N2070

PAPUA NEW GUINEA

[In the National Court of Justice]

MP No. 750 of 2000

THE STATE

Vs.

NORBERT MArKMOP

Waigani: Davani J
2001 : 4 April

PRACTICE AND PROCEDURE – Application to vary bail conditions – Applicant/Accused a politician and has a medical disability – Commonsense and justice must prevail – Orders intended for the courts to continue to maintain contact with Accused/Applicant and vice-versa.

Counsel:
G. Garo, for the Applicant/Accused
M. Boni, for the State

Decision

4 April 2001

DAVANI J:	The applicant is applying pursuant to ss.20 and 23 of the Bail Act to vary conditions of bail set out in Bail Certificate dated 25 November 2000.

The Applicant’s submissions are based on three grounds:-

1.	That his duties as a member of Parliament and Governor of the Fly River Provincial Government requires that he be in either his home province attending to his electoral duties or in Port Moresby.

2.	The Applicant presently suffers from a cataract problem in his right eye that requires surgery and that surgery may have to be performed in Australia.

3.	That he may be required to travel overseas for official duties.

This application was mentioned on Friday 30 March 2001 wherein I then requested the Applicant’s Lawyer to produce the following information to me in affidavit form after which I would then consider the application. These were:-

i.	Confirmed dates of travel to Australia by the Applicant for treatment;
ii.	Confirmed dates for the operation (to the Applicant’s eye) and the length of time he will be in hospital;
iii.	Confirmed dates of official travel within Papua New Guinea and or overseas.
iv.	A legible copy of Annexure "K" to the Applicant’s affidavit. 

Ms Boni for the State did not oppose the application but requested that the Applicant submit/file the information in Court:

(a)	An itinerary to be submitted on the exact details of travel.
(b)	The Court to make definite orders as to when the Accused should be back in the country.
(c)	A sum of K1000 to be paid as security in observance of bail conditions to be paid to the Court and further orders that on breach of conditions, that this sum be forfeited to the State.

It is necessary that this court consider the background of this matter. The Applicant was committed to stand trial in the National Court on 30 June 2000 for allegedly misappropriating various sums of money, totalling approximately K54,425.00. A reporting condition of his bail was that he report weekly, every Friday to the Court. He has done that, dutifully. However, he now claims these reporting conditions must be varied to a monthly reporting condition because of various reasons raised which I referred to earlier. In support of that application, he swore and filed two affidavits, the latter one having been filed on the Court’s request sworn on 3 April 2001 and filed on the same day.

The Applicant’s Affidavit of 3 April 2001 states he is scheduled to travel on 7 April 2001 and to return on 21 April 2001. However, it does not have attached to the Affidavit a copy of the airline ticket or the bookings print out. He also states the eye operation is deferred indefinitely.

I must therefore use my best judgment in this matter, with not much assistance from Counsel. The nature of the offence is serious. Furthermore, the matter may not be listed for trials and heard within the immediate future. The Applicant will therefore continue to make applications to the Court to vary his bail conditions considering the nature of his job and the lingering disability to his eye. It is also necessary that this Court maintain "contact" with the Applicant prior to the completion of this matter. As alluded to earlier, the Court finds that it must address not only this application, but future possible applications that may be made, considering the nature of the Applicant’s job as a politician and the need for him to be in his home province or to travel overseas and the disability to his eye. In saying this, I refer to the case of Re: Stephen Mark McMillan [1980] PNGLR 158. There the Applicant applied pursuant to s.23 of the Bail Act for permission to leave Papua New Guinea. The Court made those orders and in doing so, discussed the Court’s discretionary powers to vary bail conditions when it said at p.159–

"… The question is clearly one within the discretion of the Court, to be determined according to commonsense and justice".

My orders must therefore reflect this "commonsense and justice" whereby the Applicant continues to serve his electorate at the same time, attend to his duties as Governor, secure treatment to his eye and furthermore the Court to continue to maintain "contact" with the Applicant and vice-versa until such time the matter is determined.

In saying that, I am satisfied that the reasons advanced by the Applicant are necessary components of his employment as a politician. I am also satisfied that he has a recurring disability to his eye. I order that the bail conditions be varied, as follows:-

1(a)	Prior to travel overseas for medical treatment, the Applicant shall file an affidavit in the Registry, to which relevant original documentation will be attached, confirming the dates of treatment, the hospital/clinic where treatment will be rendered and the Applicant’s travel itinerary.

(b)	Prior to travel overseas or within PNG for business engagements or duty, the Applicant shall file an affidavit to which relevant original documentation will be attached, which documentation will confirm dates of travel overseas or within PNG, proof of these business engagements and duties, and the Applicant’s travel itinerary.

2.	The Applicant shall ensure that the travel itineraries referred to in clauses 1(a) and (b) herein, state the date of return to Papua New Guinea or Port Moresby.

3(a)	It is sufficient that the Applicant or his lawyer lodges the affidavits referred to in 1(a) and (b) herein, with the National Court Registrar, together with an explanatory cover letter three (3) clear days before the proposed travel whereupon the Registrar shall note on the Court file the period of the Applicant’s absence from Port Moresby, and the date of return to Port Moresby. 

(b)	The Applicant or his lawyer shall serve sealed copies of the same Affidavits upon the Office of the Public Prosecutor together with a copy of the letter addressed to the National Court Registry, made to the attention of the lawyer who has carriage of the matter. In the event the Public Prosecutor opposes the Applicant’s requests, he must immediately notify the Court and the Applicant’s lawyer, whereupon the Applicant’s lawyer shall then formally apply to the Court.

3.	During the period the Applicant will be out of Port Moresby, either overseas or within PNG, and subject to the itineraries referred to in paragraphs 1(a) and (b), the Applicant will not report to the Court (during the said period) but shall do so immediately upon the date of his return to Port Moresby or the next day before 10.00 am whereupon he shall report to the Court and when bail reporting conditions shall revert to reporting every Friday, between 8.00am and 4.00pm on a weekly basis.

4.	In light of the Applicant’s intended overseas travel on 7 April 2001 before close of business on Friday 6 April 2001, the Applicant shall lodge a security deposit of K5000.00 with the Court, which shall be held until after the completion of this matter. 

5.	In the event of a breach of any of the conditions herein, the Court will thereupon forthwith without notice to the Applicant, issue a Warrant for his arrest and shall immediately forfeit the deposit of K5000.00.

6.	The cash bail of K1000.00 remains.

7.	The Applicant shall not interfere with the State witnesses whilst on bail.

_____________________________________________________________________
Lawyers for the Applicant	:	Paraka Lawyers
Lawyers for the State		:	Office of the Public Prosecutor