N6236

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (APP) NO. 234 OF 2013

In the Matter of an application for Bail Variation pursuant to Section 23 of the Bail Act Chapter 340

BETWEEN:

PETER ROBERT SHARP
 Applicant

AND:

THE STATE
Respondent 

Kokopo:   Anis AJ
       2015: 16 & 17 December

CRIMINAL LAW – Bail Act Chapter No. 340 - Practice and Procedure – Section 23 of the Bail Act – permission to leave country - whether intention to see grand-daughter for the first time meets the 'urgent personal reason test' - other requirements/consideration noted - discretionary power of the court discussed - Section 23(1) discretionary whereas Section 23(2) is mandatory and failure to comply with the latter is fatal - applicant satisfied Section 23(2) and nearly all requirements stipulated under Section 23(1) except the 'urgent personal reason test' - whether that is sufficient - application granted

Cases Cited:
In the Matter of the Bail Act 1977 - Application by Arthur Gilbert Smedley [1978] PNGLR 156
The State v. Mohamad Abdul Alim(2012) N5312
XueZhufu Dickson v. The State (2012) N4581

Counsels:
Mr Rangan, for the Respondent
Ms Marubu, for the Applicant

RULING

17th December, 2015

1.	ANIS AJ:  The Applicant, pursuant to his Notice of Motion filed on 14 December 2015, has applied under Sections 20 and 23 of the Bail Act Chapter No. 340 (the Bail Act) to vary his bail conditions and for permission to travel overseas.
2.	He presently faces two charges, that is, for manslaughter of one Ainie Francis and one hundred and sixty one (161) others under Section 302 of the Criminal Code Act Chapter No. 262 (Criminal Code), and secondly for sending an unworthy ship into sea under Section 331(1)(a) of the Criminal Code.
3.	The motion was heard on 16 December 2015 and the Court reserved its ruling to 1:30pm today for deliberation.
4.	As a preliminary point, I asked Counsel Ms Marubu for the Applicant, to state the precise provision under the Bail Act which her client would rely on, that is, whether her client would be applying for a bail variation under Section 20 of the Bail Act or whether her client would be seeking permission to leave the country under Section 23 of the Bail Act.  Ms Marubu submitted that her client's intention was to seek permission from the Court to travel overseas.  In the end Ms Marubu conceded that the appropriate provision to rely on in the application was Section 23 of the Bail Act.
5.	In my view, the correct provision for this application is indeed Section 23.  I was satisfied and allowed Counsel to proceed.
6.	The motion seeks the following:
(i)	That the Applicant be granted leave to leave this jurisdiction for Australia on personal reasons as per the grounds set out in the Applicant's Affidavit in Support.
(ii)	That his passport be released by the Assistant Registrar upon the grounds set out in the Applicant's Affidavit in Support.
(iii)	That the requirement for the applicant to sign in at the District Court Registry on Mondays vary for the duration of his stay overseas and resume upon his return.
(iv)	Such other or further Orders this Honourable Court deems just and appropriate.
7.	In support, the Applicant filed and relied on his own Affidavit which is dated 11 December 2015.  It was filed on 14 December 2015.
8.	The reason given by the Applicant for wanting to travel overseas, which is stated in his Affidavit, was as personal one which was that he wanted a chance to get to see for the first time his first grand-daughter who was only born this year and who would be travelling over to Sydney from London with her parents, the mother who happens to be the Applicant's daughter.
Issues
9.	They are:
(i)	whether the personal reason provided (which is to visit a grand-daughter in Sydney Australia) is an "urgent personal reason" as required under Section 23(1) of the Bail Act; and
(ii)	If the Court finds against the Applicant in regard to the first issue, whether the Court should proceed straight to dismiss the motion, or whether the Court should also take into account other aspects, requirements and considerations collectively, before it should exercise its discretion whether it be in favour of or against the Applicant.
Law-Case law
10.	Section 23 of the Bail Act states:
23.	Permission to leave the country in certain cases.
(1)	Where for urgent personal reasons or by reason of his occupation a person granted bail in relation to a proceeding wishes to leave the country for a temporary period before the commencement or conclusion of that proceeding, he may, after reasonable notice to the other party, apply to the National Court or Supreme Court for permission to do so.
(2)	Permission shall not be granted under Subsection (1) unless the court is satisfied that the person will return to Papua New Guinea for the proceeding.
