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In re Application by Ruben Micah [2010] PGNC 78; N4059 (8 July 2010)

N4059

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 217 OF 2010

IN THE MATTER OF APPLICATIONS
FOR BAIL BY RUBEN MICAH, JOYCE MAIMA & BOBBY SELAN

AND

MP NO 218 OF 2010

IN THE MATTER OF APPLICATIONS
FOR BAIL BY BONNY SOLOMON, PETERSON ALLAN POPO,
KIA WARREN, JOHNNY GUMAIRA & DAMIEN INANEI

Madang: Cannings J
2010: 26 May, 8 July

CRIMINAL LAW – practice and procedure – applications for bail – Constitution, Section 42(6); Bail Act, Section 6 – application made to National Court after refusal of bail – whether applicant can show a change of circumstances warranting grant of bail.

Eight remandees each facing trial on one count of armed robbery and 14 counts of kidnapping applied to the National Court for bail, after spending periods of 17 months to two years in custody. Six of the applicants had been refused bail on previous occasions.

Held:

(1) A person who is refused bail by a Judge of the National Court may if there has been a relevant change in circumstances make a fresh application for bail to the same or another Judge of the National Court.

(2) The change in circumstances must relate to the reasons given under Section 9(1) of the Bail Act for refusing bail in the earlier application.

(3) It is incumbent on the applicant to notify the court of the earlier refusal of bail, provide the court with a copy of the reasons given for refusing bail, present evidence of a change in the circumstances and show how the change in circumstances is relevant.

(4) Here, the applicants previously refused bail failed to show how their change in circumstances (the extra period in custody since the last refusal of bail) was relevant. Their applications were refused for that reason.

(5) The applicants to whom bail had not previously been refused were refused bail as the circumstances in Sections 9(1)(a) and 9(1)(c)(ii) and (iii) apply and the date set for their trial is now only one month away.

Cases cited

The following cases are cited in the judgment:

Application by Bobby Selan (2009) N3690
Applications by Ruben Micah & Joyce Maima, MP No 417 of 2008, 15.10.08
Bernard Juale v The State (1999) N1887
Bernard Uriap v The State (2009) N3822
Bonny Solomon v The State, MP No 181 of 2009, 15.05.09
Fred Keating v The State [1983] PNGLR 133
In The Matter of Bail Applications by 61 Remandees of Boram Correctional Institution East Sepik Province (2006) N3801
Kuku Hayara v The State (2009) N3598
Michael Philip v The State (2007) N3217
Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022
Re Thomas Markus (1999) N1931

APPLICATIONS

These were applications for bail under Section 42(6) of the Constitution and Section 6 of the Bail Act.

Counsel

S Daniels, for applicant Nos 1 to 3
A Meten, for applicant Nos 4 to 8
A Kupmain, for the State

8 July, 2010

1. CANNINGS J: This is a ruling on applications for bail by eight people charged in connection with the July 2008 robbery of the Bank South Pacific branch at Madang. They have been committed for trial on 14 counts of kidnapping and one count of armed robbery. They have been in custody, mainly at Beon Jail, Madang Province, for periods of 17 months to two years. Six of them have had previous bail applications refused by the National Court.

2. Their trial was originally set to commence on 5 May 2010 but that date was vacated when the Public Prosecutor belatedly advised the Court that there were five other co-accused in custody at Bomana Jail, National Capital District, who would have to be transferred to Madang for the trial: Kito Aso, Don Aka, Elvis Bala Aka, Isabelle Kivare and William Kapis. A number of pre-trial hearings have since been held, most recently on 25 May 2010 when a new trial date was fixed as 10 August 2010. It is envisaged that there will be a joint trial of 15 co-accused: the eight bail applicants plus the five to be transferred from Bomana plus two others already on bail and residing in Madang (Jacob Okimbai and Colin Masilo).

3. The State opposes bail. As to the six applicants whose previous applications have been refused the State argues that they have not shown any change in circumstances to warrant bail being granted. As to the applicants who have not been refused bail, the State argues that their applications should be refused for similar reasons others were refused.

4. The applicants' details are set out in the following table.

I will deal with each application separately.

NO 1: RUBEN MICAH

5. As a previous bail application was refused by the National Court and he has not applied for bail to the Supreme Court under Section 13(2) of the Bail Act, he must show a change in circumstances and meet the requirements spelt out by Injia J as he then was in Re Thomas Markus (1999) N1931:

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 Section 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 Section 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.

