N6191

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 338 OF 2015

BETWEEN:

JUSTIN PARKER

AND:

THE STATE

Waigani: Salika, DCJ
2015: 09, 11 September

PRACTICE AND PROCEDURE – Bail Application – National Court – Refusal by one Judge of the National Court – Another bail application before another National Court Judge - Bail Application under s.13(1) of the Bail Act – s.13 of the Bail Act is relevant – National Court has power to hear a bail application under s.13(4) of Bail Act even if refused earlier by other National Court Judges

Preliminary Issue

Whether the National Court has jurisdiction to hear another application for bail where bail has been refused earlier by the National Court.

In relation to this issue I start off first with S42 (6) of the Constitution which states:

 42. LIBERTY OF THE PERSON.
 (6)	 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.

The above provision means an applicant for bail is entitled to bail at all times after arrest or detention. This means when a person is arrested or detained and asks for bail, that person should be readily granted bail unless the interests of justice otherwise requires.

Counsel:

Mr E Sasingan & Mr J Kolowe, for the Applicant
Mr.J Apo, for the State

11th September, 2015

11th September, 2015 

1.	SALIKA DCJ: In this case the applicant is charged with wilful murder. This means that s.4 of the Bail Act comes into play in that only the National Court or in some cases the Supreme Court can grant bail. Where the person is charged with other offences s.5 of the Bail Act comes into play.

2.	Section 6 of the Bail Act says:

6. Application for bail may be made at any time.
(1)	An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.
(2)	A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.
(3)	Subject to Section 4, the court shall grant or refuse bail in accordance with Section.

This provision is clear; an application for bail may be made to a court at any stage of the proceedings. This provision puts into effect s.42(6) of the Constitution. Furthermore it encapsulates the notion of presumption of innocence until proven guilty according to law under s.37(4) of the Constitution.

3.	As bail is a right, it should not be refused unless at least one of the considerations under s.9 of the Bail Act is present. However even where a s.9 consideration is present the case law precedents show that, the Court still has a discretion whether or not to grant bail. The applicant must show why his detention in custody is unjustified: See Re: Fred Keating (1983)PNGLR 133 and Re: Kou Dua(1984) PNGLR 22.

4.	This application was made after it was earlier made before Manuhu J but was refused. This therefore is a second application under s.13 of the Bail Act. Section13 of the Bail Act says:

PART IV.—PROCEDURE ON REFUSAL OF BAIL
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.

5.	I have now re-read my own decision in Re: Bail Application by Bernard Uriap (2009) N3822. In that decision I ruled that a person refused by the National Court should apply to the Supreme Court with s.13(2) of the Bail Act and that he could apply to a single man Supreme Court first and if refused then to the full court of the Supreme Court. I was corrected by the Supreme Court in a later application to that court that an applicant for bail can only go to the full court of the Supreme Court and that a single Supreme Court has no jurisdiction to determine an application for bail. The Supreme Court said that s.13(2) reference to Supreme Court is a reference to the full court of the Supreme Court and not a single man Supreme Court.

6.	I also fell into error in dealing with the Bernard Uriap application when I said that a National Court hearing a bail application under s.13(1) of the Bail Act must be after a magistrate had refused bail and if refused by the National Court he should apply to the Supreme Court. I now realised that I did not look at s.13(4) Bail Act which I have now done. Section13(4) gives an applicant for bail another opportunity to reapply for bail before the same judge or a different judge before the National Court. I therefore correct myself on this point that an applicant refused bail in the National Court may reapply for bail before the same judge or a different judge. This decision will now be consistent with the decisions of the Chief Justice in Re: Thomas Marcus (2009) N1931, Cannings J in Re: Bobby Selan (2009) N3690 and Kariko J in Re: Bernard Uriap(2009) N3444.

7.	Having now corrected my previous view I go to this application. The applicant in this matter applied for bail before Manuhu J on 15 June 2015. His honour refused bail on the basis that the assault on the deceased was a severe one, thus a consideration under s.9 of the Bail Act was established. The factual circumstances of the case are stated in Manuhu Js decision.

8.	The facts as found by Manuhu J are:

1.	The applicant is a PNG citizen from the Minj District of Jiwaka Province. He is the Managing Director of Golden Valley Enterprises Limited and divides his time between Lae and Port Moresby.

2.	On Sunday 7 June 2015 the applicant contacted the police in Port Moresby from Lae concerning an alleged assault involving an employee Lapan Nason who he had learned was in hospital.

3.	On Monday 8h June Mr Lapan died in Port Moresby hospital. On Tuesday 9 June 2015 the applicant travelled from Lae to Port Moresby to attend a police interview scheduled for 10 June, 2015.

