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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO. 149 OF 2021
THE STATE
V
GLEN TOBEWA
Waigani: Ganaii, AJ
2021: 14th, 15th October
CRIMINAL LAW – Bail – Practice and Procedure – Oral Bail Application triggered by Section 552 (3) of the Criminal Code - Where Public Solicitor acts for the Accused – Formal application can be easily and readily filed – No serious hardship in complying with strict rules for filing formal applications – Refusal to hear and determine Oral Bail application
Held:
Cases Cited
Papua New Guinea Cases
Gavara-Nanu v O’Neill [2018] PGNC 447
Maru and Oa v The State [2001] PGNC 151; N2045
State v Marcel Sohan, Alfred Martin, Solomon Bina & Jonitha Katsin, Cr. Nos. 214, 215, 216, and 678 of 2014, Bona J. (11th February, 2015)
State v Mene Mamaino [1990] PNGLR 185
Overseas Cases
DPP (NSW) v Zaiter [2016] NSWCCA 247
Reference
Mamu, L. B. (2009) “The law and principles of Bail in PNG”. Kairos Press.
Laws cited
Criminal Code Act, Chapter 262, Section 552 (3)
Criminal Practice Rules of 1987, Order 1, Division 4, Rules 11, 12, 13
Bail Rules of 2021, Rule 5, Sub-rules Rules (1) and (8)
Counsel
Ms M. Tamate and Ms E. Kariko, for the State
Mr Bernard Popeu , for the Accused
Decision on whether to Hear and Determine an Oral Bail Application
15th October, 2021
1. GANAII, AJ: The accused is charged with one count of Unlawful Use of Motor Vehicle under section 383 of the Criminal Code and is appearing from remand, awaiting trial. His matter was allocated a trial date in the next circuit month. Mr Popeu, of learned counsel for the accused, applied for the accused to be brought to trial by the state presenting an indictment in the next circuit month. Counsel placed on record that if the state fails to present an indictment in the next circuit month, he will be seeking a discharge for his client under section 552 (4) of the Criminal Code. The state indicated it will present an indictment
Facts
2. Before adjourning for trial, Mr Popeu made an oral application seeking that the accused be granted bail pending his trial, pursuant to section 552 (3) of the Criminal Code. He argued that such an application can be made orally. He relied on Order 1 of Division 4, Rules 11, 12 and 13 of the Criminal Practice Rules (CPR) to say that the Court can hear oral bail application under section 552 (3) of the Criminal Code.
3. Counsel submitted that he also relied on unreported case precedents which have demonstrated that the courts have granted bail in similar situations where the interest of justice required that bail applications be heard and decided orally. He submitted that such bail applications are different and urgent in nature to the other categories of bail applications so that the rules for filing of formal applications can be dispensed with. He submitted that the court can decide on the issue of bail upon his oral application.
4. Ms Tamate for the State objected to the defence making an oral bail application and therefore, did not respond to the application. She submitted that the court must not determine the oral bail application now made by the defence until written applications for bail are filed, served and properly argued.
Issue (s)
5. The issue is whether exceptional circumstances exist; whether the interest of justice requires oral bail be made and whether compliance with the strict rules of filing a written application for bail will cause serious hardship to the applicant?
Law
6. The applicable laws in the circumstance are section 552 (3) of Criminal Code; Order 1, Division 4, and Rules 11, 12 and 13 of the CPR and Rule 5, sub-rules (1) and (8) of the Bail Rules. I state them below:
Criminal Code Act
552. RIGHT TO BE TRIED.
(1) ...
(3) If no indictment has been presented against the applicant–
(a) where the application is made at a sittings of the National Court at the place of trial–before the end of the sittings at
which the application is made; or
(b) where the application is made at a sittings of the National Court at some other place–before the end of the next sittings
of the court at the place of trial,
the court shall, on application by him, admit him to bail on such terms as the court thinks proper, unless the court is satisfied that there are special reasons why the application should be refused.
Criminal Practice Rules 1987 (No 1 of 1987)
Division 4.—Applications to the Court
11. All applications allowed under the Code, Probation Act 1979 or by these Rules shall be made by Originating Summons.
12. The Court may dispense with compliance with Rule 11 where it is in the interests of justice so to do.
13. Where an application is heard under Rule 12 the Court may require such application be later reduced to writing.
Bail Rules 2021
5. Making a bail application
(1) Subject to these Rules, the general requirement is that a bail application will be made formally by filing at a Registry of the National Court a bail application in form 1.
(2) ...
(8) Nothing in these Rules prevents a Judge hearing, provided there are exceptional circumstances, an oral bail application or granting
bail on the own initiative of the Court, especially in urgent cases where to insist on compliance with these Rules would be likely
to cause serious hardship; provided that in all such cases a bail file is opened within three days after dealing with the matter
and all orders and processes of the Court are then recorded expeditiously.