6. As I said in Application by Bobby Selan (2009) N3690, the right to make a fresh bail application to the National Court – rather than going to the Supreme Court under Section 13(2) – is not expressly conferred by the Bail Act. Some Judges have taken the view that there is no such right and that an unsuccessful applicant cannot go back to the National Court – they must go straight to the Supreme Court under Section 13(2), which states:

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.

7. Gabi J expressed that view in Michael Philip v The State (2007) N3217, and the same strict approach was recently taken by Makail J in Kuku Hayara v The State (2009) N3598.

8. With respect, I prefer the view taken in Re Thomas Markus to that taken in Philip and Hayara. I think it more effectively implements the policy in Section 42(6) of the Constitution that there is a presumption in favour of bail and that a person detained in custody has a right to bail unless the interests of justice require otherwise.

9. The practical effect of the Markus approach is that the change in circumstances must relate to the reasons given under Section 9(1) of the Bail Act for refusing bail in the earlier application. This means that it is incumbent on an applicant who has earlier been refused bail to:

1. notify the court of the earlier refusal of bail;
   
2. provide the court with a copy of the reasons given for refusing bail earlier;
   
3. present evidence of a change in circumstances; and
   
4. show how the change in circumstances is relevant.
   

10. Ruben Micah has complied with the first three requirements. He has notified the Court of the earlier refusal of bail and provided the Court with a copy of Kirriwom J's written judgment of 15 October 2008, which explains in detail the grounds on which bail was refused. He has also presented evidence of a change in circumstances: he has been in custody without trial for a further period of 20 months since bail was first refused.

11. His counsel, Mr Daniels, submits that this is a relevant change in circumstances as the applicant has been in custody for a considerable period and is being denied his right under Section 37(3) of the Constitution to a fair hearing within a reasonable time. The State is prohibited from detaining the applicant in custody for an indefinite period but that is what is happening as the first trial date of May 2010 has been vacated due to a lack of diligence by the State and there is still uncertainty as to whether the trial will go ahead in August 2010. Mr Daniels also submitted that the extra time spent in custody since refusal of the earlier bail application should be regarded as a relevant change in circumstances in light of Section 7 (bail on adjournment) of the Bail Act, which states:

Subject to Section 4, where a person is in custody in connexion with any proceedings, including proceedings for committal for trial or sentence in the National Court, the court shall, on each occasion that it adjourns the proceedings before conviction, consider and accordingly grant or refuse bail to that person in accordance with section 9.

12. Mr Daniels refers to the decision of Salika DCJ in Bernard Uriap v The State (2009) N3822 to support the argument that extra time spent in custody without trial after refusal of a bail application should be regarded as a relevant change in circumstances, in light of the Court's duty under Section 7 of the Bail Act to regularly consider granting or refusing bail. Bail should therefore be granted to Ruben Micah in the interests of justice, Mr Daniels submitted.

13. If this issue had not been addressed in previous decisions of the Court, I would be inclined to uphold Mr Daniels' submission. I tend to think that if a person applies for bail and is refused once and then comes back with a new application after spending a further 20 months in custody without trial, that should be regarded as a significant change in circumstances. I think it might serve the interests of justice for the new application to be dealt with on its merits by the National Court, without requiring the applicant to prove that the change in circumstances relates to the grounds on which bail was previously refused or to apply to the Supreme Court for bail. However, though it has not been dealt with by the Supreme Court, this issue has been addressed by the National Court on previous occasions. Though I am not bound by previous National Court decisions (the National Court is not bound by its previous decisions of law by virtue of Schedule 2.9(2) of the Constitution) they are of high persuasive value. I feel that if I were to take the approach being contended for by Mr Daniels (whose submissions were endorsed by Mrs Meten, counsel for five other applicants) I would be making a decision too far out of line with existing National Court authority. There are already two approaches being taken to the question of the rights of an applicant who has been refused bail by the National Court. The first approach, advanced in Markus's case, allows the applicant to make a fresh application to the National Court and lays down four requirements that must be satisfied, most importantly that the applicant prove a change in relevant circumstances. The second approach, taken in cases such as Philip and Hayara, prohibits applicants going back to the National Court and requires them to make any fresh application to the Supreme Court. If I were to uphold Mr Daniels' submissions I would be taking a third approach. I would also be creating a lot of confusion and doing a disservice to the legal doctrine of judicial precedent (also known as stare decisis) which is intended to be preserved under Schedule 2.8(1) of the Constitution. Taking this approach might also lead to judge shopping. So I will not take the third approach. I will take the first approach, as, for the reasons outlined earlier, I think it is preferable to the second approach.

