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Tongayu v State [2022] PGSC 2; SC2187 (7 January 2022)

SC2187

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APP NO 14 OF 2021

ALEX TONGAYU
Applicant

V

THE STATE
Respondent

Waigani: Cannings J
2022: 6^th, 7^th January

BAIL – application to Supreme Court for bail pending appeal against conviction – Bail Act, s 11 – application after earlier refusal of bail by single Judge – whether another single Judge may hear fresh bail application.

The applicant applied to the Supreme Court for bail pending an appeal against conviction and sentence, under s 11 of the Bail Act. His bail application was heard and refused by a single Judge of the Supreme Court. He then filed another bail application, which was set down for hearing before another single Judge of the Supreme Court. The question was raised whether that Judge had jurisdiction to hear it or whether it was necessary or desirable for the application to be heard by the full Court of the Supreme Court, consisting of three Judges.

Held:

(1) Section 10(2) of the Supreme Court Act provides that where a Judge refuses a bail application, pending appeal, the appellant may apply to the Supreme Court to have the application determined.

(2) Though there is no express prohibition against an appellant who is refused bail by a single Judge making another bail application before another single Judge, where there is an obvious procedure available for hearing the second bail application, in s 10(2), that procedure should be invoked.

(3) Ordered: that the application be listed for hearing before the full court of the Supreme Court.

Case Cited

The following case is cited in the judgment:

Roy Yaki v The State [1990] PNGLR 513

Counsel

M Norum, for the Applicant
C Langtree, for the Respondent

7^th January, 2022

1. CANNINGS J: Alex Tongayu applies to the Supreme Court for bail under s 11 of the Bail Act. He is serving a three-year sentence after his conviction of forgery offences under s 462(1) of the Criminal Code. He was convicted by the National Court on 7 April 2021 and sentenced on 5 August 2021.

2. Section 11 of the Bail Act provides:

Where a person lodges an appeal against his conviction or sentence or both—

(a) the court which convicted him; or

(b) a court of equal jurisdiction; or

(c) a court of higher jurisdiction,

may, in its discretion, on application by or on behalf of the appellant, grant bail pending the hearing of the appeal.

3. He applied for bail soon after his sentence to the Supreme Court. His application, under the file reference SCAPP No 5 of 2021, was heard by Justice Manuhu, sitting as a single Judge of the Supreme Court. His Honour refused bail on 10 September 2021. The present application is a new one, under the file reference SCAPP No 14 of 2021. The question arose yesterday when the application came for hearing, whether I, as another single Judge of the Supreme Court, have jurisdiction to hear it. Or should the application be heard by the full court of the Supreme Court, consisting of three Judges?

4. The answer seems to be provided by s 10 (powers that may be exercised by Judge) of the Supreme Court Act, which provides:

(1) Any power of the Supreme Court under this or any other Act—

(a) to give leave to appeal; or

(b) to extend the time within which notice of appeal or of an application for leave to appeal may be given; or

(c) to admit an appellant to bail,

may be exercised by a Judge in the same manner as it may be exercised by the Court.

(2) Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court.

5. The present case is covered by s 10(2): a Judge has refused an application in relation to a matter under s 10(1)(c), so the appellant may apply to the Supreme Court, consisting of three Judges, to have the matter determined by that Court. Though there is no express prohibition against an appellant who is refused bail by a single Judge making another bail application before another single Judge, I think that where there is an obvious procedure available for hearing the second bail application, in s 10(2), that procedure should be invoked.

6. The second bail application is a fresh application. It is not an appeal. There is no obligation imposed on the applicant to show any error in the earlier refusal of bail or any change in circumstances since that refusal (Roy Yaki v The State [1990] PNGLR 513).

7. I decline to hear, as a single Judge, the application that was filed on 23 December 2021. I will order that it be listed for hearing before the full court of the Supreme Court.

ORDER

8. The application for bail filed 23 December 2021 shall be treated as an application under s 10(2) of the Supreme Court Act and listed for hearing before the full court of the Supreme Court.

_____________________________________________________________
Michael Norum Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyer for the Respondent