Papua New Guinea Law Reports - 1980
[1980] PNGLR 158
N237
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
RE STEPHEN MARK MCMILLAN
Waigani
Kearney DCJ
16 July 1980
18 July 1980
CRIMINAL LAW - Practice and procedure - Application for permission to leave Papua New Guinea - Applicant on bail - Power discretionary - Objection by Public Prosecutor relevant but not conclusive - Bail Act 1977 s. 23.
An application under s. 23 of the Bail Act 1977, by a person granted bail, for permission to leave Papua New Guinea, is a matter for the exercise of the court’s general discretionary powers subject to the court being satisfied that the applicant will return for his case to be heard.
Semble
The opposition of the Public Prosecutor to such an application is relevant but not conclusive.
Ex parte Smedley [1978] P.N.G.L.R. 156 disapproved.
Application
This was an application by a person granted bail for permission to leave Papua New Guinea, and made pursuant to s. 23 of the Bail Act 1977.
Counsel
M. Challinger, for the applicant.
J. Karczewski, for the respondent (State).
Cur. adv. vult.
18 July 1980
KEARNEY DCJ: The applicant, a New Zealand citizen, is charged before the District Court at Boroko with the possession of 0.063 grams of cannabis, an offence under s. 7 (1)(d) of the Dangerous Drugs Act 1952. He will plead not guilty.
His case has been adjourned from time to time and is presently listed for mention on 5th August. Meanwhile, he is on bail granted by the District Court, having observed conditions that he deposit the sum of K200 cash and surrender his passport.
He now wishes to leave the country temporarily. On 16th July he applied to this Court for permission to do so. Permission was granted, subject to certain conditions. I said then that I would publish the reasons for granting permission; I now do so.
The relevant facts are as follows: The applicant has resided in this country for eight and a half of the last eleven years. He owns a house near Port Moresby; he is a partner in a firm currently carrying on business here, and by reason of his occupation, he is required to be absent on business in Australia and the Cook Islands, until the end of August. He has expressed an intention then to return to this country. The charge against him relates to a very small quantity of the drug in question. The maximum penalty for the offence charged is two years’ imprisonment; the minimum is three months. The case will be defended.
Section 23 of the Bail Act 1977 provides that permission to leave the country shall not be granted unless the court is satisfied that the applicant will return for his case to be heard. Otherwise, the question is clearly one within the discretion of the court, to be determined according to commonsense and to justice.
The only reported decision in s. 23 is Ex parte Smedley[cclxii]1. The circumstances of that application were very different to this. In particular, the Acting Public Prosecutor does not oppose this application, provided certain conditions are imposed. However, with great respect to certain views expressed in Ex parte Smedley (supra), it cannot be the law that an application under s. 23 should be refused simply because the Public Prosecutor opposes it. That would amount to a refusal to exercise the discretionary power vested in this Court, by surrendering effective decision-making power to the Public Prosecutor. The grounds of any such opposition would no doubt be matters the court would consider when making up its mind whether or not to grant permission.
In this case I am satisfied that the applicant will return to the country for the hearing of his case by the District Court. I am satisfied that it is desirable in his own business interests, that he do so. I consider that it is proper that he be allowed to leave the country for a temporary period, before the commencement of the case. The conditions upon which that permission is granted are as follows:
1.       That he supply to Senior Inspector Singh by 17 July 1980 an itinerary of his movements overseas and means of travel;
2.       That the sum of Two hundred Kina (K200) already paid on 12 June 1980 under official receipt No. P. 19609 as a condition on which bail was granted by the District Court on that date shall also stand to secure his observance of these conditions, and that failure to observe these conditions, or any of them, shall mean that the said sum is liable to forfeiture to the State upon application to the District Court or National Court;
3.       That he shall return to Papua New Guinea no later than 6 p.m. on Sunday 31 August 1980;
4.       That immediately upon his return to Papua New Guinea he shall surrender his Passport to Senior Inspector Singh of the Drug Squad.
Order accordingly.
Solicitor for the applicant: Young & Williams.
Solicitor for the respondent: L. Gavara Nanu, Acting Public Prosecutor.

[cclxii] [1978] P.N.G.L.R. 156.