Philip v State [2007] PGNC 57; N3217 (1 June 2007)

N3217

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 37 OF 2007

BETWEEN

MICHAEL PHILIP
Applicant

AND

STATE
Respondent

Lae: Gabi, J
2007: 28 May
1 June

PRACTICE AND PROCEDURE – Bail application – Refusal of bail by a judge of the National Court – Second application cannot be made to the same or a different judge of the National Court – Fresh application must be made to the Supreme Court – Bail Act Sections 6, 7, 13 and 16.

Cases Cited:

An application by John Wilford Gibson (1990) N903
Enana Idon v The State (2001) SC669
Ex parte Arthur Gilbert Smedley [1978] PNGLR 156
Thomas Marcus (1999) N1931

Counsel

T Gene, Lawyer for Applicant
N Miviri, Lawyer for the State

DECISION

1 June, 2007

1. GABI, J: Background: Michael Philip, the applicant, was apprehended on 2 June 2006 and charged for attempted murder and armed robbery. He applied for bail. On 8 August 2006, his application for bail was refused by Kirriwom J. The applicant is making a second application to the National Court for bail on the basis that there is a change in circumstances since bail was last refused. The applicant’s reason is that he is suffering from typhoid infection. The reasons for Mr Justice Kirriwom’s refusal to grant bail on 8 August 2006 have not been placed before me.

2. The State opposes the application on the basis that the applicant is alleged to be the person who shot and wounded the victim in the attempted murder case, that the M 16 assault rifle used in the robbery has not been recovered, that none of the K51, 002.98 stolen has been recovered, that he will be a threat to the State witnesses and that he is likely to abscond and not answer bail.

3. The issues are: (i) whether an applicant may re-apply without providing the bail authority the reasons for refusal of bail; and (ii) whether an applicant may re-apply to the same judge or different judge of the National Court after bail has been refused.

The Law

4. The relevant provisions are Sections 13 and 16 of the Bail Act. I set them out below:

"Part IV – Procedure on Grant or Refusal of Bail

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." (Emphasis added).
  

"16. Reasons for refusing bail to be given and records.

(1) Where bail is refused, the bail authority shall at that time give the reasons in writing for its decision to the person in custody or his legal representative.

(2) Where the bail authority 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) if the bail authority is the officer-in-charge of a police station or a commissioned officer of the Police Force in the register of arrests at the police station where the person is held in custody; and
  
• (b) if the bail authority is a court-in the court papers relating to the charge against the person."
  

Reasons for refusal of bail

5. Under Section 16, a bail authority must give written reasons for its refusal to grant bail. An applicant who applies after been refused bail is required to provide a copy of the reasons to the bail authority (see s 13(3)).

6. That is a mandatory requirement. It is a condition precedent to the exercise of jurisdiction. I am of the view that a failure to do so renders the application incompetent. In this case, Justice Kirriwom’s reasons for refusal of bail have not been produced before me.

Second application to the same or a different Judge of the National Court

7. Mr. Gene of counsel for the applicant submitted that it was proper for me to hear the second application as there has been a change in circumstances and referred me to Ex parte Arthur Gilbert Smedley [1978] PNGLR 156 and Re Thomas Marcus (1999) N1931.

8. In Ex parte Arthur Gilbert Smedley (supra), the applicant made the first application on 12 May 1978 for permission to leave Papua New Guinea under s 23 of the Bail Act to attend his mother’s funeral. The application was refused on the ground that the court was not satisfied that the applicant would return to Papua New Guinea. On 13 May 1978, the applicant re-applied to a different judge of the National Court for permission to leave Papua New Guinea, and relied upon the availability of a guarantor not available on the first application. His Honour, Pritchard J. held that a fresh application by a person granted bail, pursuant to s 23 of the Bail Act, for permission to leave Papua New Guinea, should not be granted, where a previous application has been refused, unless there is a substantial change of circumstances. A similar situation arose in an application by John Wilford Gibson (1990) N903. His Honour, Hinchliffe J. adopted and applied Ex parte Arthur Gilbert Smedley (supra). He said:

"A similar application was made to Salika J. late in June of this year. I say ‘late in June’ because it is not clear to me whether it was on the 25th or the 28th June. The fact that a similar application has already been made to my mind creates a problem for the applicant. I say that because in the case of Ex parte Arthur Gilbert Smedley [1978] PNGLR 156, it was held that a fresh application by a person granted bail, pursuant to s 23 of the Bail Act, for permission to leave Papua New Guinea, should not be granted, where a previous application has been refused, unless there is a substantial change of circumstances. That was a decision of Pritchard J. in the National Court and I agree with that part of his judgement. I am not aware of any other reported or unreported decisions on the point. It would seem to me that if Mr Justice Pritchard’s view was not followed, then an applicant could keep coming back and back to the National Court, every day if he wished, until he found a Judge who would grant his application. That to my mind would be an abuse. Clearly, if there is no substantial change of circumstances then the applicant should go to the Supreme Court." (Emphasis added).

9. In those cases, the applicants have been on bail. They were not applying for bail. They were applying for permission to leave Papua New Guinea pursuant to s. 23 of the Bail Act. Clearly, Ex parte Arthur Gilbert Smedley (supra) and an application by John Wilford Gilbert (supra) are not relevant to the present application.

10. In Re Thomas Markus (1999) N1931, Injia J (as he then was) granted the second application for bail after Sakora J. refused the first application. His Honour, Injia J. said:

"An applicant refused bail previously by a Judge of the National Court may re-apply afresh to the same judge or another judge of the National Court if changes in relevant circumstances have occurred since bail was last refused. This principle is derived from s 6 and s 7 of the Bail Act."

11. With due respect, I disagree with His Honour Injia J.

12. Sections 6 and 7 deal of the Bail Act state:

"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) A Court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.

(3) Subject to Section 4, the Court shall grant or refuse bail in accordance with Section 9.

7. Bail on adjournment.
   

Subject to Section 4, where a person is in custody in connexion 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. Sections 6 & 7 reaffirm the right of a person to apply for bail at any time and impose an obligation on the court to consider an application for bail at the time it is made (see also s 42 (6) of the Constitution). They do not deal with how an application for bail is to be made. The procedure for bail is dealt with by s 13 of the Bail Act. The position is that where a person is refused bail by a magistrate he can apply only to a judge of the National Court, and where he is refused bail by a judge of the National Court he can only apply for bail to the Supreme Court. There is no provision in the Bail Act for an application to be made twice to the same bail authority nor is there a provision for appeal in bail matters. To re-apply to the same judge or a different judge of the National Court after refusal of bail is, to my mind, an abuse of process. I can find no basis for that position in law.

14. In Enana Idon v The State (2001) SC669, the first application for bail before Lenalia J. in the National Court was refused. The applicant re-applied under s 13 (2) of the Bail Act to Davani J. sitting as a single judge of the Supreme Court. Davani J. entertained the application and held that where an applicant is refused bail by a judge of the National Court, he may re-apply to a single judge of the Supreme Court if there has been a change in relevant circumstances. If, on the other hand, the applicant is unable to show change in circumstances, he should apply to the full bench of the Supreme Court.

For the reasons stated in the judgment, I dismiss the application.
_______________________________

Paul Paraka Lawyers: Lawyers for the applicant
Public Prosecutor: Lawyer for the State