N4242

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No.31 OF 2011

IN THE MATTER OF AN APPLICATION FOR BAIL PURSUANT
TO SECTION 42 (6) OF THE CONSTITUTION AND
SECTIONS 4 & 6 OF THE BAIL ACT

BETWEEN:

DOKTA MAIP
Applicant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Mt. Hagen & Minj: David, J
2011: 23 March & 4 April

CRIMINAL LAW – Bail application – refusal of bail by a judge of the National Court – second application cannot be made to the same judge or different judge of the National Court – fresh application must be made to the full bench of the Supreme Court – second application made to different judge of the National Court - no jurisdiction - application refused - Bail Act, sections 4, 6 & 13.

Cases cited:

Ex parte Arthur Gilbert Smedley [1978] PNGLR 156
Re Thomas Marcus (1999) N1931 
In the matter of application of Chin Loon Chan and Paidi Arendi (2007) SC858 
Michael Philip v The State (2007) N3217
Kuku Hayara v The State (2009) N3598
Application for Bail by Bobby Selan (2009) N3690 

Counsel:

Mr. Kumoro Sino, for the Applicant
Mr. Michael Ruari, for the Respondent

RULING

4 April, 2011

1. DAVID, J: This is an application for bail brought under section 42 (6) of the Constitution and sections 4 and 6 of the Bail Act by way of a bail application filed on 21 February 2011.

2. The applicant relies on the following affidavits:

1. Affidavit of Dokta Maip sworn and filed on 21 February 2011;
2. Affidavit of Kumoro Sino sworn and filed on 21 February 2011;
3. Affidavit of Dr. John McKup sworn and filed on 21 February 2011;
4. Affidavit of Dr. Wesong Boko sworn and filed on 21 February 2011;
5. Affidavit of Michael Makap sworn and filed on 21 February 2011;
6. Affidavit of Pastor Peter Toiya sworn and filed on 21 February 2011;
7. Affidavit of Konts Mark sworn and filed on 21 February 2011;
8. Affidavit of Cr. Joseph Rut sworn and filed on 21 February 2011;
9. Affidavit of Bakri Opup Namp sworn and filed on 21 February 2011;
10. Affidavit of Ngonom Ipta sworn on 16 March 2011 and filed on 22 March 2011;
11. Affidavit of Poning Kewa sworn on 16 March 2011 and filed on 22 March 2011;
12. Affidavit of Wan Kewa sworn on 16 March 2011 and filed on 22 March 2011.

3. The applicant, Dokta Maip aged 64 years, businessman was arrested, remanded in custody and then formally charged on 2 July 2010 for allegedly wilfully murdering one Sent Timbi at Pontipul village, Mt. Hagen in the Western Highlands Province on 26 June 2010 between 08:00 and 09:00 o'clock in the evening contravening section 299 of the Criminal Code. It is alleged that the applicant drove into Pontipul village in his vehicle, parked and several shots were fired from his vehicle at the deceased who was standing in front of a trade store killing him instantly. The applicant is currently remanded at the Baisu Correctional Institution.

4. On 9 December 2010, the applicant moved an application for bail at the Waigani National Court before Manuhu, J principally relying on the applicant's deteriorating medical condition and that his continued detention was going to adversely affect his business including loss of jobs by many employees as exceptional circumstances which was refused. His Honour's reasons for refusing bail are contained in his written judgment delivered on 10 December 2010. Basically his reasons were; firstly, there was an inconclusive medical report as to the medical condition of the applicant and that his medical condition was attributed to unsatisfactory jail conditions; and secondly, the applicant's business was capable of operating without the applicant.
 
5. The applicant now relies on similar grounds, but primarily submits that there has been a change of circumstances particularly in so far as the applicant's medical condition was concerned and unsatisfactory jail conditions on the basis of further medical reports obtained since his first application for bail was refused. The applicant claims that he has a history of suffering from high blood pressure (hypertension) and it has been aggravated by stress due to his confinement and unsatisfactory jail conditions including constant shortage of food and water. The applicant relies on Re Thomas Marcus (1999) N1931 and Application for Bail by Bobby Selan (2009) N3690.

6. The applicant also submits that his continued detention will adversely affect the operations of the Mt. Ambra Academic Christian Education School which he is the chairman of and the welfare of his family. Three witnesses for the respondent now support the application basically because the applicant was of old age it was further submitted. 

