Sia v State [2011] PGNC 60; N4334 (19 May 2011)

N4334

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO. 29 OF 2010

SIMON SIA
Applicant

v

THE STATE
Respondent

Goroka: Ipang AJ
2011: 19 May

CRIMINAL LAW – Applicant originally from Malaysia charged for attempting to pervert course of justice contrary to Section 136 of the Criminal Code Act, applies to vary his bail conditions so that he could travel out of PNG to Brisbane, Australia.

BAIL ACT, CHAPTER 340 – Section 23(1)(2) requirements need to be satisfied – Bail variation sought must be of or to an order actually made and in operation or capable of execution. Variation has to be of an existing order and must be accompanied by evidence that was not available when the original order was made, i.e. evidence of conduct and circumstances of the applicant and the need to satisfy applicant will return to the country for the proceeding.

Cases Cited
Papua New Guinea Cases
Nil

Overseas Cases

R. (Stevens) v Truro Magistrates' Court [2001] EWHC Admin 558; [2002] 1 WLR 144
Counsel

D. A. Umba, for the Applicant

A/Public Prosecutor – Nil Appearance

RULING ON APPLICATION FOR VARIATION OF BAIL CONDITIONS

19 May, 2011

1. IPANG, AJ: The applicant Simon Sia through his counsel Mr. Umba filed an urgent application for variation of bail conditions pursuant to Section 23(1) of the Bail Act Chapter 340. The Section 23(1) states:
   

"(1) Where for urgent reasons or by reason of his occupation a person granted bail in relation to a proceeding wishes to leave the country for a temporary period before the commencement or conclusion of that proceeding, he may, after reasonable notice to the other party, apply to the National or Supreme Court for permission to do so.

(2) Permission shall not be granted under Subsection (1) unless the Court is satisfied that the person will return to Papua New Guinea for the proceeding."

2. On the 2 February, 2010 His Honour Yagi J reviewed the applicant's bail conditions initially set by the District Court and granted the applicant the following conditions:
   
   1. The applicant's K1,000 cash bail from District Court is converted to National Court bail;
      
   2. Applicant to attend all National Court call-over in Goroka until his case is dealt with;
      
   3. Not to interfere with potential State witnesses in connection with the allegations;
      
   4. To surrender his passport to the Assistant Registrar National Court Goroka to be released on application as and when deemed necessary.
      
3. In support of his application for variation of bail conditions, the applicant relied on his affidavit sworn and filed on the 18 May, 2011. He deposed of the following facts:
   
   1. That he is the Managing Director of the Asia Pacific Investments Ltd which operates business in Goroka, Kainantu and Mt Hagen.
      
   2. He stated that his business in the said Company totaled well over 50 million Kina. He said he has lived and worked in Goroka for over 20 years.
      
   3. He said he has been committed to stand trial in the National Court in November 2009. As ordered by Court, his passport has been surrendered and kept under the custody of the Assistant Registrar.
      
   4. In paragraph 4 he told this Court that he needs to travel out of Goroka to Brisbane, Australia for recreation leave. Annexed 'A' was his travel itinerary and copy of the E-Ticket. He said he will leave Goroka on the 23 May, 2011 and return to Goroka on the 28 May, 2011.
      
4. The Senior Prosecutors from the Office of Acting Public Prosecutor were out of the Province and Goroka town so could not be present when this application was made. However, notice was sent to the Acting Public Prosecutor in which no objection was raised against the application. Mr. Umba further submitted that previous similar applications were made at the District and National Courts so this is not a new application. Whilst I agree in lesser degree with the counsel, I am cautious and mindful that each application must be dealt with on its own merit.
   
5. It is Item 4 in the original bail condition which need to be varied and I am satisfied the applicant has satisfied the requirements of Section 23(1) of the Bail Act. In that applicant will be out of the country for only 5 days which is for a temporary period and I am also satisfied he will return to the country as he has the return ticket and has investments to the total of over 50 million Kina in the country. In R (Stevens) v Truro Magistrates' Court [2001] EWHC Admin 558; [2002] 1 WLR 144, the presiding Judge considering variation of bail conditions to consider the suitability of conditions afresh which included condition of security. In this case the applicant has well over K50 million worth of investments in the country. With the evidence produced in Court, I am also satisfied he will also be in time for the call-over of his case.
   
6. I grant the following orders sought in the application;
   
   • (i) Pursuant to Section 23(1) of the Bail Act Chapter 240 permission is granted to the applicant to leave the country temporarily;
     
   • (ii) The Assistant Registrar shall release to the applicant his passport on the 20th May, 2011 for his travel to Brisbane, Australia;
     
   • (iii) The applicant shall return his passport to the Assistant Registrar, Goroka on the 30th May 2011 after his return from Brisbane, Australia.
     

____________________________________
Public Prosecutor: Lawyer for the State

Umba Lawyers: Lawyer for the Applicant