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State v Alim [2012] PGNC 303; N5312 (28 December 2012)

N5312

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 725 OF 2012

BETWEEN:

STATE
Applicant

AND:

MOHAMAD ABDUL ALIM
Respondent

Waigani: Hartshorn, J.
2012: 28th December

Application to travel out of the jurisdiction while on bail – s. 23 (1) and (2) Bail Act – whether urgent personal reasons established - whether court satisfied that applicant will return to Papua New Guinea

Counsel:

Mr. M. Philip, for the Respondent/Applicant
Mr. T. Ai, for the State

28th December, 2012

1. HARTSHORN, J: The applicant applies pursuant to s. 23 (1) and (2) Bail Act to leave Papua New Guinea for a temporary period to travel to Dhaka, Bangladesh to visit his sick father.

2. The applicant is presently on bail in respect of a charge of bribery under s. 97B (1) (b) Criminal Code. The penalty for that crime is a fine at the discretion of the court or imprisonment for a term not exceeding seven years or both.

3. The State opposes the application.

4. The applicant deposes that his father is sick and has just had a major operation, that he requires at least three months to go and visit his father and that he will pay K10,000 as a further surety. Annexed to his affidavit are copies of documents concerning the medical condition of his father.

5. A guarantor has deposed that two companies will give security of K20,000 each. This, together with the K 10,000 to be paid by the applicant, the K 10,000 already held by the State and the initial bail of K 1,500, is K61,500 that the State will hold if the application is granted.

6. In considering an application such as this, the court can grant the relief sought for urgent personal reasons, for a temporary period. Section 23 (2) Bail Act however is quite specific - permission shall not be granted under s. 23 (1) unless the court is satisfied that the applicant will return to Papua New Guinea for his criminal proceeding.

7. The State opposes the application on the basis that this applicant has not shown any real evidence that his father is in imminent danger such that a visit by the applicant is necessary. This, together with the fact that the applicant is only to give a further K10,000, is indicative of the applicant likely not returning to Papua New Guinea to face his criminal proceeding.

8. When regard is had to the documents concerning the applicant's father's condition, it indicates amongst others, that he was discharged on 29th September 2012 and that he had a burst appendix with an inflammatory growth at the caecum, the beginning of the large intestine. There is no evidence to the effect that the applicant's father's condition has become worse since his discharge. Indeed, there is no evidence as to his actual condition. A Mr. Mohamad Abdul Wahad deposes that the applicant's father is sick and went into operation, and was released from hospital, and that he has requested to see his son. This evidence does not shed any further light on the applicant's father's condition.

9. Given this evidence or the lack of evidence as to the applicant's father's condition since 29th September 2012 and that the evidence then did not indicate that his condition was serious, I am not satisfied that the applicant has properly shown to the court that he has urgent personal reasons for wanting to leave Papua New Guinea.

10. Even if this court was satisfied that the applicant had properly shown that he has urgent personal reasons, this court has to be satisfied that the applicant will return to Papua New Guinea for his criminal proceeding.

11. That two companies will provide K 40,000 is not to my mind, an indication that the applicant will return; neither are the depositions that a Mr. Hossain will ensure that the applicant will return and Mr. Hossain will hand in his passport. How can Mr. Hossain ensure the applicant's return and how does the handing in of his passport assist?

12. That the applicant is not a Papua New Guinea citizen, he is charged with a serious criminal offence, he is only willing to give a further security of K10,000, there is no evidence that his father is sick now, that his father was discharged from hospital approximately three months ago and the application is only made now, are all factors that lead me to the view that this court is not satisfied that the applicant would return to Papua New Guinea if he was given permission to leave.

13. The relief sought in the Amended Notice of Motion filed 21st December 2012 is refused.
_____________________________________________________________Korerua & Associates Lawyers: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the State