N5061

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 725 OF 2012

BETWEEN:

THE STATE
Respondent

AND:

MOHAMAD ABDUL ALIM
Applicant/Defendant

Waigani: Davani, J
2013: 15th & 22nd January

BAIL APPLICATION – Application to vary after an earlier refusal – Court must be satisfied applicant will return to Papua New Guinea – Court to exercise its discretion – s. 23 of Bail Act.

BAIL APPLICATION – Applicants earlier application refused – applicant reapplies to vary bail conditions – Court must consider change in circumstances – application to single Judge of the Supreme Court

Brief Facts

After an earlier refusal to vary bail conditions, application made to the National Court, the applicant reapplied again, before this Court, to vary bail conditions. The applicant offered an higher amount, to the amount earlier offered, as surety. He also presented evidence of a medical operation. This evidence, although was available before the earlier Court, was not put before that Court, but is now before this Court.

Held

1.	After an earlier refusal, an applicant reapplying to vary bail must show a change in circumstances that existed, after the earlier application was made.

2.	The application must be made to a single judge of the Supreme Court.

3.	If there is an appeal pending before the Supreme Court, then the applicant must apply to the full bench of the Supreme Court.

4.	In this case, there is likelihood that the applicant, a Bangladeshi National, will not return to Papua New Guinea, because, amongst other reasons considered by the court, there are no Executive arrangements or legislation in place, that would be applied by this Court in ordering the applicants return to Papua New Guinea, to face the very serious charges he is charged with, in the event he breaches bail conditions and does not return to Papua New Guinea.

5.	The application to vary bail is refused.

Cases cited

Re Steven McMillan [1980] PNGLR 158
In the matter of s. 42 of the Constitution (2007) SC 858 
Bernard Uriap v. the State (2009) N3822
Application of Kepas Hiviki (2013) SC 1217

Counsel:

Mr M. Philip, for the Applicant/Defendant
Mr J. Wala, for the State

DECISION

22nd January, 2013

1.	DAVANI J: Before me is Notice of Motion filed on 7th January, 2013 by Korerua & Associates Lawyers. The application effectively seeks a variation of National Court bail conditions imposed upon the applicant Mohamad Abdul Alim ('Applicant'). 

2.	On 1st October, 2012, K500 cash bail imposed by the Port Moresby District Court was reviewed and increased to K1,000.00 by the Waigani National Court. Other conditions were imposed and which read as follows:

"1.	You shall report to the National Court every Monday between 9:30am and 3:30pm;

2.	You shall not interfere with any State witnesses;

3.	You shall not leave the National Capital District without leave of the National Court;

4.	You shall nominate at least two guarantors to file affidavits before the next directions hearing;

5.	You shall provide details of your residential address on the next directions hearing;

6.	You shall provide details of your contact to the Assistant Registrar;

7.	You shall instruct a lawyer to assist you in this case;

8.	The lawyer shall file a notice of appearance before the next directions hearing; and

9.	On the next directions hearing the Court shall review conditions 4, 5, 6, 7 and 8".

Background

3.	The applicant is charged with the offence of bribery under s. 97B (1) (b) of the Criminal Code. The penalty for that offence is a fine at the discretion of the Court or imprisonment for a term not exceeding 7 years or both.

4.	On 20th December, 2012, the National Court delivered a decision in relation to the applicant's application to vary bail because he wanted to leave Papua New Guinea to travel to Dhaka in Bangladesh to visit his sick father. Justice Hartshorn refused this application and delivered an ex tempore ruling. A copy of the extempore decision is before me attached to the applicant's affidavit, sworn and filed on 11th January, 2013.

5.	In those reasons, Justice Hartshorn noted that this was an application made pursuant to s. 23 (1) (2) of the Bail Act, seeking leave of the Court to allow the applicant to travel to Dhaka in Bangladesh to visit his sick father. 

6.	In the application before Justice Hartshorn, the applicant submitted that he would pay K10,000.00 as surety. He also attached copies of documents in relation to the medical condition suffered by his father.

