In re Application for Bail by Bobby Selan [2009] PGNC 83; N3690 (24 July 2009)

N3690

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 398 OF 2009

IN THE MATTER OF AN APPLICATION
FOR BAIL BY BOBBY SELAN

Madang: Cannings J
2009: 21, 24 July

CRIMINAL LAW – PRACTICE AND PROCEDURE – application for bail – Constitution, Section 42(6); Bail Act, Section 6 – application made to National Court three months after earlier refusal of bail by another Judge – whether applicant can show a change of circumstances warranting grant of bail.

A remandee facing trial on one count of armed robbery and 14 counts of kidnapping applied to the National Court for bail, three months after a similar application had been refused by another Judge of the National Court.

Held:

(1) A person who is refused bail by a Judge of the National Court may if there has been a relevant change in circumstances make a fresh application for bail to the same or another Judge of the National Court.

(2) The change in circumstances must relate to the reasons given under Section 9(1) of the Bail Act for refusing bail in the earlier application.

(3) It is incumbent on the applicant to notify the court of the earlier refusal of bail, provide the court with a copy of the reasons given for refusing bail, present evidence of a change in the circumstances and show how the change in circumstances is relevant.

(4) Here, the applicant failed to properly notify the court that bail had been earlier refused, did not provide the court with a copy of the reasons given for refusing bail, did not present evidence of a change in circumstances or show how the change in circumstances was relevant. The application was accordingly refused.

Cases cited

The following cases are cited in the judgment:

Bail Applications by Ruben Micah & Joyce Maima, MP No 417 of 2008, 15.10.08
Michael Philip v The State (2007) N3217
Re Thomas Markus (1999) N1931

APPLICATION

This was an application for bail under Section 42(6) of the Constitution and Section 6 of the Bail Act.

Counsel

B Meten, for the applicant
M Ruarri, for the State

24 July, 2009

1. CANNINGS J: Bobby Selan has been charged in connection with the July 2008 robbery of the Bank South Pacific branch at Madang. He has been committed for trial on 14 counts of kidnapping and one count of armed robbery. His alleged role was to provide accommodation at his residence in Lae for those who actually kidnapped bank staff and their families and robbed the bank. He has been in custody since October 2008 and is applying for bail under Section 42(6) of the Constitution and Section 6 of the Bail Act.

2. He has already applied for bail to the National Court and had it refused. This was in proceedings known as MP No 93 of 2009. Gavara-Nanu J refused bail on 19 March 2009.

THE STATE’S POSITION

3. The State opposed bail during the first application and opposes bail again. Mr Ruarri, for the State, submits that, as the applicant did not apply to the Supreme Court after refusal of the first bail application the only way he can succeed on a second application to the National Court is if he can prove a change in relevant circumstances. He has not done that so bail should be again refused.

REFUSAL OF BAIL BY NATIONAL COURT

4. A person who is refused bail by a Judge of the National Court may apply for bail to the Supreme Court under Section 13(2) of the Bail Act, which states:

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.

5. If the unsuccessful applicant does not apply to the Supreme Court he or she can make a fresh application to the National Court before the same or a different Judge. But if the latter option is taken special considerations arise. A change in circumstances must be proven to exist, such as to warrant a reconsideration of bail, as explained by Injia J as he then was in Re Thomas Markus (1999) N1931:

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

6. I point out that the right to make a fresh application to the National Court – rather than going to the Supreme Court under Section 13(2) – is not expressly conferred by the Bail Act. Some Judges have taken the view that there is no such right and that an unsuccessful applicant cannot go back to the National Court – they must go straight to the Supreme Court under Section 13(2). Gabi J expressed that view in Michael Philip v The State (2007) N3217. With respect, I prefer the view taken in Re Thomas Markus to that taken in Michael Philip’s case. I think it more effectively implements the policy in Section 42(6) of the Constitution that there is a presumption in favour of bail and that a person detained in custody has a right to bail unless the interest of justice require otherwise.

7. The practical effect of the decision in Re Thomas Markus is that the change in circumstances must relate to the reasons given under Section 9(1) of the Bail Act for refusing bail in the earlier application.

8. This means that it is incumbent on an applicant who has earlier been refused bail to:

1. notify the court of the earlier refusal of bail;
   
2. provide the court with a copy of the reasons given for refusing bail earlier;
   
3. present evidence of a change in the circumstances; and
   
4. show how the change in circumstances is relevant.
   

THE PRESENT APPLICATION

9. Bobby Selan’s fresh application fails to meet any of the above requirements. The application does not formally notify the court that bail had been earlier refused. His lawyer, Mr Meten, failed to notify the court of this crucial fact and it was only when the State’s counsel addressed the court that the court was appraised of it.

10. The applicant has not provided the court with a copy of Gavara-Nanu J’s reasons for refusing bail, and the reasons are not located on the file used for the earlier application.

11. No evidence has been presented of a change in relevant circumstances. Mr Meten has pointed out that the applicant has been in custody for three extra months since the earlier refusal of bail. The applicant has spoken about his concern for the welfare of his wife and children and the risks they face in travelling frequently between Lae and Madang. These concerns appear genuine. In fact, if this had been the first bail application, it would perhaps have stood a good chance of success. A number of reputable people have sworn affidavits in support of the application, the applicant has a steady job and has promised to attend call-overs in Madang even though he wants to go back to Lae to live. Despite the serious nature of the charges he is facing it would not appear that he is a high bail risk. On the other hand, it appears that a substantial amount of the proceeds of the robbery remain un-recovered, so that by itself it might be a good reason for refusing bail. A number of other people charged in connection with the BSP Madang robbery have been refused bail for similar reasons (e.g. Bail Applications by Ruben Micah & Joyce Maima, MP No 417 of 2008, and 15.10.08).

12. However, Mr Meten has not demonstrated what exactly the change in circumstances is and how the change in circumstances is relevant.

13. For these reasons, I refuse the application.

ORDER

(1) The application for bail dated 20 July 2009 is refused.

(2) The ground of refusal is that bail has already been refused by the National Court and the applicant has failed to show a change in relevant circumstances since the earlier refusal of bail in MP No 93 of 2008 on 19 March 2009.

Ordered accordingly.

___________________________________________
Narokobi Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyer for the State