(3)	A permission granted under this section may be subject to conditions.
(4)	A person may apply for permission under this section at the same time that he applies for bail.
(5)	Where permission is granted under this section, a note to that effect shall be endorsed on the copy of the bail certificate held by the person granted bail.
(Underlining is mine)
11.	It is not hard to see the conditions that are stated under Section 23 of the Bail Act.  Some of them have been identified by the Court in an un-reported case which is the case of XueZhufu Dickson v. The State (2012) N4581.
12.	Kangwia AJ as he then was held these at page 6 of his ruling:
10.     Before an application for permission to leave the country is mounted an applicant must satisfy the criteria under s. 23 (1) and they seem to be these: 
First, the applicant must show that his reasons for permission to travel are urgent reasons either personal or related to his occupation. Second, he must give notice to the other party in the proceedings. Third, there must be a pending matter in court that involves the applicant.
11.     These three criteria are prerequisites to an application for permission from the court. After meeting the prerequisites, the applicant must then satisfy the court with the requirement under s. 23 (2) that he will return to the country for the proceeding.
13.	I think there are other conditions, things or practical factors which a National Court could also take into account when faced with such an application.  For example one that comes to mind may be the distance between Papua New Guinea and the place where an applicant intends to travel to.  Another factor that also comes to mind is whether the country in which an applicant intends to visit shares or have extradition arrangements or treaties with Papua New Guinea so that in the event that the Applicant fails to return, there is a process that is in place for him to be extradited back to Papua New Guinea.
14.	In Xue's case, the Accused was charged with one count of attempted murder.  The crime carried a maximum penalty of life imprisonment.  The Accused had been out on bail for nearly two years and it was only within months towards his criminal trial that he filed his application for permission to travel out to China for a fixed period of 40 days.  His reason for travel was that he wanted to visit his wife and children.  He said he had not seen them for two years.  He also said one of his children was sick.
15.	The Prosecutor objected strenuously and gave various reasons why the Court should refuse the Accused permission to travel.
16.	The Court was satisfied with the reasons provided by the Prosecutor and rejected the Accused person's reason for wanting to travel, and it held at page 6 and 7 of its ruling these:
14.    The question that arises is, would his reason fall into the category of satisfying the prerequisite of an urgent family reason to warrant the launch of an application? In my view I would not answer it in the affirmative. He has deposed nothing in his affidavit about the welfare of his family apart from one of the child being sick. He has failed to demonstrate that an urgency existed that warranted the application in the first place.
15.     Urgent personal reasons may be many and varied but in my view the need to obtain life threatening medical treatment not available in this country or to attend the funeral of a family member would fall into the category of urgent personal reasons. Even then it may not adequately satisfy the court that an applicant would return.
17.	The Court dismissed the application.
18.	During presentation of submissions by counsels in relation to the present motion, I referred to an un-reported case which is the case of The State v. Mohamad Abdul Alim (2012) N5312.
19.	In that case, the Plaintiff applied under Section 23(1) and (2) of the Bail Act to travel overseas to Dhaka, Bangladesh to visit his sick father.  He was released on bail on a charge of bribery under Section 97B (1) (b) of the Criminal Code.  The crime carried a maximum penalty of seven years.  
20.	There was stiff opposition by the Prosecution.  It said the Accused did not disclose any real evidence to show that his father was in any imminent danger of dying.  The evidence disclosed showed that although the applicant's father had suffered a burst appendix with an inflammatory growth in his large intestine, he was treated and discharged from the hospital and there was no evidence disclosed after that to show his father's current medical condition.
21.	Justice Hartshorn held these at page 3 of his ruling:
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.
22.	Justice Hartshorn went on at pages 3 and 4 of his ruling and held these:
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.
23.	The Court refused the Applicant permission to travel overseas.

