N3598

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NOs 99-100 OF 2009

IN THE MATTER OF THE BAIL ACT CHAPTER 340

AND

IN THE MATTER OF SECTION 42(6) OF THE CONSTITUTION

BETWEEN

KUKU HAYARA & MATHEW YUKAI MANDALO
Applicants

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Mendi: Makail, J
2009: 26th & 27th March

CRIMINAL LAW - PRACTICE & PROCEDURE - Bail - Second application - Change of circumstances - First application refused - Applicants charged with armed robbery & demand for compensation - Whether National Court has jurisdiction to hear second application - Application refused - Criminal Code - Sections 386(1)&(2)(a),(b)&(c), & 390A(a)&(b)(i) - Bail Act - Sections 6,8,13&16.

Cases cited:
Re Thomas Markus (1999) N193
Enana Idon -v- The State (2001) SC669
Michael Philip -v- The State (2007) N3217
Kuku Hayara -v- The State (2008) N3488
Mathew Yukai Mandalo -v- The State: MP 420 of 2008 (Unnumbered & Unreported Judgment of 18th November 2008)

Counsel:
Mr. P Kumo, for the Applicants
Mr. J Waine, for the Respondent

RULING ON APPLICATION FOR BAIL

27 March, 2009

1. MAKAIL J: The Applicants, namely Kuku Hayara and Mathew Yukai Mandalo are committed to stand trial in the National Court for one count of aggravated robbery and one count of demand for compensation contrary to sections 386(1)&(2)(a),(b)&(c) and 390A(a)&(b)(i) of the Criminal Code respectively. 

2. Each of them separately applied for bail before me and I refused their applications last year at Mt Hagen National Court. I refused Mr. Hayara’s application on 15th September 2008 and Mr. Mandalo’s on 18th November 2008. See my judgments of Kuku Hayara -v- The State (2008) N3488 and Mathew Yukai Mandalo -v- The State: MP 420 of 2008 (Unnumbered & Unreported Judgment of 18th November 2008).
Each of them bring a second application for bail under sections 6 and 8 of the Bail Act and section 42(6) of the Constitution citing change of circumstances as the basis of the applications. Both give the following as constituting change of circumstances:

1.	Police Investigations have been completed since the last applications for bail last year and that the chances of them interfering with State witnesses are very remote, if not non existent. They say that the Court refused their first applications because at that time police were still investigating the alleged offences and the Court had said that there is a possibility that they would interfere with the witnesses.

Mr. Hayara relies on his Affidavit sworn on 16th March 2009 and filed on 17th March 2009 from paragraphs 6-8 as evidence of this change in the circumstances. As for Mr. Mandalo, he relies on paragraphs 5-7 of his Affidavit sworn on 16th March 2009 and filed on 17th March 2009 as evidence of this change in the circumstances.

2.	There are new guarantors who live in close proximity to them. Mr. Hayara says that he is from Kikita village which is near Tari town and Mr. Mandalo says that he is from Wabia village which is situated along the main highway between Ambua lodge and Tari town.

The new guarantors are either living in same villages as each of them or working and living in Tari town. For example, the proposed guarantor Timothy Haraya deposes in paragraphs 1 and 6 of his Affidavit sworn on 16th March 2009 and filed on 17th March 2009 that he is a councilor of Rawanda Local Level Government and resides at Kikita village and is willing to pledge K200.00 cash surety for Messrs Hayara and Mandalo. The other proposed guarantor, Roger Harabe deposes in paragraphs 1 and 8 of his Affidavit sworn on 11th March 2009 and filed on 17th March 2009 that he is a headmaster of Tari Top Up Demonstration School and resides at the school in Tari town and is willing to pledge K200.00 cash surety for Mr. Hayara.

The next proposed guarantor, Alia Wape who deposes in paragraphs 1 and 7 of his Affidavit sworn on 11th March 2009 and filed on 17th March 2009 that he is from Piribu village which is just behind the Tari Court house and is an Electoral Officer of the Member for Tari/Pori. He is willing to pledge K200.00 cash surety for Mr. Mandalo. Another one of the proposed guarantor for Mr. Mandalo is Mrs. Claire Mathew who deposes in paragraphs 1 and 9 of her Affidavit sworn on 10th March 2009 and filed on 17th March 2009 that she is a keyboard operator at Tari hospital and married to a man from Kikita village and resides there. She is also willing to pledge K200.00 as cash surety for Mr. Mandalo.

The last proposed guarantor, Elizah Mamu deposes in paragraphs 1 and 6 of his Affidavit sworn on 16th March 2009 and filed on 17th March 2009 that he is an Administrative Manager to the Governor for Southern Highlands Province and resides at Mendi town. He is willing to pledge K200.00 cash surety for Messrs Hayara and Mandalo.

In the first applications, they say that their proposed guarantors were all residents of Mt Hagen town, hence there was no proximity between them and these proposed guarantors and that was one of the reasons for the Court to refuse their applications. Now that the proposed guarantors are living in close proximity to them, there is a change in the circumstances.

3.	The impounded motor vehicle has been recovered and returned to the owners, Oil Search Limited and Gigira Development Limited. Mr. Mandalo gives this evidence in paragraph 11 of his Affidavit sworn on 16th March 2009 and filed on 17th March 2009.