7.	Two guarantors had deposed in that application that two companies will give security of K20,000.00 each and that together with this, the applicant will pay K10,000.00 to be held by the State. A separate payment of K1,500.00 will be held by the State if the application is granted, a total sum of K61,500.00.

8.	His Honour Justice Hartshorn noted that the application was opposed by the State, who submitted that because the applicant is only prepared to pay K10,000.00, that this was indicative of the applicant not returning to Papua New Guinea to face criminal proceedings.

9.	On reviewing the evidence, Justice Hartshorn noted that there was no evidence before the Court that the applicant's father's condition had worsened and that there was no evidence on the applicant's actual present condition (at the time of the application before the Judge).

10.	Justice Hartshorn was not satisfied that the applicant had demonstrated good reasons to leave Papua New Guinea. The Court also noted the conditions specified in s. 23 (2) of the Bail Act that the Court must be satisfied that the applicant will return to Papua New Guinea for the criminal proceedings. His Honour said:

"The two companies who will provide K40,000.00 is not, to my mind an indication that the applicant will return. Neither are the depositions that Mr Hussein will ensure that the applicant will return and Mr Hussein will hand in his passport. How can Mr Hussein ensure the applicant's return and how does the handing in of his passport assist that the applicant is not a PNG citizen? He is charged with serious criminal offence. He is only willing to give a security of K10,000.00 himself. There is no evidence that his father is sick now; that his father was discharged from hospital approximately three months ago and the application is only made now are all factors that lead me to the view that this court is not satisfied that the applicant will return to Papua New Guinea. The relief sought in the amended notice of motion filed on 21st December, 2012 is refused."

Analysis of Evidence and the Law

11.	Section 23 of the Bail Act sets out the conditions that will need to be satisfied on an application to vary bail conditions. It reads:

"23.	Permission to leave the country in certain cases.

(1)	Where for urgent personal 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 Court 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.

(3)	A permission granted under this section may be subject to conditions.

(4)	A person may apply for permission under this section at the same time that he applies for bail.

(5)	Where permission is granted under this section, a note to the effect shall be endorsed on the copy of the bail certificate held by the person granted bail."

12.	This application is being made two (2) weeks and 1 day after the earlier refusal by Justice Hartshorn. This then raises the issue of whether the applicant should be making this application before the National Court. Of course there are situations where because an accused is required to travel out of the country because of employment or medical reasons, that the National Court sometimes finds itself constantly entertaining applications to vary bail conditions and eventually varying bail conditions, on applications made by the same accused.

13.	However, there are situations where an applicant, upon a refusal to vary bail conditions, then returns to court immediately, with another application, this time, bringing in additional material to rectify the inadequacies or anomalies that were present in the earlier application. This application is one such case. The Bail Act states that the applicant can apply to either the National Court or the Supreme Court. But it does not say where an applicant can go to after a refusal. In my view, such an application should be made to a single Judge of the Supreme Court and relying on events that occurred after refusal of the earlier application. That would assist the Court in determining whether there has been a change in circumstances and will not be seen by the Court as an abuse of process.

14.	I draw this analogy with a bail application, where after a refusal, the applicant should not be returning again to the National Court, relying on the same set of circumstances, as that is deemed to be an abuse of process. (See Bernard Uriap v. the State (2009) N3822).

15.	In this case, the applicant relies on a medical report showing his father has just had an operation. Although submissions that his father was operated on, was made before Hartshorn .J, confirmed by a medical report now before me, this report was not put before Justice Hartshorn. The applicant did not explain why he did not do so. In The Application of Kepas Hiviki (2013) SC 1217, I discussed the law in applications for bail before a Single Judge of the Supreme Court, then found that the applicant could not be relying on a change in circumstances, after an earlier refusal of bail, if the evidence he was relying on and now before me, were available to him, when he made the application for bail.

16.	In my view, any Court hearing an application to vary bail conditions, after an earlier refusal, must be slow to accede to applications, and must consider if there has in fact been a change in circumstances.