Application
7. Prior to the commencement of the Bail Rules 2021, and apart from Order
1, Rules 11, 12, and 13 of the CPR, there had not been any expressed provisions in statute law or any rules on the practice and procedure for bail applications generally.
This included bail applications triggered by section 552 (3) of the Criminal Code where a person is not brought to trial by the presentation of an indictment.
8. In response to Mr Popeu’s argument, I do not think that just because an accused person is not brought to trial by the presentation of an indictment, that an exceptional circumstance already exists whereby it must follow that the rules for filing of formal applications should automatically be dispensed with. Each case must be determined on its own peculiar facts in determining the question of exceptional circumstance or what is in the interest of justice. I will return to this in the later part of the ruling.
9. For now, I wish to comment on the section 552 provision of the Criminal Code. This provision, in my respectful view, intends to reinforce the accused person’s Constitutional right to be considered for bail at all times, the right of innocence until proven guilty and the right to a speedy and fair trial within a reasonable time. It does not intend to provide for a different manner or process for filing and dealing with bail applications. The process that should be followed and as is contained in Division 4, Rules 11, 12 and 13 of the CPR (prior to the Bail Rules), and now Rule 5, sub-rules (1) and (8) of the Bail Rules, is that the starting point for an application of bail regardless of where in the criminal justice process the case is at, is to file a written or formal application unless the applicant shows the existence of exceptional circumstances, or that the interest of justice requires that an oral application be made.
10. The interest of justice argument connotes to fairness (Gavara-Nanu v O’Neill [2018] PGNC 447), and therefore, to my mind, apart from the usual arguments, there will have to be very specific arguments that counsels must raise to advance their respective positions in bail applications at this juncture of the criminal proceedings. These include: the history of or reasons for delay in presenting an indictment to bring the accused to trial; the strength of the state’s case; availability of state witnesses; whether the likely sentence for the offence is going to be shorter than the actual time spent in pre-trial custody and reasons why bail was previously refused if that was the case. Where bail had been previously refused, the court must consider whether there is a change in circumstance that does exist that will favour bail. A further consideration is also whether this is a first application for bail so that section 9 considerations of the Bail Act are argued.
11. All these considerations require a proper and careful assessment by the court so that the legal requirements in paragraph (b) of s 552 (3) of the Criminal Code are met. These requirements are that the court shall, consider whether to admit an accused person to bail on such terms as the court thinks proper, or be satisfied that there are special reasons why the application should be refused. It is for this reason that the court must insist on a formal application to be filed to be properly assisted.
12. On case precedents, and as Mr Popeu submitted, I have no doubt that the Courts have heard numerous oral bail applications under similar circumstance before and have granted bail in many of them. These decisions have not been published. However, in the absence of published reasons for decisions, and where there has not yet been a Supreme Court determination on the specific manner for applying for bail triggered by section 552 (3) situation, it does not necessarily follow that those decisions granting oral bail applications are not authoritative. Cases nevertheless, must be determined on a case-by-case basis and in accordance with the particular facts of the case. In DPP (NSW) v Zaiter [2016] NSWCCA 247, RA Hulme, J observed that:
“Bail decisions involve a discretionary evaluative judgment on a variety of factors about which, and within limits, reasonable minds may differ... It does not follow that simply because a judgment is published it is more authoritative than others that are not”.
13. The observations by RA Hulme, J resonates with the fact that many unreported bail application judgments are specifically directed to the facts and circumstances of the case at hand and therefore may not necessarily be applicable as case precedents to other bail cases. If they are reported, it is useful for bail authorities to have examples of how particular factual circumstances have been considered by the Supreme Courts. Nevertheless, the point is that every bail application presents its own unique factual matrix.
14. With those observations in mind, and in consideration of this issue, a discussion of different factors relevant to the question
of oral bail in this instance, is necessary, to assist the court in its deliberation, in arriving at a decision on whether I should
determine an oral bail application or direct that a formal application be filed.
15. The only reported case in this jurisdiction which I came across, on bail applications under section 552 (3) of the Criminal Code is the case of the State v Sohan, Martin, Bina & Katsin, Cr. Nos. 214, 215, 216, and 678 of 2014, at Buka Circuit: Bona J presiding, in a decision dated the 11th February 2015. Whilst it is reported, it has persuasive value only. I also note that the peculiar facts of that case are different
to the present case. (DPP (NSW) v Zaiter, supra).
16. The facts of this case were that the applicants were represented by a lawyer from the Office of the Public Solicitor who was on circuit to Buka. At that time when they made their bail applications, it had been five months since they had made an application to be brought to trial. The state failed to present an indictment. The learned counsel for the accused persons submitted that since their trials have been continuously delayed they were concerned about the inhuman conditions at the police cells where they have been kept. They were ready to comply with the usual conditions for bail. The State had no strong objections but insisted on stringent conditions to be imposed. Due to the delay the Court granted the application for bail.
