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Re the Bail Act (Ch340); Application by John Wilford Gibson [1990] PGNC 52; N903 (8 August 1990)

Unreported National Court Decisions

N903

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP NO. 105 OF 1990
IN THE MATTER OF THE BAIL ACT CHAPTER 340 IN THE MATTER OF AN APPLICATION BY JOHN WILFORD GIBSON

Waigani

Hinchliffe J
3 August 1990
8 August 1990

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 - Bail Act.

An accused charged with having in his possession a large amount of marijuhana was granted bail by the District Court and required to surrender his passport. On or about the 25th and 28th of June 1990, on medical grounds, he applied to the National Court pursuant to s 23 of the Bail Act for permission to leave Papua New Guinea because he required medication in Australia. This application was refused. On the 3rd and 8th of August, 1990 he again applied to a different judge of the National Court, for permission to leave Papua New Guinea, but the application was again refused.

Held:

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

Case Cited:

Ex parte Arthur Gilbert Smedley, 1978 PNGLR 156.

Application

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

Counsel:

C. Karingu, for the Applicant.

N. Mirou, for the State.

Cur adv vult

8 August 1990

HINCHLIFFE J: John Wilford Gibson is applying to this Court under s 23 of the Bail Act (Ch. No. 340) for permission to leave the country and travel to Australia.

Section 23 of the said Act provides as follows:

“(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 foporariod b the commencement or conclusion of that proceeding, he may, after reasoreasonablenable noti notice to the other party, apply to the National Court or Supreme Court for permission to do so.

(2) issrmn sholl not be grantedanted under Subsection (1) unless the court is satisfied that the person will return to Papua New Guinea for the proceeding.

(60;&##160;;&#16permi granted under this this sect section mion may beay be subj subject to conditions.

(4) &##160; A persoperson may afply err permission under this section at the same time that he applies for bail.

(5) &##160;; permn ermn is ed s ed under this section, a note to that ehat effect shall be endorsed on the copy oopy of thef the bail certificate held by the person ed ba8221;

The applicant is a New Zealander andr and is n is not a resident of Papua New Guinea. He has been charged under s 3(1)(d) of the Dangerous Drugs Act in relation to a large amount of marijuhana. The State alleges that he was in possession of some 167 kgs valued at K5 million. There is some doubt, it seems, about the value and it is likely that the real figure is well below K5 million. Probably between K50,000 and K5 million.

A similar application was made to Salika J. late in June of this year. I say “late in June” because it is not clear to me whether it was on the 25th or the 28th June. The fact that a similar application has already been made to my mind creates a problem for the applicant. I say that because in the case of Ex parte Arthur Gilbert Smedley 1978 PNGLR 156 it was held that a fresh application by a person granted bail, pursuant to s 23 of the Bail Act, 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. That was a decision of Pritchard J. in the National Court and I agree with that part of his judgment. I am not aware of any other reported or unreported decisions on the point. It would seem to me that if Mr. Justice Pritchard’s view was not followed then an applicant could keep coming back and back to the National Court, everyday if he wished, until he found a Judge who would grant his application. That to my mind would be an abuse. Clearly if there is no substantial change of circumstances then the applicant should go to the Supreme Court.

I was told that Salika J. refused the first application because there was no urgent need for Mr. Gibson to leave the country, as there were no medical reports to prove that he required medication in Australia. The medical reports were apparently on the District Court file at the time. Those reports are now before this court annexed to the affidavit of Canisius Karingu dated the 2nd August 1990.

On examining those reports and certificates I am not satisfied that any of them indicate that there is an urgent need for the applicant to go to Australia for medical purposes. Certainly they show that the applicant suffers from a heart ailment and that he is under certain medication. His condition seems stable. To that extent, even after the production of medical evidence, there has been no substantial change of circumstances.

In relation to the first application there is nothing before me as to whether or not Salika J. made any comment about other matters including the applicant’s occupation. I can only assume that His Honour considered that the medical reason was the only relevant reason in this case as far as the said s 23(1) is concerned. Nevertheless nothing new was put before me anyway in relation to the applicant’s occupation.

As this is the second application before the National Court I must be satisfied that there has been a substantial change of circumstances before I can entertain the application. I am not so satisfied and therefore the application is refused.

If Mr. Gibson wishes to apply again on the same material he must do so to the Supreme Court.

Application refused.

Lawyer for the Applicant: Karingu Sitapai Kemaken & Associates

Lawyer for the State: Public Prosecutor