3. Adding to the change in circumstances, they seek to correct a misstatement the Court made when refusing the first application by saying that the misstatement had influenced the Court to rule against their applications. The misstatement or misconception is that their people were the ones who held up the police and stole their firearms at Nipa. That influenced the Court to think that police firearms might not be recovered if both of them were released on bail. They say that it was the Nipa people who did that. Their people were the ones who impounded the motor vehicle belonging to Oil Search Limited and Gigira Development Corporation Limited near Tari which was a completely separate incident to the Nipa hold up incident.

4. For Mr. Mandalo alone, he also seeks to clear a misconception that the Court had that he hails from a remote village somewhere in Tari. He deposes in paragraphs 12, 13 and 14 of his Affidavit that:

"12.	One of the reasons why bail was refused to me in the first instance by the National Court was, as the Judge mentioned, that I came from a remote village in Tari in the Southern Highlands Province and thus accessibility to locate me in the event of my absconding bail was very slim. He also added that my place was also far from Mendi and Mt Hagen.

13.	This view by the Court is a completed misconception. I do not come from a remote village where accessibility to locate me is very slim. Tari is not remote as one may believe. Tari is accessible by a very good road system from Mendi. Now there is a National Court building in Tari and a National Court Circuit to Tari. Tari has a police station and above that now there is a large contingent of police personnel present in Tari due to the large scale of Oil and Gas Development as well as the road infrastructure development now in progress.

14.	My village of Wabia is situated beside the main highway to Tari from Mendi. It is situated between Ambua Lodge and Tari station. In fact, my village is only 15 minutes drive away from Tari……….."

5. The State did not oppose the applications because police have instructed the State prosecutor not to. But the State asks for strict conditions of bail and K250.00 cash surety for each guarantor if bail is granted to each of the applicant.

6. First matter for me to consider is that, can the National Court be it the same judge or a different judge hear the same application the second time based on change of circumstances? In order to properly understand and appreciate the importance of this issue in the present cases, I set out in full section 13 of the Bail Act below because I consider it applicable in these cases, rather than section 6 and 8 of the same Act:

"Part IV - Procedure on 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". (Underlining is mine).

7. Returning to the issue I posed above, there seemed to be two different views on this issue. First, there is the view that, the National Court be it the same judge or a different judge can hear the same application, the second time but there must be change in the circumstances from the first application. See Re Thomas Markus (1999) N193, a judgment by His Honour Injia J (as he then was). 

8. Then, there is the other view, that, where the National Court has refused a bail application, an applicant may reapply for bail to the Supreme Court. See Michael Philip -v- The State (2007) N3217, a judgment by His Honour Gabi J, of 1st June 2007 which took this view. The reapplication maybe made to a single judge of the Supreme Court if there has been change of circumstances like in the case of Enana Idon -v- The State (2001) SC669. There, the first application for bail before His Honour Lenalia J, in the National Court was refused. The applicant re-applied under section 13(2) of the Bail Act to Her Honour Davani J, sitting as a single judge of the Supreme Court. Her Honour 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.

9. On my part, on my reading of section 13(2) of the Bail Act, it is my respectful view that where an applicant is refused bail by the National Court, and desires to reapply for bail, he must apply to the Supreme Court. In the Supreme Court, the applicant has two options; apply to a single judge of the Supreme Court by citing change in circumstances as the basis of the application or apply to the full bench of the Supreme Court, usually constituted by three judges if he is unable to show change in circumstances. See sections 161(2) and 162(2) of the Constitution. 

10. I hold this view because if section 13 of the Bail Act is read as a whole, it sets out the different Court levels by which the jurisdiction to grant or refuse bail maybe exercised. For example, an application for bail maybe made to a Magistrate, but if refused, the applicant may apply to a judge of the National Court. If the application is refused by the judge of the National Court, the applicant may apply to the Supreme Court. That is why it is mandatory under section 16 of the Bail Act for the bail authority, be it the police or the Courts (Magistrate or Judge) to furnish a copy of the reasons for refusing bail because an applicant is required to produce it at the hearing of the application before the next level of bail authority.

11. And I think there is good reason for an applicant for bail to apply to the next level of bail authority up the hierarchy than to the same bail authority be it constituted by the same person or a different person, and that is, to prevent abuse of the exercise of that jurisdiction by applicants. Otherwise, applicants will simply go in and out of the same bail authority like the National Court with the "same" application until they get bail.

12. The view I hold is the same as His Honour Gabi J’s in the Michael Philip’s case (supra) where he gave the following reasons:

"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". 

13. That being the position in law, I am afraid to say that the applicants in this case have come to the wrong Court. I have earlier on refused both applications and have ceased jurisdiction. If they desire to reapply for bail, they should apply to a judge of the Supreme Court citing the change in circumstances they have referred to above as the basis of the applications or apply to a full Supreme Court bench of three judges if they are unable to show any change of circumstances.

14. In fact, I find that what the applicants have done here is the very thing that His Honour Gabi J, in Michael Philip’s case (supra) pointed out and tried to discourage when he stated that, "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 also said the same thing above and wish to reiterate here that it is a misconception by applicants to reapply to the same bail authority for bail if it is refused by the bail authority in the first instance. 

15. In these present applications, the purported changes in circumstances raised by the applicants are matters for the Supreme Court to decide because I have already made a decision on the same applications. For these reasons, I will refuse their application once more.

16. Having reached that decision, it is not necessary for me to decide the second issue of whether the circumstances they have referred to above constitute change in circumstances from the first applications.

17. In the circumstances, I refuse both applications and the applicants shall be remanded until further orders.

Ruling accordingly.
_______________________________________
Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Applicants