14. That means it is incumbent on Ruben Micah to show how his change in circumstances is relevant to the grounds on which his first bail application was refused. Kirriwom J refused bail in October 2008 for three reasons: use of firearms in committing the alleged offence, likely interference with State witnesses by the applicant, and the proceeds of the robbery had not been recovered. The change in circumstances relied on by the applicant – the extra 20 months spent in custody without trial – does not relate to any of the grounds on which bail was previously refused. It is an irrelevant change in circumstances. Ruben Micah has failed to comply with the fourth requirement spelt out in the Markus's case.

15. His bail application will be refused on the ground that bail has already been refused by the National Court and he has failed to show a change in relevant circumstances since the earlier refusal of bail.

NO 2: JOYCE MAIMA

16. She is in the same position as Ruben Micah. She was refused bail by the National Court in October 2008 on three grounds. She has spent a further 20 months in custody without trial but that change in circumstances does not relate to the grounds on which bail was earlier refused. Her application will be refused on the ground that bail has already been refused by the National Court and she has failed to show a change in relevant circumstances since the earlier refusal of bail.

NO 3: BOBBY SELAN

17. He is in a similar position to Ruben Micah and Joyce Maima. He has been refused bail by the National Court on two occasions. He has spent a further 11 months in custody without trial since the last refusal of bail but that change in circumstances does not relate to the grounds on which bail was earlier refused. His application will be refused on the ground that bail has already been refused by the National Court and he has failed to show a change in relevant circumstances since the earlier refusal of bail.

NO 4: BONNY SOLOMON

18. He is in a similar position to Ruben Micah, Joyce Maima and Bobby Selan. He has been refused bail by the National Court on two occasions. He has spent a further nine months in custody without trial since the last refusal of bail but that change in circumstances does not relate to the grounds on which bail was earlier refused. His application will be refused on the ground that bail has already been refused by the National Court and he has failed to show a change in relevant circumstances since the earlier refusal of bail.

NO 5: PETERSON ALLAN POPO

19. His previous bail application was withdrawn so there has been no refusal of bail and his present application can be determined on its merits. He is not charged with wilful murder or treason so he enjoys a presumption in favour of bail under Section 42(6) of the Constitution, which states:

A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

20. The interests of justice will only require refusal of bail if the Court is satisfied that one or more of the circumstances set out in Section 9(1) of the Bail Act applies. Section 9(1) states:

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 is unlikely to appear at his trial if granted bail; or

(b) that the offence with which the person has been charged was committed whilst the person was on bail; or

(c) that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of—

(i) a serious assault; or

(ii) a threat of violence to another person; or

(iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive; or

(d) that the person is likely to commit an indictable offence if he is not in custody; or

(e) it is necessary for the person's own protection for him to be in custody; or

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

(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property; or

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act against the person in custody; or

(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody; or

(j) that the alleged offence is one of breach of parole.

21. Here, I am reasonably satisfied that the circumstances in Sections 9(1)(a) and 9(1)(c)(ii) and (iii) apply. In forming that view I have taken account of Section 9(2) of the Bail Act, which states:

In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.

22. As to Section 9(1)(a) – the applicant is unlikely to appear at his trial if granted bail – I have taken into account that Peterson Allan Popo is from the Chuave District of Chimbu Province and lives in Lae. He deposes in his supporting affidavit that he has no relatives in Madang and wants to reside in Lae with his family if he is granted bail. His two proposed guarantors appear to be relatives – not people who are well known as reputable and reliable.

23. As to Section 9(1)(c)(ii) and (iii), it is not seriously disputed that the alleged acts constituting the offence in respect of which the applicant is in custody consisted of threats of violence to a number of people and that firearms were involved.

24. However, even though I am satisfied on reasonable grounds as to two of the considerations in Section 9(1) of the Bail Act, I am not obliged to refuse bail. I can still as a matter of discretion decide in the interests of justice to grant bail (Fred Keating v The State [1983] PNGLR 133; Bernard Juale v The State (1999) N1887). In exercising that discretion I can look outside the considerations in Section 9(1). In particular, as I pointed out in In The Matter of Bail Applications by 61 Remandees of Boram Correctional Institution East Sepik Province (2006) N3801, the Court should consider the conditions in which an applicant is being detained (and whether those conditions comply with the human rights provisions of the Constitution) and the length of time in custody (the human rights provisions of the Constitution that give effect to the principle that 'justice delayed is justice denied' must be considered). The worse the conditions of detention and the longer the period in custody the more likely it is that bail will be granted.

