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Tupana v State [2025] PGSC 16; SC2701 (27 February 2025)

SC2701

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SC APP NO. 1 OF 2025

JOSHUA TUPANA
Applicant

V

THE STATE
Respondent

SC APP NO. 2 OF 2025

ALFRED SANAGE
Applicant

V

THE STATE
Respondent

WAIGANI: KARIKO J, WAWUN-KUVI J & CARMODY J
27 FEBRUARY 2025

PRACTICE & PROCEDURE – bail application – on adjournment during trial – application previously made to Supreme Court under s 13(2) Bail Act – fresh application based on change of circumstances – whether jurisdiction properly invoked

During committal proceedings, the applicants sought bail in the National Court which were refused. They then made applications in the Supreme Court but were unsuccessful. Their cases proceeded to trial in the National Court which adjourned for verdict. Application for bail were again filed in the Supreme Court based on change in circumstances.

Held:

(1) Where bail is refused by the National Court, a further application may be made:

(a) to the National Court, but the applicant must demonstrate a change in relevant circumstances since the previous application; or
(b) to the Supreme Court under s 13(2) of the Bail Act to be heard by the full court.

(2) Where bail under s 13(2) of the Bail Act is refused by the Supreme Court, further applications under this provision let alone based on change in circumstances is not permitted.

Cases cited
Bobby Selan v State (2009) N3690
Kaiwi v State (2023) SC2359
Mange v State (2019) N7769
Michael Wilson v Clement Kuburam (2016) SC1489
Nenekan v State (2023) SC2514
Parker v State (2015) N6191
Re: Bail Application by Bernard Uriap (2009) N3999
Thomas Markus v State (1999) N1931

Counsel
S Toggo for the applicants
T Kametan for the respondent

1. BY THE COURT: We heard and dismissed two applications for bail and indicated publishing fuller reasons later. We provide those reasons now.
   

BACKROUND

2. The applicants were both charged with drug related offences on 24 March 2023.
   
3. During their committal hearing, they applied for bail in the Lae National Court which was refused on 13 April 2023.
   
4. They subsequently sought bail in the Supreme Court under s 13(2) of the Bail Act, but that was also refused on 29 December 2023.
   
5. In the meantime, they were on 4 September 2023 committed to stand trial in the National Court.
   
6. The applicants were subsequently indicted with five others on one count each of money laundering and stealing, tried in June 2024 and judgment on verdict was reserved in July 2024.
   
7. In January this year, they filed the present bail applications pursuant to s42(6) of the Constitution and s 13(2) of the Bail Act.
   

JURISDICTION

8. At the commencement of the applicants’ submissions, the Court questioned whether the proper jurisdictional basis was invoked for the applications to be entertained.
   
9. The particular issue raised was whether s 13(2) of the Bail Act grants this Court power to hear the applications?
   

SUBMISSIONS

10. The applicants contended that although applications under s 13(2) were previously made and refused, the new applications were being made due to change in circumstances since the refusals. This they submitted was allowed by law.
    
11. In support of this argument, the applicants referred to the case authorities of Thomas Markus v State (1999) N1931; Bobby Selan v State (2009) N3690; Re: Bail Application by Bernard Uriap (2009) N3999; Parker v State (2015) N6191 and Mange v State (2019) N7769 cited in their filed written submissions.
    

CONSIDERATION

12. Entitlement to bail is guaranteed to persons arrested or detained for offences (not being treason or wilful murder) by s 42(6) of the Constitution, and this provision is given effect to by the Bail Act.
    
13. Relevant to considering the present applications are s 6(1), s 7 and s 13(2) of the Bail Act which state (with emphasis added):
    

6. APPLICATION FOR BAIL MAY BE MADE AT ANY TIME.

(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.

(2) .....

(3) .....

7. BAIL ON ADJOURNMENT.

Subject to Section 4, where a person is in custody in connection with any proceedings, including proceedings for committal for trial or sentence in the National Court, the court shall, on each occasion that it adjourns the proceedings before conviction, consider and accordingly grant or refuse bail to that person in accordance with Section 9.

13. FURTHER APPLICATION MAY BE MADE AFTER REFUSAL.

(1) .....

(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) .....

(4) .....

14. The argument by the applicants is misconceived. There is no authority for the proposition that having had a bail application under s 13(2) refused by the Supreme Court, an applicant may renew the application in the Supreme Court let alone based on a change in circumstances.
    
15. The cases referred to by the applicants do not assist the applicants. Rather, they affirm the principle that where bail is refused by the National Court, the applicant may make another application before the same court based on change in relevant circumstances. See also Kaiwi v State (2023) SC2359 and Nenekan v State (2023) SC2514.
    
16. By virtue of s 13(2), the applicant may also apply to the Supreme Court if bail is refused by the National Court.
    
17. The trial against the applicants in the National Court would be the relevant proceeding referred to in s 6. The applicants are entitled under s 7 to apply for bail in the National Court after the trial adjourned for judgement on verdict. Because bail was previously refused by the National Court, the applicants would need to show a change in relevant circumstances to succeed in their new applications in the National Court.
    
18. They did not pursue this course but instead filed applications under s 13(2), a procedure only available where bail is refused by the National Court.
    
19. As Berigan J rightly observed in Mange v State (supra) at [8]:
    

“Read together, ss. 6 and 7 provide that an application for bail may be made at any time after a person has been detained, and further that the issue of bail is one for ongoing consideration prior to conviction. Section 13(2) of the Bail Act does make particular provision for an application to the Supreme Court in the event of refusal but it cannot, in my view, impinge upon the effect of those provisions”.

20. If the further applications for bail in the National Court fail, the applicants may then make fresh application under s 13(2).
    
21. After exchanging with Mr Toggo for the applicants, counsel ultimately accepted that the applications were wrongly filed, and this we find to be an abuse of process. As Gavara-Nanu J noted at [25] in Michael Wilson v Clement Kuburam (2016) SC1489, abuse of process includes improper use of the processes of the court or using the processes in an improper way.
    

CONCLUSION

22. Consequently, we dismiss the bail applications for want of jurisdiction, and for being an abuse of process.
    

Lawyers for the applicants: Toggo Lawyers
Lawyer for the respondent: Public Prosecutor