17. Whilst this case demonstrated that courts could hear and grant oral bail applications triggered by s 552 (3) and based on Rules 11, 12 and 13 of the CPR, the main considerations by the court in that case that favoured hearing and determining an application for bail orally were: firstly, the application for bail was made five months after an application was made to be brought to trial and no indictment had been presented. Secondly, the reason why the State did not present an indictment for at least two months was due to circuit exigencies where there was no National Court circuit to Buka for two months so that there was unavailability of lawyers and judges for court sittings. Thirdly, the State had no objections to the accused person’s lawyer making an oral bail application and fourthly, there was no objection for them being released on bail.
18. In the present case, I note the differences here are these: an application to be brought to trial in the next month had only been made this circuit; the availability and presence of the court and lawyers in Waigani is consistent; the State had raised objections to the court hearing and determining the oral bail application and State has sought to be served copies of a formal bail application so that appropriate instructions can be obtained and necessary responses can be made.
19. The accused in the instant matter has access to a readily available lawyer from the Office of the Public Solicitors and a readily available judge sitting in the Waigani National Court. It is therefore not extremely difficult for the accused to be properly represented where written application for bail can be easily filed at the National Court Registry, served on the Public Prosecutors Office and listed for hearing before a judge. It would be a different scenario altogether if the accused was self or unrepresented.
20. In ‘The law and principles of Bail in PNG’, prior to the commencement of the Bail Rules, the author L. B. Mamu, in discussing oral bail applications said (at page 151) that the power to dispense with compliance with rules for written notice of application is appropriately to be exercised in respect of bail applications by unrepresented persons held on remand.
21. The view of the learned author, is that dispensation with the rules for filing formal bail applications can be made in exceptional circumstances and one such situation is where the accused person or a remandee, is self-represented or is not assisted by legal counsel. Such a person may face serious hardship or may be placed in an ‘extremely difficult’ situation to file their own proper and formal bail application. As such, the interest of justice would require that the courts can dispense with the rules for filing written bail applications.
22. On a further observation, prior to the Bail Rules, and with regards to oral bail applications generally, brought under Order 1, Rules 11 and 12 of the CPR, in the case of Maru and Oa v The State [2001] PGNC 151; N2045, His Honour, Kandakasi J, made some useful remarks. In summary, and among others, two of his relevant points were: firstly, in dispensing with the rules, the courts have to be mindful of the need for the court registry to keep proper records of bail applications so that the courts are able to know whether a person has applied for bail or not; and secondly, bail applications should be made in writing unless it is extremely difficult for any documentation to be filed (citing the case of State v Mene Mamaino [1990] PNGLR 185). Mamaino (supra) and Maru and Oa (supra) are consistent with the Bail Rules.
23. In making the above observation, and in particular to the first point, I say that it is extremely important to keep proper records of bail applications as applicants through their lawyers will often immediately after refusal of bail want to exercise their rights to continue to seek bail after refusal in the first instance arguing change in circumstance and or appeal to a higher bail authority on the decision of the lower court. The higher bail authority must then in its deliberate judicial function, consider the reasons for refusal of bail. It is for this main reason that having proper records will assist the courts in that regard. The importance of having proper records of bail applications therefore cannot be overemphasised.
24. It is also worth noting that in the Bail Rules, a further administrative requirement that bail authorities must bear in mind before considering oral bail applications is the court’s ability to expeditiously open a file and create proper records of the orders and proceedings of the Court within three days from hearing of the oral bail application. What I think this means in practical terms is that before the hearing of any oral application for bail, and where the court is of the view that for whatever reasons, the court will not be able to expeditiously reduce into writing the proceedings of the court, then, such an application must not be heard as the interest of justice would also require proper records to be kept by the courts and the onus is on the applicant to file written applications to enable that. The courts therefore must simply insist on the filing of formal bail applications.
25. In conclusion, for the maintenance of proper records at the registry, for the interest of injustice and in all fairness to the State and for all the above reasonings, the court will not hear or determinate the instant oral bail application where exceptional circumstance does not exist, and where it is not extremely difficult to file a formal bail application in this instance. Mr Popeu has not made out a case of exceptional circumstance as in the case of Sohan, Martin, Bina & Katsin (supra), where among other reasons, the unavailability of duty lawyers and judges due to circuit exigencies, were a consideration in favour of oral bail under section 552 (3) of the Criminal Code.
26. For the forgoing, where an application to be brought to trial had only been made this month, where a trial date has been given and where the applicant is represented by a lawyer from the Office of the Public Solicitors, who can easily and readily take instructions to file a formal bail application, I will refuse to hear and determine an application for bail made orally.
27. The lawyer for the applicant, from the Office of the Public Solicitors is at liberty to file a formal bail application at the National Court registry pursuant to the Bail Rules, serve on the state and obtain a hearing date.
Order
28. The application to hear and consider an oral bail application is refused.
Orders accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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