25. The applicant says the conditions in the remand compound at Beon Jail are poor. He says that the cell is overcrowded and that there is a shortage of food and that diseases such as scabies, typhoid and malaria are spreading amongst the remandees. No evidence has been provided in support of this assertion and my most recent VJ inspection of Beon Jail coupled with the lack of recent complaints of such matters by the remandees suggest that it has little substance.

26. As to the period in custody, which is almost two years, this is inordinately long, and it favours the granting of bail. Against that factor, however, must be weighed the fact that the new date for the trial is now only one month away. This is the fact that ultimately persuades me that it is not in the interests of justice to grant bail.

27. His application will be refused on the grounds that the circumstances in Sections 9(1)(a) and 9(1)(c)(ii) and (iii) apply and that the date set for his trial is now only one month away.

NO 6: KIA WARREN

28. He is in a similar position to Peterson Allan Popo. His application will be refused on the grounds that the circumstances in Sections 9(1)(a) and 9(1)(c)(ii) and (iii) apply and that the date set for his trial is now only one month away.

NO 7: JOHNNY GUMAIRA

29. He is in a similar position to Ruben Micah, Joyce Maima, Bobby Selan and Bonny Solomon. He was refused bail by the National Court in October 2009. He has spent a further nine months in custody without trial since the last refusal of bail but that change in circumstances does not relate to the grounds on which bail was earlier refused.

30. His application will be refused on the ground that bail has already been refused by the National Court and he has failed to show a change in relevant circumstances since the earlier refusal of bail.

NO 8: DAMIEN INANEI

31. He is in a similar position to Johnny Gumaira. He was refused bail by the National Court in September 2008. He has spent a further 22 months in custody without trial since the last refusal of bail but that change in circumstances does not relate to the grounds on which bail was earlier refused. His application will be refused on the ground that bail has already been refused by the National Court and he has failed to show a change in relevant circumstances since the earlier refusal of bail.

WHAT NEXT FOR THE APPLICANTS?

32. Although I am refusing all eight applications, it remains a matter of concern that the applicants have been in custody for considerable periods without trial. If their trial does not go ahead as planned next month I would suggest that they consider applying to the Supreme Court for bail under Section 13(2) of the Bail Act.

33. Alternatively they might consider lodging formal complaints to the National Court under Section 42(5) of the Constitution, a procedure that was adopted by a group of remandees in Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022. Section 42(5) states:

Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained—

(a) the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and

(b) unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.

34. Another option would appear to be to file an application to the National Court or the Supreme Court under Section 57 of the Constitution for enforcement of their right to amongst other things a fair trial within a reasonable time under Section 37(3) of the Constitution.

35. Formal applications to be brought to trial might also be considered under Section 552 (right to be tried) of the Criminal Code, which states:

(1) In this section, "place of trial" means the place appointed under the National Court Act for sittings of the National Court at which the hearing of a charge of an indictable offence is to take place.

(2) A person who has been committed for trial or sentence or against whom the Public Prosecutor has laid a charge under Section 526 may make application at any sittings of the National Court to be brought to his trial.

(3) If no indictment has been presented against the applicant—

(a) where the application is made at a sittings of the National Court at the place of trial—before the end of the sittings at which the application is made; or

(b) where the application is made at a sittings of the National Court at some other place—before the end of the next sittings of the court at the place of trial,

the court shall, on application by him, admit him to bail on such terms as the court thinks proper, unless the court is satisfied that there are special reasons why the application should be refused.

(4) If—

(a) a person has made an application under Subsection (2); and

(b) at the end of the sittings of the National Court at his place of trial next following the application—

(i) no indictment has been presented against him; or

(ii) the court is satisfied that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case,

he is entitled to be discharged.

ORDER

36. The application for bail of each applicant is refused on the following grounds:

Ordered accordingly.

____________________________________________
Daniels & Associates: Lawyers for applicant Nos 1-3
Public Solicitor: Lawyer for applicant Nos 4-8
Public Prosecutor: Lawyer for the State