7. Mr. Ruari of counsel for the respondent opposed the application on the basis that; the offence committed consists of a serious assault using a firearm; it was necessary for the applicant's own protection for him to remain in custody; and that the applicant was likely to interfere with witnesses for the respondent if admitted to bail invoking section 9 (1)(c)(i) and (iii), (e) and (f) of the Bail Act. 

8. The Respondent relies on the following affidavits:

1.	Affidavit of Timbi Kera sworn and filed on 24 February 2011;
2.	Affidavit of Kuk Tiki sworn and filed on 24 February 2011;
3.	Affidavit of David Monpi sworn and filed on 24 February 2011;
4.	Affidavit of Timbi Kera sworn on 14 March 2011 and filed on 15 March 2011;

9. Before entering into any discussion of the merits or otherwise of the application, I need to consider whether I have the jurisdiction to hear and determine this application based on what is termed as change of circumstances.

10. A further application for bail after refusal can be made under section 13 of the Bail Act. Mr. Sino has not invoked that provision as a basis for his client's application. Section 13 reads:

"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."

11. Two differing views have been expressed in relation to the application of sub-section (2) of section 13 of the Bail Act. The case of Re Thomas Markus is often referred to as an authority which stands for the proposition that an unsuccessful applicant for bail can make a second application for bail before the same judge or a different judge of the National Court provided there is a change of circumstances: see also Ex parte Arthur Gilbert Smedley [1978] PNGLR 156. In Re Thomas Markus, Injia J, as he then was, said:

"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."

12. Cannings, J took that view in Application for Bail by Bobby Selan. His Honour said:

"6. …..I point out that the right to make a fresh 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). Gabi J expressed that view in Michael Philip v The State (2007) N3217. With respect, I prefer the view taken in Re Thomas Markus to that taken in Michael Philip's case. 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 interest of justice require otherwise.

7. …. The practical effect of the decision in Re Thomas Markus 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.

8. … 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 the circumstances; and
4 show how the change in circumstances is relevant."

13. In Application for Bail by Bobby Selan, the applicant was charged in connection with the July 2008 robbery of the Bank South Pacific branch at Madang. He was committed to stand trial on fourteen counts of kidnapping and one count of armed robbery. His alleged role was to provide accommodation at his residence in Lae for those who actually kidnapped bank staff and their families and robbed the bank. His first application for bail to the National Court was refused by Gavara-Nanu, J. The application was refused the second time because the applicant; failed to properly notify the court that bail had been earlier refused; did not provide the court with a copy of the reasons given for refusing bail; did not present evidence of a change in circumstances or show how the change in circumstances was relevant. 

14. The cases of Michael Philip v The State (2007) N3217 and Kuku Hayara v The State (2009) N3598 express the opposite view. They state that an unsuccessful applicant cannot go back to the National Court to make a fresh application on the basis of a change of circumstances. Instead, if he or she so desires, he or she must go direct to the Supreme Court. An application to the Supreme Court must be heard and determined by the full bench: see In the matter of application of Chin Loon Chan and Paidi Arendi (2007) SC858. 

15. At paragraph 13 of his judgment in Michael Philip, Gabi J said:

"Sections 6 & 7 reaffirm the right of a person to apply for bail at any time and impose an obligation on the court to consider an application for bail at the time it is made (see also s 42 (6) of the Constitution). They do not deal with how an application for bail is to be made. The procedure for bail is dealt with by s 13 of the Bail Act. The position is that where a person is refused bail by a magistrate he can apply only to a judge of the National Court, and where he is refused bail by a judge of the National Court he can only apply for bail to the Supreme Court. There is no provision in the Bail Act for an application to be made twice to the same bail authority nor is there a provision for appeal in bail matters. To re-apply to the same judge or a different judge of the National Court after refusal of bail is, to my mind, an abuse of process. I can find no basis for that position in law". 

16. With respect, I agree with His Honour's view entirely which approach was taken in Kuku Hayara by Makail, J because that to my mind appears to be the literal and ordinary meaning of sub-section (2) of section 13 of the Bail Act. If the legislature had intended that a fresh or second application could be made to the same bail authority whether it was to the same judge or a different judge of the National Court, it would have clearly stated so. Going back to the National Court to pursue another application for bail relying on change of circumstances as a basis for the application is therefore an abuse of process. That is what the applicant in the present case has done.

17. For the above reasons, I have no jurisdiction and will dismiss the application. 

__________________________________________
Sino & Company Lawyers: Lawyers for the Applicant
Acting Public Prosecutor: Lawyers for the Respondent