4.	After the applicant arrived in Port Moresby the interview was postponed at the request of the Police until Thursday 11 June, 2015.

5.	The applicant duly attended the police interview following which he was arrested and charged with wilful murder contrary to s.299(i)(a) of the Criminal Code Ch. No 262. The applicant denies the charge against him.

6.	The applicant has been detained in the Police cells at Boroko Police Station since being charged. The applicant has appeared before the Committal Court for arraignment. 

9.	The applicants new application for bail is supported by the affidavits of the applicant himself, Dr. Paul Mondia with a medical report, a health worker Gibson Darius at Bomana Clinic, Raul Aikibun Parker, the wife of the applicant, Dr. Pratima Singh of Marine Parade, South Pact, Queensland Australia and Edward Sasingian.

10.	The affidavits in general say that firstly the applicant after being incarcerated at Bomana Correctional Services has developed hypertension. The pertinent part of Dr. Paul Mondia's medical report dated 18 August 2015 says:

"On examination most of his systems were normal except for his blood pressure was elevated to 170.110 mmHg.

Hypertension is a silent disease. It is directly related to time, the situations and the changes in the mood of an individual. Normal blood pressure at rest ranges from 100 to 140 mmhg systolic and 60 – 90 diastolic. Hypertension is classified as either primary or secondary. About 90 to 95 % are classified as primary meaning that no causes can be found. About 5 – 10% are classified as secondary meaning that the causes can be diagnosed and managed. If left unattended, hypertension can lead to more serious complication."
 
11.	The applicant appears to be depressed and as a result his blood pressure has escalated because of his wife's medical condition, whose condition is covered in his wife's own affidavit and the affidavit of her doctor Dr. Singh in South Port, Australia. His wife's medical condition was detected in July of 2015. She is said to have distal cancer and is undergoing treatment including chemo and surgery. Her chemo would be for 9 weeks and weeks rest and then surgery. She will probably have surgery in November as Dr Singh's report is dated 1 August 2015. The report by Dr Singh does not say state the cause of the wife's medical condition.

12.	Dr Paul Mondia's report suggests that the applicant's medical condition is attributed to his wife's medical condition and his own circumstances that someone had died possibly or allegedly from his actions. To face a charge of wilful murder, a very serious criminal charge is always going to affect a person physically, mentally, spiritually and socially. The facts suggests the alleged wilful murder occurred while the applicant was under the influence of alcohol.

13.	The applicant relies on his own medical condition and the medical condition of his wife as the new circumstances which I must now consider whether or not to grant bail. I have already read the pertinent parts of Dr Mondia's medical report. His report also says that "Mr Parker does not have a history of depression illness." It is obvious from the report that the hypertension or the high blood pressure has come about as a direct result of this incident. The recommendation is for the applicant to be granted bail so he can communicate freely with his family and seek medical care.

14.	The doctor does not say in his report if his blood pressure or the hypertension will ease if he is out on bail. The mere thought of the alleged killing of a man – which he probably now regrets will continuously play in his mind whether he is in custody or out on bail. I therefore do not see any cure for the high blood pressure whether he is in custody or outside.

15.	While this is a new circumstance warranting a new application, I cannot understand why he cannot be attended to by Dr Mondia and others while in custody. In Re: Keating v The State the applicant Keating was charged with Wilful Murder. The Court refused bail. In Bernard Juali v The State. He too was charged with Wilful Murder. He too had similar health and family issues. The court refused him bail. Dr Yasause also with similar issues on a charge of wilful murder. Dr Yasause had a sick wife and children. His wife died while he was in custody. The court refused bail.

16.	The circumstance the applicant is in now is self inflicted. This is going to affect his wife and his children who had nothing to do with what he did. The applicant has brought the high blood pressure problem on himself. He can still be treated by Dr Mondia while in custody. Dr Mondia treated him while he was in custody. This is the age of mobile phone. He can easily communicate with his family upon request to do so from the Correctional Service at the jail. He can call from a mobile phone while in custody.

17.	I have read the affidavit of the wife of the deceased and the attempts at compensation and the affidavit of Dr Usurup at the attempts of middleman to be involved in brokering some compensation. I am worried with these under ground moves and currents as to what might happen more so whether these moves are designed to interfere or pervert the cause of justice. The safety of the only State Witness may also be jeopardised. I have serious concerns on those matters if the application was granted bail. In these day and age communication by mobile phone is easy. While the States only witness is now resident in Kavieng, communication is still easy. Accordingly, in the interest of justice, I refuse bail.
___________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State