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Ning v State [2013] PGNC 218; N5378 (15 August 2013)

N5378

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CRAP. 198 of 2013

IN THE MATTER OF BAIL APPLICATION PURSUANT TO SECTION 13 (4) OF THE BAIL ACT

AUGUSTINE NING
Applicant

AND

THE STATE

Wewak: Geita AJ
2013: 15th August

CRIMINAL LAW- Practice and Procedure – Bail applications- Refusal of bail - National Court and Supreme Court – Legal principle of "stare decisis" observed – Sch 2.8 (1) Constitution – Further bail application available - Need to provide evidence of changes in both relevant and irrelevant circumstances to The Supreme Court- Section 13 (3) The Bail Act.

Cases Cited

Re Thomas Markus (1999) N1931
Re Bail Applications by Ruben Micah; Re Bail Applications by Bonny Solomon (2010) N4059
Re Augustine Ningi and The State SC.APP no.4 2012,
Re Augustine Ningi and The State MP 178 of 2012 (Unreported) 22 June 2012.

Counsel

Mr. Francis Fingu, for the applicant
Ms. Barbra Gore, for the State

15 August, 2013

DECISION

1. GEITA AJ: Augustine Ningi applied for bail the third (3) time around having been refused bail by Madang National Court on 22 June 2012 and Waigani Supreme Court on 10 May 2013.(Batari,Kariko,Murray JJ presiding).

2. The Bail Act gives effect to and regulates the constitutional right to bail found in Section 42 (6) Constitution:

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

3. The refusal of bail on two separate occasions within a space of 11 months was due to the following reasons: (1) no supporting affidavit was filed outlining the grounds upon which bail was sought in the National Court; (2) no exceptional circumstances were shown before the three Justices of the Supreme Court in Waigani.

4. All relevant documents and procedure set aside Mr Fingu sought directions at the outset of this application from this court in light of two failed bail applications by his client. Although Ms Gore was invited to comment on the issue she did not progress further as only directions were sought by the applicant.

5. The applicants previous bail application was refused by the National Court and Supreme under Section 13 (2) of the Bail Act. Injia J (as he was then) in Re Thomas Markus (1999) N1931 had this to say:

"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. I cannot say for certainty if there were indeed changes in both relevant and or irrelevant circumstances in this application as those evidence were not touched upon save to confirm that the applicant has complied with two of the four requirements set out in the Markus approach: He has notified the Court of the two earlier refusal of bail and provided the court with copies of written judgments.

7. Notwithstanding my discretionary powers to hear this application on its own merits in compliance with relevant provisions of the Bail Act and especially Section 42 (6) of the Constitution, I felt constrained by the legal principle of "stare decisis". During my short stint as a Judge and from my reading of other judgments on this subject, Judges appear to have varying views: unsuccessful applicants cannot go back to the National Court but must go straight to the Supreme Court under Section 13 (2) viz. "Where a person is refused bail he is entitled to apply for bail, immediately if he so desires, to the Supreme Court." The applicant has exhausted that avenue. The question is where to next?

8. For the time being I am not seized of jurisdiction and will not attempt to deliberate on this bail application. To do so otherwise would, borrowing the words of Cannings J, ...be creating a lot of confusion and doing a disservice to the legal doctrine of judicial precedents (also known as stare decisis) which is intended to be preserved under Schedule 2.8 (1) of the Constitution. (His Honour Cannings J in the case of Re Bail Applications by Ruben Micah; Re Bail Applications by Bonny Solomon (2010) N4059.

9. My considered view is that the applicant may still apply for bail before another Supreme Court but not before the National Court. Furthermore he should not be prevented from applying for bail at another Supreme Court as there still exists the presumption in favour of bail unless the interests of justice require otherwise. Such new application must be supported by evidence of changes in both relevant and irrelevant circumstances.

10. For the reasons outlined above, I would refrain from hearing the applicant's third bail application now before me.

_____________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State