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Tupana v State [2023] PGNC 506; N10835 (28 October 2023)

N10835

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 331 OF 2023

JOSHUA TUPANA
Applicant

v

THE STATE
Defendant

Lae: Murray, J
2023: 12^th September & 28^th October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application – Second Application to the National Court – First Application refused by the same Court – Does the same Court have Jurisdiction to deal with a second application under Section 6 of the Bail Act arguing Change in Circumstances- Application of section 13 of the Bail Act.

Cases Cited
Noah Karo v The State (2009) SC998
Uriap v State (2011) SC1108
Re Application of Chan & Arendi (2007) SC858
Re Thomas Markus (1999) N1931
Bobby Selan-v- State (2009) N3690
Kuku Hayara v State (2009) N3598
Michael Philip v State (2007) N3217
Maragau v State (2016) N6280

Counsels
Mr. S. Togo, for the Applicant
Ms. S. Joseph, for the Respondent

RULING ON BAIL APPLICATION

28^th October 2023

1. MURRAY, J: Joshua Tupana, the applicant, is charged with 1 count of Trafficking a Controlled Substance contrary to Section 68 (1) of the Controlled Substance Act 2021 and is currently in custody. He was committed to stand trial in the National Court on 4 September 2023. Pending his committal hearing in the District Court, he applied for bail in the National Court. The application was heard by Justice Dowa on 31 March this year and on 13 April this year, His Honour delivered his decision refusing bail on 2 grounds. Firstly that, as the investigation was continuing, the applicant was considered highly likely to interfere with State witnesses if released early (s. 9(1) (f) and secondly, that the alleged offence involved the possession, importation, or exportation of a narcotic drug other than for personal medical use by the applicant. (s. 9 (1) (i)) of the Bail Act.

2. On 4 August, a month before his committal and about 4 months after his first bail application was refused, the Applicant filed a second application for bail, again in this Court. That is the application that came before me on 14^th September, 2 weeks after his committal, the subject of this Ruling. The application is bought under section 6 of the Bail Act.

3. In support of the application, the applicant relies on the following documents:

1. His affidavit sworn & filed 4^th August 2023
2. Affidavit of Thomas Omot also sworn and filed 4^th August 2023 and
3. Affidavit of Pr. Josiah Barnabas also sworn and filed 4^th August 2023.
   

4. Soon after the commencement of submissions by Mr. Togo, I raised the issue of whether the application was properly before the National Court, after having realized that this was the Applicant’s second bail application and whether the applicant ought to have made his application in the Supreme Court under section 13 of the Bail Act. I then directed both parties to address me on this issue first, which they did. At the conclusion of submissions, and with the consent of both counsel, I directed that, I would consider the issue of jurisdiction first as a preliminary matter, of which, if I find I have jurisdiction, I will consider the bail application based on the material filed by both sides which included their written submissions. However, if I find I do not have jurisdiction, that would be the end of the matter. I then adjourned and reserved my ruling, which I now deliver.

5. The preliminary issue is whether an applicant for bail in the National Court can reapply to the same or a different Judge after an earlier application had been refused.

6. Referring to the case of Thomas Markus -v- the State (1999) N1931 and the Judgement of Cannings J in the case of Bobby Selan-v- State (2009) N3690, which followed Thomas Markus, it was Mr. Togo’s submission that, the application by his client is properly before this Court and that this Court has jurisdiction to hear it because, it is brought based on change in circumstances. It was further submitted that, since the refusal of the first application by this Court, the circumstances in his client’s case have changed. Hence this application.

7. Although, Ms. Joseph for the State, did not take a position on this jurisdictional issue in her written submission, she did in her oral submission, relying on the Supreme Court case of Uriap v State (2011) SC1108, argued that, this Court does not have jurisdiction to hear a second application for bail after it had already refused a first one. The appropriate Court after this Court to hear another application by the same applicant is the Supreme Court.

Law

8. Part IV of the Bail Act provides the procedure on grant or refusal of bail. More relevant to the application before me is Section 13. It reads:

"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."

