Re Thomas Markus [1999] PGNC 82; N1931 (15 September 1999)

Unreported National Court Decisions

N1931

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP NO. 381 OF 1999
RE THOMAS MARKUS

Lae

Injia J
7 September 1999
15 September 1999

PRACTICE AND&#160CEDURE -60; - Bail aptions - NatioNational Court - Refusal by one Judge of the National Court - Need for Court to provide full reasons for refusal - Fresh application to #160;nothege of National Court - Need for applicant tont to show show change in relevant circumstances - Rs - Relevant circumstances must relate to earlier reasons for refusal - Need for applicant to furnish full reasons for refusal of bail by previous judge - Bail Act, SS.6, 7, 13 and 16.

Cases Cited

Re: Herman Kagl Diawo [1980] PNGLR 148

Counsel

L. Siminji for the applicant

M. Peter for the respondent(State)

15 September 1999

INJIA J: This is a bail application pursuant to S.6 of the Bail Act (Ch. No. 340) pending conclusion of committal proceedings before the District Court at Lae. The appion is made before fore me as a judge of the National Court following refusal of bail by another Judge of the National Court, namely Sakora J, on 16 July 1999. His Honour refused bail unb>S.9(1)(c)(i) of the Act because the offence of murder with which the accused was charged consisted of a serissault: see Certificate ousaefusal to Grant Bail dated 16ed 16 July 1999. The primary basis of theicpplication before me is that since the refusal of bail by Sakora J, circumstances have changed which warrants me to re-visit ttter afresh, namely, that on 13 August 1999, another judge of the National Court, Justice Hice Hinchliffe, granted bail to the applicant’s four (4) co-accused.

The principles relating to bail are that an applic#8220;is ents entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require” (Contion S.42(6), Bail Act, S.3). As such, S.9, S.9(1) o e Bail Act sets out criteria for “not as to granting bail but as to its refusal”: Re Herman Kagl D/u> [1980] PNGLR 148 at 155. An applicant refused previously by a Judge of thof the National Court may re-apply afresh to the same judge or another judge of the National Court if chann relevant circumstances haes have occurred since bail was last refused. This principle is derirom from S.6 and S.7 of the Bail Act.

Section 13 of the Bail Act provides for the procedure to be followed where a person is refused by a bail authority. Subsectio specifically rely rely relates to refusal by a judge of the National Court. Section 13 provide>

13.p>13. her applicationbmay be made made after refusal.

(1) &#Wh person is refused bail bail by a Magistrate he is entitled to apply for bail, immediately if heif he so desires, to a Judge of the National Court.

(2);ټ&##160;e a person is refused bail byil by a Ju a Judge odge of thef the National Court he is entitled to apply for bail, immediately if he so desires, to the Supreme Court.

(3) ҈ aereppl applicatiocation is made under Subsection (1) or (2), the applicant shall produce a copy of the reasons given under Section 16.

(4) ـ An applyc may de unde unubsectisection (1on (1) or ) or (2) whether or not bail was refused--

(a) under this Act (includhisosn) orr any other law; or

(b) < &1600ټ on an applicatlication.

The present application does noe und13(2)use tpplic is not made to me o me as a as a singlsingle jude judge ofge of the Supreme Court, of which I am: Conston, S.160(1160(1), S.162(2). The question of whether the jurisdiction of the Supreme Court to deal with bail applications under S.13(2) maexercised by a single judge of the Supreme Court or a full full bench of the Supreme Court and if bail is refused by a single judge of the Supreme Court, whether or not he is entitled to re-apply for bail to a full bench of the Supreme Court, are questions which I as a National Court has no jurisdiction to answer.

At the hearing, I invited the applicant’s counsel Mr Siminji to cite to me any authority for the proposition he advanced, that is that the granting of bail to the applicant’s co-accused by another judge of the Supreme Court since the earlier refusal of bail by still another judge of the National Court is a change in relevant circumstance. He was unable to cite any. Mr M. Peter who appeared for the State also did not cite any authority. In my view, it is not.; Ba0; Bail is a matter that affects the liberty of an individual “person&#82b> an persons in groupgroups. Although se persons mays mays may be charged jointly or severally with the same charge in relation to a particular crime, the nature and extent of the participation of each co-offender in the crime is always different as are their individual personal circumstance. Tore, bail is always considonsidered on an individual basis.

In considering whether there has been a change in circumstances, the change or changes in circumstances must be relevant. Inrmining what changes ares are relevant circumstances, it is necessary to re-visit the judge’s earlier reasons for refusing bail with reference to S.9(1 of the Bail Act. Any circumstances whis which did not form part of the reasons pertaining to the grounds upon which bail was refused under the criteria in S.9(1) is not a relevant circumstance for which the Court should re-consider irlier decision to refuse base 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 oing another bite at the same same application before another judge, without providing evidence of any change in relevant circumstances or with evidence of change in irrelevant circumstances.

A decision made in granting or refusing bail is a judicial decision. That is why S.16requirequires the Court to give reasons in writing for its decision to the person in custody or his legal representative, and to ensure that those reasons are ded on the Court papers rers relating to the charge against the person. Section 16 provides:16. Reasor rffusing bail to beto be given and recorded.

(2) ټ&#Where tere the baie bail auth authorityority refu refuses to grant bail, whether or not application has been made, the bail authority shall ensure that the reasons for its decision are recorded--

(a) ـ if the aail authorithority is the officer-in-charge of a police station or a commissioned officer of the Police Force--in thester restshe police station where the person is held in custody; and

(b)&#(b) &160; #160;ـ i bthe bail authority is a is a court--in the court papers relating to the charge against the person.

Any change in relevant circumstances must e to reasor refusing bail set out on the face ofce of the the writtwritten record provided under S.16. The current practice undeS S.16 is that the Bail Regulations Section 3 requires the issue of a Certificate of Refusal to Grant which contains the same grounds for refusal bail under S.9(1). The bahe bail auty refusinfusing bail is simply required to tick the appropriate box appearing beside the ground of refusal set out on the said Certificate. It might appeat thue of a of a Certificate is sufficient compliance with with the requirement to give reasons in S.16. However, in my, in to atto attain full compliance with S.16, it is desirable that the National Coal Court should record and produce upon re by an applicant, full reasons for refusal of bail in addition to providing the CertiCertificate of Refusal to Grant Bail. This would also enablenext next judge of the National Court to properly re-consider afresh bail of a person who is previously refused bail by a judge of the National Court. By analo S.13(3) ofb> of the Bail Act, an applicant re-applying for bail before the same or another judge of the National Court following refusal of bail by the same or another juf the National Court, shoulshould be required by the Court to furnish a copy of the full reasons for refusal provided under S.16 of the Act.

In the matter before me, no such full reasons for refusal of bail by Sakora J. has been furnished to me by the applicant. I cannot find one on the Court file either. The mere refereo the Certificate of Refusal to Grant Bail in the Court file shows nothing more than the fact that bail was refused under S.9(1)(c)(i> namhe offence with with which the applicant was changed conviconvicted on account of serious assault. The bare change in the bail status of the applicant’s co-accused falls short of a change in relevant circumstances. I circumstances, I am ntis ntisfied that change in relevant circumstances have been shown to exist by the applicant sint since bail was last refused by Sakora J.; For these reasons, I refuse bail.

Lawyer for Appl Applicant: Public Solicitor