17.	I am also of the view that after a refusal by the National Court, the application to vary based on a change in circumstances, must be made to a single Judge of the Supreme Court and in the event that is again refused, then the applicant can apply to the full bench of the Supreme Court.

18.	In the Application of Kepas Hiviki (supra), I discussed what an applicant for bail should do, after a refusal by the National Court. I discussed the approaches taken by both the National and Supreme Courts over the years. Applications to vary bail conditions have always been entertained by the National court because the Bail Act provides for that. Section 23 (1) of the Bail Act states that the Supreme Court can entertain applications to vary. My view, as was held by Kapi DCJ as he then was, in In the matter of s. 42 of the Constitution (2007) SC 858, is that, if there is an appeal pending in the Supreme Court and the applicant is on bail, then the applicant should apply to the full bench of the Supreme Court, to vary the bail conditions.

19.	 Before Justice Hartshorn in the National Court, the applicant pledged the amount of K10,000.00 as security to guarantee his return. In this application, the applicant deposes in his affidavit sworn and filed on 7th January, 2013, that he will pay a further K100,000.00 as surety to comply with bail conditions.

20.	I note also that although his lawyer submits that Deshbesh Enterprises has "substantial investments… to the tune of K17,000,000.00" (re par. 24 of written submissions), there is no evidence to that effect. There is also no other evidence on the applicants supposed affiliations with that company. I would prefer a report from an independent accountant. I say this because these applications must be treated with seriousness. The Court must ensure that there is evidence before it that will guarantee the applicant's return.

21.	At the time of making the application, the applicant proposed to depart PNG for Bangladesh on 12th January, 2013 and to return to PNG on 25th March, 2013. The law is that the exercise of the Court's power is at the Court's discretion subject to the Court being satisfied that the applicant will return for his case to be heard. (Re Steven McMillan [1980] PNGLR 158 N237). 

22.	The applicant also relies on a letter from one Anjonara Khatun dated 8th January, 2013 which states that his father's condition has worsened, that he has stopped eating and drinking and that whenever he awakens from sleep, he always asks for the applicant.

23.	What I have to be satisfied with is that the applicant will return to face the very serious charge of bribery. This is a charge where the State alleges that the applicant had attempted to bribe two policemen by paying them the sum of K5,000.00 each and for them to abandon investigations into the applicant's alleged involvement into the pirating of music. He is also suspected of having produced counterfeit high school certificates, amongst others.

24.	The applicant is a Bangladeshi national. If the applicant leaves Papua New Guinea, is there any likelihood of him returning? Apart from the fact that the securities that he intends to put up will not be of any use, I am aware that there are no political or Executive arrangements in place to have wanted criminals from Bangladesh returned to Papua New Guinea, done by an arrangement between governments. I refer to more particularly, Conventions or even legislation. My view is that, with that obvious difficulty in mind, it is only proper under the circumstances that the status quo remain as it is and that the applicant answer to the charges, by remaining in Papua New Guinea and by being available on the date he is required to be in Court because there is no likelihood or guarantee that he will return to the country.

25.	It is for those reasons, that I will refuse the application.

Conclusion

26.	The National Court must be slow to entertain applicants who continually return to Court to vary bail conditions after an earlier refusal, relying on the same or similar reasons. Therefore, ideally, if an application to vary bail conditions is refused by the National Court, the applicant must then apply to the Supreme Court, single Judge, if there has been a change in circumstances. And if this application is refused by the single Supreme Court Judge, then, if he continues to pursue these orders, apply to the full bench of the Supreme Court.

27.	Or, if an applicant has an appeal pending in the Supreme Court, and he is on bail, then he should apply to the full bench of the Supreme Court.

Formal Orders

28.	The Court's formal orders are:

The Notice of Motion filed by Korerua and Associates Lawyers on 7th January, 2013 is dismissed.

________________________________________________
Korerua & Associates Lawyers: Lawyer for the Applicant
Public Prosecutor's Office: Lawyer for the Respondent