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Re Thomas Markus [1999] PGNC 82; N1931 (15 September 1999)

Unreported National Court Decisions

N1931

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP NO. 381 OF 1999
RE THOMAS MARKUS

Lae

Injia J
7 September 1999
15 September 1999

PRACTICE AND PROCEDURE - Bail applications - National Court - Refusal by one Judge of the National Court - Need for Court to provide full reasons for refusal - Fresh application to same or another judge of National Court - Need for applicant to show change in relevant circumstances - Relevant circumstances must relate to earlier reasons for refusal - Need for applicant to furnish full reasons for refusal of bail by previous judge - Bail Act, SS.6, 7, 13 and 16.

Cases Cited

Re: Herman Kagl Diawo [1980] PNGLR 148

Counsel

L. Siminji for the applicant

M. Peter for the respondent(State)

15 September 1999

INJIA J: This is a bail application pursuant to S.6 of the Bail Act (Ch. No. 340) pending conclusion of committal proceedings before the District Court at Lae. The application is made before me as a judge of the National Court following refusal of bail by another Judge of the National Court, namely Sakora J, on 16 July 1999. His Honour refused bail under S.9(1)(c)(i) of the Act because the offence of murder with which the accused was charged consisted of a serious assault: see Certificate of Refusal to Grant Bail dated 16 July 1999. The primary basis of the application before me is that since the refusal of bail by Sakora J, circumstances have changed which warrants me to re-visit the matter afresh, namely, that on 13 August 1999, another judge of the National Court, Justice Hinchliffe, granted bail to the applicant’s four (4) co-accused.

The principles relating to bail are that an applicant “is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require” (Constitution S.42(6), Bail Act, S.3). As such, S.9(1) of the Bail Act sets out criteria for “not as to granting bail but as to its refusal”: Re Herman Kagl Diawo [1980] PNGLR 148 at 155. An applicant refused bail previously by a Judge of the National Court may re-apply afresh to the same judge or another judge of the National Court if changes in relevant circumstances have occurred since bail was last refused. This principle is derived from S.6 and S.7 of the Bail Act.

Section 13 of the Bail Act provides for the procedure to be followed where a person is refused bail by a bail authority. Subsection (2) specifically relates to refusal by a judge of the National Court. Section 13 provides:

13. Further application may be made after refusal.

(1) Where a person is refused bail by a Magistrate he is entitled to apply for bail, immediately if he so desires, to a Judge of the National Court.

(2) Where a person is refused bail by a Judge of the National Court he is entitled to apply for bail, immediately if he so desires, to the Supreme Court.

(3) Where an application is made under Subsection (1) or (2), the applicant shall produce a copy of the reasons given under Section 16.

(4) An application may be made under Subsection (1) or (2) whether or not bail was refused--

(a) under this Act (including this section) or under any other law; or

(b) on an application.

The present application does not come under S.13(2) because this application is not made to me as a single judge of the Supreme Court, of which I am: Constitution, S.160(1), S.162(2). The question of whether the jurisdiction of the Supreme Court to deal with bail applications under S.13(2) may be exercised by a single judge of the Supreme Court or a full bench of the Supreme Court and if bail is refused by a single judge of the Supreme Court, whether or not he is entitled to re-apply for bail to a full bench of the Supreme Court, are questions which I as a National Court has no jurisdiction to answer.

At the hearing, I invited the applicant’s counsel Mr Siminji to cite to me any authority for the proposition he advanced, that is that the granting of bail to the applicant’s co-accused by another judge of the Supreme Court since the earlier refusal of bail by still another judge of the National Court is a change in relevant circumstance. He was unable to cite any. Mr M. Peter who appeared for the State also did not cite any authority. In my view, it is not. Bail is a matter that affects the liberty of an individual “person” and not persons in groups. Although several persons may be charged jointly or severally with the same charge in relation to a particular crime, the nature and extent of the participation of each co-offender in the crime is always different as are their individual personal circumstance. Therefore, bail is always considered on an individual basis.

In considering whether there has been a change in circumstances, the change or changes in circumstances must be relevant. In determining what changes are relevant circumstances, it is necessary to re-visit the judge’s earlier reasons for refusing bail with reference to S.9(1) of the Bail Act. Any circumstances which did not form part of the reasons pertaining to the grounds upon which bail was refused under the criteria in S.9(1) is not a relevant circumstance for which the Court should re-consider its earlier decision to refuse bail. Indeed it would amount to abuse of process of the Court for a person refused bail by a judge of the National Court to re-apply for bail to the same judge or different judge of the National Court simply for the purpose of taking another bite at the same application before another judge, without providing evidence of any change in relevant circumstances or with evidence of change in irrelevant circumstances.

A decision made in granting or refusing bail is a judicial decision. That is why S.16 requires the Court to give reasons in writing for its decision to the person in custody or his legal representative, and to ensure that those reasons are recorded on the Court papers relating to the charge against the person. Section 16 provides:

16. Reasons for refusing bail to be given and recorded.

(1) Where bail is refused the bail authority shall at that time give the reasons in writing for its decision to the person in custody or his legal representative.

(2) Where the bail authority refuses to grant bail, whether or not application has been made, the bail authority shall ensure that the reasons for its decision are recorded--

(a) if the bail authority is the officer-in-charge of a police station or a commissioned officer of the Police Force--in the register of arrests at the police station where the person is held in custody; and

(b) if the bail authority is a court--in the court papers relating to the charge against the person.

Any change in relevant circumstances must relate to those reasons for refusing bail set out on the face of the written record provided under S.16. The current practice under S.16 is that the Bail Regulations Section 3 requires the issue of a Certificate of Refusal to Grant Bail which contains the same grounds for refusal bail under S.9(1). The bail authority refusing bail is simply required to tick the appropriate box appearing beside the ground of refusal set out on the said Certificate. It might appear that the issue of a Certificate is sufficient compliance with the requirement to give reasons in S.16. However, in my view, in order to attain full compliance with S.16, it is desirable that the National Court should record and produce upon request by an applicant, full reasons for refusal of bail in addition to providing the Certificate of Refusal to Grant Bail. This would also enable the next judge of the National Court to properly re-consider afresh bail of a person who is previously refused bail by a judge of the National Court. By analogy to S.13(3) of the Bail Act, an applicant re-applying for bail before the same or another judge of the National Court following refusal of bail by the same or another judge of the National Court, should be required by the Court to furnish a copy of the full reasons for refusal provided under S.16 of the Act.

In the matter before me, no such full reasons for refusal of bail by Sakora J. has been furnished to me by the applicant. I cannot find one on the Court file either. The mere reference to the Certificate of Refusal to Grant Bail in the Court file shows nothing more than the fact that bail was refused under S.9(1)(c)(i), namely the offence with which the applicant was changed convicted on account of serious assault. The bare change in the bail status of the applicant’s co-accused falls short of a change in relevant circumstances. In the circumstances, I am not satisfied that change in relevant circumstances have been shown to exist by the applicant since bail was last refused by Sakora J. For these reasons, I refuse bail.

Lawyer for Applicant: Public Solicitor