Summary of law
24.	Looking back at Section 23(1) and (2) of the Bail Act and also at the two cases discussed above, I come to the following conclusions:
(i)	Section 23(1) has a number of situations or considerations stipulated therein as I had pointed out above, that is, for one to look and to try to fulfil or qualify under, and the use of the term "may" therein I think makes the subsection open to interpretations or that it is left to the Court to expound upon when considering an application that is made under the Section.
(ii)	Section 23(2) however is mandatory in that if the Court is not satisfied that an Applicant will return back to Papua New Guinea to face pending charge or charges that are laid against him or her, the Court is obliged to and must refuse the application.  In my view, there is no room for application of discretion here; note the use of the term "shall" therein.
Present Case
25.	At paragraph 6 of the Applicant's Affidavit, he deposes as follows:
"6.	My reason for travelling is personnel (personal).  I intend to travel to Sydney, Australia to meet my first granddaughter for the first time."
26.	The Applicant annexed a copy of a letter dated 27 November 2015 from her daughter which appears to confirm his reason for wanting to travel.
27.	At paragraph 7, the Applicant states:
"7.	I therefore intend to travel out on Sunday 27th of December 2015 and return on Wednesday 30th of December 2015 and thus seek leave to vary my bail."
28.	It is quite clear that the Applicant simply gives a personal reason for wanting to travel.  He does not state anywhere in his Affidavit that his travel was urgent or give reasons why his reason can be regarded as an urgent personal request.
29.	I note that in Court and despite repeated requests by me to Counsel, Ms Marubu did not at first make submissions on whether the Applicant's reason can be regarded as urgent.  It was only after the Court drew Counsel's attention to the issue that led Counsel to respond.
30.	But even so, it was obvious that there were no reason backed up by evidence to show that the Applicant's reason was or would be regarded as an urgent personal reason or request that would warrant him to travel to Australia.
31.	Strictly speaking, to travel overseas so that one can visit his grand-daughter cannot be or constitute an urgent reason.  If for example, the Applicant's grand-daughter is terminally ill or is dying, that may be regarded as an urgent personal reason for the Applicant to travel overseas to visit her.
32.	I am therefore not convinced that the Applicant has satisfied 'a part' of Subsection (1) of Section 23 of the Bail Act.  This Court finds that the Applicant has failed to demonstrate that his personal reason was urgent.
33.	Now I deliberately used the phrase 'a part' of Subsection (1) because from my discussions on the particular provision above, I stated other requirements or conditions as well.
34.	Let me restate Section 23(1):
(1)	Where for urgent personal reasons or by reason of his occupation a person granted bail in relation to a proceeding wishes to leave the country for a temporary period before the commencement or conclusion of that proceeding, he may, after reasonable notice to the other party, apply to the National Court or Supreme Court for permission to do so.
(Underlining is mine)
35.	Except for urgent personal reasons (which the Court has now ruled against the Applicant), the Applicant appears to have met the other conditions as underlined above.
36.	I will discuss them as follows: It is not an issue that the Applicant's charges are pending hearing here in Papua New Guinea.  Secondly, the Applicant plans to leave the Country for a short time, that is, two full days from 28 December 2015 and 29 December 2015 because he plans to travel to and back on 27 December and 30 December 2015.  This is all deposed to in his Affidavit including his travelling itinerary which is also annexed as Annexure B to his Affidavit.  And thirdly, there is no issue with the Applicant giving reasonable notice to the Prosecution.  The Prosecution was present in Court at the hearing of the motion. 
37.	Ms Marubu's main or most of her submissions relate to the requirements under Subsection 2 of Section 23.  She submitted that there was real likelihood that the Applicant will return back to Papua New Guinea to face the charges that are laid against him.  I must say that I was persuaded by Ms Marubu's submission on point.
38.	For the record, Ms Marubu referred to and covered the Applicant's reasons which were stated at paragraph 8 of his Affidavit.
39.	These reasons are important and for completeness, I will restate them here as follows: 
"8.	I believe that I am not a flight risk and that I have every reason to come back to the country due to the following factors;
(a)	I have lived in PNG since January 1971.
(b)	I have lived in Rabaul, East New Britain Province since 1976.
(c)	I do not have a permanent address anywhere else in the world apart from my home in Rabaul 2/22nd Street, Rabaul, East New Britain Province.
(d)	I am married to a Papua New Guinea woman and my last born son is a Papua New Guinea citizen.
(e)	My family business is located here in Papua New Guinea with its headquarters in Rabaul, East New Britain Province; and
(f)	All company assets are located here in Papua New Guinea and I have no assets overseas.
(g)	Lastly, I have on earlier occasions been granted leave to leave this jurisdiction and I have returned on all occasions, thus complying with all conditions imposed on me as per my bail conditions."
