N6475
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (APP) No. 326 OF 2016

ABRAHAM BIRI IGO
(Applicant)

V

THE STATE
(Respondent)

Alotau:	Toliken J
2016:		06th September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application – Applicant earlier refused bail by same judge – Need for applicant to show change in relevant circumstances – Change of circumstances must relate to reasons for refusal in the earlier application – Change of relevant circumstances should not automatically entitle applicant to bail in appropriate cases – Bail may still be refused if it is shown that it would be in interest of justice to do so.

PRACTICE AND PROCEDURE – Whether relevant change of circumstances shown – Relevant change of circumstances partly shown – Likelihood of interference have not effectively abated –  Whether in interest of justice to refuse bail – Applicant charged for aiding escape of prisoner from custody – Escapee still at large – Interest of justice  – That fugitives from the law should be captured and that nothing and no one should be allowed to impede the efforts of law enforcement agencies to recapture such persons – Those charged with aiding in their escape should not be granted bail until and unless until such escapee(s) are recaptured – Bail refused in interest of justice.
Cases Cited: 

Bail Application by Bernard Uriap (2009) N3999
Re Bobby Selan (2009) N3690
Re Thomas Markus (1999) N1931

Counsel:

Applicant in Person
H. Roalakona, for the State

RULING ON BAIL APPLICATION
06th September, 2016
1.	TOLIKEN J:	 This is an application by Abraham Biri Igo for bail. Mr. Igo is awaiting trial for one count of aiding in the escape of a prisoner namely Ben Enroy. He had previously applied for bail, but his application was refused by me on 09th November 2015 on the ground that there was a real likelihood that he would interfere with State witnesses.

2.	The applicant now contends that circumstances have changed since bail was last refused and therefore he should be allowed bail. He relies on the affidavit of Veronica V Robert filed 19th August 2016 which shows that the State’s principal witness and his family have since left the Milne Bay Province and relocated to Port Moresby in mid-2015.

3.	 It is clear that the applicant can re-apply to the same judge or to another judge of this court for grant of bail after refusal, but only if the change of circumstances are relevant to the ground of refusal in the first occasion. (Bail Application by Bernard Uriap (2009) N3999; Re Bobby Selan (2009) N3690; Re Thomas Markus (1999) N1931) In Re Thomas Markus (supra) his Honour Injia J. (as he then was) clearly laid down the requirements in the following terms -

“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.”

4.	At first glance the applicant seem to have established that circumstances have indeed changed in that the principal witness and his family are no longer in Alotau, and therefore there is no real likelihood that the applicant will interfere  with him if he is granted bail. However, it must be noted that we are now living in a highly technical world where distance is no longer a barrier to communication and travel for that matter. So even though the witness may have indeed relocated, it has not been shown to me that he cannot be easily located in Port Moresby by the applicant or any person associated with him. 

5.	The applicant knows that the witness has relocated to Port Moresby. This is not a situation where the applicant has no idea where the witness is. He knows that he is in Port Moresby which is a mere hour’s plane ride from Alotau or mere phone call, or text message, or an email away. And given the relative ease with which people can be located, even for a city like Port Moresby, which is hardly a place where anyone cannot be located with ease, given the close cultural and provincial ties people have with one another, I do not think that the likelihood of interference has effectively abated. So nothing has effectively changed. The likelihood of interference still remains despite the fact that the said witness has left Alotau.

6.	On that basis alone the application is refused.

7.	However, there is another matter that needs to be mentioned here. A change of circumstance should not automatically entitle a person who has previously been refused bail to bail. In my opinion, bail can be still refused if it can be shown by the State that it is in the interest of justice that bail should be refused.

8.	 In the instant case the person whom the applicant is said to have helped escape is still at large. And I can say this as a matter of fact because the warrant for the arrest of that person, Ben Enroy, has not been returned to this Court, nor has the body of Ben Enroy, been produced before the Court. In those circumstances, would it be in the interest of justice, to allow bail to the applicant?

9.	I do not think that it would be in the interest of justice to allow bail in such circumstances. Things would have been different if Ben Enroy had been recaptured and is in custody. Unfortunately, that is not the case here.  The interest of justice here is that fugitives from the law should be captured and that nothing and no one should be allowed to impede the efforts of law enforcement agencies to recapture such persons. And those alleged to have aided in their escape and charged should not be granted bail until and unless such escapee(s) are recaptured.

10.	Granted, the applicant if innocent until proven guilty. He will have his day in court when his trial comes up. However, given the circumstances prevailing in this case, bail should be refused also in the interest of justice. 

11.	Bail is refused and I order accordingly.

__________________________________________________
In person                    : Lawyer for the Applicant
The Public Prosecutor: Lawyer for the Respondent