9. More relevant to this case is subsection 2 which provides that, a person who has been refused bail by a Judge of the National Court is entitled to apply for bail to the Supreme Court.

10. The case of Re Thomas Markus (1999) N1931, which was presided over by Injia J as he then was, and applied in the case of Re Application By Reuben Micah (2010) N4059, stand for the proposition that, an application for bail based on change in circumstances can be made to the same or another Judge of the National Court, as long as the applicant can show change in relevant circumstances, which must relate to the earlier reason for refusal.

11. In that case, before his Honour reached that conclusion, His Honour considered Section 13 (2) of the Bail Act, and was of the view that, that section is only applicable to applications that go before the Supreme Court, be it a single Supreme Court Judge or the full Court and not to an application that is before National Court, primarily based on change in circumstances.

12. On the other hand, the case of Michael Philip v State (2007) N3217 and Kuku Hayara v State (2009) N3598, take the opposite view. That is, they hold the view that, by application of Section 13 (2) of the Bail Act, an applicant for bail in the National Court cannot reapply to the National Court again if the first application was refused. The next avenue available for such an applicant would be the Supreme Court.

13. That position is supported by the Court in the case of Re Application of Chan & Arendi (2007) SC858. In that case, Kapi CJ, as he then was, sitting as a single Supreme Court Judge dealing with the issue of whether a single judge of the Supreme Court has jurisdiction to deal with an application under s 13 (2) of the Bail Act, expressed a view that, the procedure for further bail application after a refusal is, as set out under Section 13 of the Bail Act very clearly. At [12] His Honour stated:

The legislature in enacting the provisions of the Bail Act deliberately designated three levels of court which may deal with bail where bail is refused by a bail authority. There is no question that initially, a magistrate may deal with bail (13 (1) of the Bail Act). Where a magistrate refuses bail, there is no question a Judge of the National Court may consider bail (s 13 (1) of the Bail Act).

14. And at [18]:

There is no provision under the Bail Act which gives a single judge of the Supreme Court jurisdiction to exercise discretion on bail. The application under s 13 (2) of the Bail Act must be determined by the Supreme Court consisting of three judges.

(Underline mine)

15. Although it is not specifically stated, it is still clear from these statements by Kapi CJ as he then was, that, in the case where a Judge refuses bail, Supreme Court comprising of 3 Judges is the next authority that may consider bail. (Section 13 (2) Bail Act)

16. The said decision of Kapi CJ, as he then was, on setting out the procedure where bail is refused by the National Court, was affirmed and followed by the Supreme Court in the case of Uriap v State (2011) SC1109.

17. The question for me now is, which position should I follow.

18. In Maragau v State (2016) N6280, I followed Re Thomas Markus for 2 reasons: First is that, State did not oppose the position put forward by the applicant and the second is that, I was not assisted by either counsel as to other case authorities on point which I have been referred to in this case which includes 2 Supreme Court Judgments. One by a single Judge and the other full Court.

19. Having read the various cases on point, and on the strength of the 2 Supreme Court decisions, starting firstly with Re Application of Chan & Arendi, and Uriap v State, I am now inclined to depart from the position I took in the Maragau case. The procedure for further application for bail after refusal as set out in Section 13 of the Bail Act is clear. As stated by Kapi CJ as he then was in Re Application of Chan & Arendi, Section 13 provides 3 levels of Court where an applicant for bail can turn to when his first application has been refused. The procedure starts with the District Court. If bail is refused there, one can go up to the National Court and if bail is refused there, one can go up to the Supreme Court. On the other hand, there is nothing in the Bail Act that says, a person can reapply to the same Bail Authority on change in circumstances after a first application was refused. In the absence of any provisions allowing for such an application, such application cannot stand.

20. For the reasons stated above, I find, I have no jurisdiction as the application is not properly before me.

21. The application is now dismissed for want of jurisdiction.

22. Having dismissed the application, it is not the end for the accused. He can still apply to the Supreme Court for bail under section 13 (2) of the Bail Act either as a fresh application or on the basis of change in circumstances. (see Noah Karo v The State (2009) SC998)
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Daniels & Associates Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyer for the Respondent