40.	With regard to factor (g), this Court confirms that the Applicant had applied in the past on more than 12 occasions to travel overseas whereby the Court on all those occasions granted permission to the Applicant.  This in my view is a significant factor which should be considered favourably to the Applicant here or in this present application.
41.	As for the Prosecution, Mr Rangan's submission was short.  The State did not object to the motion and in fact appear to support it.
42.	I asked Mr Rangan with regard to the main issue which was whether the reason for travel stated by the Applicant was or can be regarded as an urgent personal reason.
43.	Mr Rangan agreed at first that the reason perhaps could not be regarded as urgent.  
44.	But Counsel later pointed out to the case of State v. Mohamad Abdul Alim(Supra) and submitted that:
(i)	the case was a National Court decision which cannot be regarded as a final authority and Counsel urged the Court not to be bound by it; and
(ii)	the Court's power under Section 23 was discretionary in which case he said the Court should exercise that and consider allowing the Applicant to travel.
45.	It is important to state here that submissions that are made by the Prosecution on whether it opposes or supports the Applicant are to be respected and where necessary given effect to by the Court.
46.	For example in the case In the Matter of the Bail Act 1977 - Application by Arthur Gilbert Smedley [1978] PNGLR 156, Justice Pritchard held in part at page 156 that:
(3)	In the interest of the administration of justice, the court should respect the constitutional office of the Public Prosecutor to the extent that where criminal charges are pending against a person who is not a citizen of this country and the Public Prosecutor, in the exercise of his constitutional responsibility, objects to that person leaving Papua New Guinea, any application that he should be permitted to do so should be refused.
47.	This Court can use the above ruling, in my view, to also imply the opposite and apply that favourably to the present case.
48.	That is, the Court should where necessary follow and apply the same principle here in that it should respect or give due consideration to the Public Prosecutor's submission which supports the Applicant's motion.
Discretion
49.	I note in general that the National Court's power to consider an application filed under Section 23 of the Bail Act is discretionary.
50.	And I note that I have also already ruled or found that this discretion may be applied but subject to or except in relation to Section 23(2) of the Bail Act.
51.	I reaffirm my finding which is that the Court's general discretion under Section 23 does not apply to or affect Section 23(2).  In other words, Section 23(2) is mandatory and if an applicant fails to satisfy that, any application that is made under Section 23 shall fail or that the Court is obliged to refuse it.
Summary
52.	In relation to the first issue, my answer on whether the personal reason stated which is to visit a grand-draughter in Sydney Australia can amount to or constitute an "urgent personal reason" as required under Section 23(1) of the Bail Act is "No".
53.	In relation to the second issue, my answer on whether the Court should proceed straight to dismiss the motion is "No" and my answer in relation to whether the Court should also take into account other aspects or considerations or submissions as well collectively before it should exercise its discretion whether it be in favour of or against the Applicant is "Yes".
54.	Therefore and in summary, despite having found that the Applicant has failed to disclose an urgent personal reason as partly required under Section 23(1) of the Bail Act, I am satisfied that the Applicant has satisfied the mandatory requirement stipulated under Section 23(2) of the Bail Act.
55.	Because the mandatory requirement has been met, I will now turn to apply my discretionary power which in this case will apply to Sections 23(1) as well as noting other considerations.
56.	I will exercise my discretionary power, that is, apart from the mandatory findings already made with regard to Section 23(2), and hereby grant permission to the Applicant to travel overseas in accordance with the general terms of the Notice of Motion filed on 14 December 2015. 
57.	In the exercise of my discretion, I take particular note of the following:
(i)	the fact that the Applicant has satisfied all but one of the conditions set out under Section 23(1) of the Bail Act;
(ii)	the fact that the Applicant has satisfied Section 23(2) of the Bail Act which I have found to be mandatory;
(iii)	the fact that the State did not oppose but supported the application;
(iv)	the fact that the National Court has permitted the Applicant to travel overseas on more than 12 occasions in the past and the fact that in all those occasions the Applicant returned back and that he did not at any one time abscond;
(v)	the fact that since the grant of bail in 2013 up to this present time, the Applicant has complied with all his bail terms.

THE ORDERS OF THE COURT
(1)	The Applicant is granted leave to leave this jurisdiction for Australia on reasons as set out in his Affidavit in Support.
(2)	The Applicant's passport be immediately released forthwith by the Assistant Registrar for the duration of his travel from 27 December 2015 to 30 December 2015.
(3)	The requirement for the Applicant to sign in at the District Court Registry on Mondays and other bail terms vary for the duration of his stay overseas and they shall resume upon his return.
(4)	For certainty purposes, I further order that the full terms of the Applicant's bail conditions as amended to date shall resume as at 31 December 2015.

The Court Orders accordingly.
_____________________________________________
Office of the State Prosecutor: 	Lawyer for the State
Solwai Lawyers:    Lawyer for the Applicant