

“The word ‘likely’ can scarcely mean ‘more likely than not’ in s. 5, if only for the reason that the section does not say so. Similarly such significances as ‘probability’ and ‘very likely’ are to be rejected. I think the legislature has meant ‘likely’ in the sense of a tendency or real possibility.”

I hold that the word “likely” in the phrase “likely to interfere with witnesses” in s. 9(1)(f) means likely in the sense of a tendency or real possibility. It does not mean “more likely than not”, “probably”, or “very likely”.

Having regard to all the evidence placed before me and, in particular, the evidence that interference has already occurred, there is a real possibility in the instant case that witnesses will be interfered with if the applicant is released on bail. For these reasons, I am satisfied to the requisite extent as envisaged in s. 9 that the applicant is likely to interfere with witnesses.

Accordingly, the application for bail is refused.

A considerable amount of material having been placed before me regarding the handling of the question of bail by the District Court on both Wednesday 9th April and Friday 11th April and notwithstanding the fact that this application is not in the nature of an appeal against the decision reached on 11th April, I think it appropriate for me to say that the matter appears to have been handled properly and in accordance with proper legal principles on both occasions in the District Court. Because I saw fit to hear evidence on oath in this application before me, it does not follow that I consider it necessary to hear evidence on oath whenever an application of this kind is heard in a District Court. Of course, there are occasions when it would be desirable to call evidence on oath. It would have been desirable in this instance if either the prosecution or the defence had requested it, but, as I understand the position, both sides were content with statements from the Bar table.

Application for bail refused.

Solicitor for the applicant: Young & Williams.

Solicitor for the respondent: C. Maino-Aoae, Public Prosecutor.

[l]Infra p. 37.

[li]Infra p. 37.

[lii][1957] VicRp 71; [1957] V.R. 535 at p. 536.

[liii](1969) 90 W.N. (Pt. 1) (N.S.W.) 223 at p. 229.