Ryals v State [2022] PGNC 191; N9636 (25 May 2022)

N9636

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA No. 557 of 2022 (No 2)

In the matter of an Application for
Variation of Bail Conditions Pursuant to Section 20 and
An Application to Leave the Country Temporarily Pursuant to Section 23 of the Bail Act, Chapter No. 340

BETWEEN:

ANTHONY JOHN RYALS
Applicant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Ganaii, AJ
2022: 25^th May

BAIL – Charge of Organising Unlawful Games – Section 244 Gaming Control Act of 2007 – Application for variation of bail conditions pursuant to s 20 and application for permission to leave the country temporarily pursuant to s 23 of the Bail Act and Rules 17 and 18 of the Bail Rules 2021.

Cases Cited

Sharp v State [2015] PGNC 285; N6236
Xue Zhufu Dickson v The State (2012) N4581

Counsel

Ms Kametan , for the State Respondent
Mr B. Frizzell, for the Applicant

RULING ON AN APPLICATION FOR VARIATION OF BAIL CONDITION AND APPLICATION FOR PERMISSION TO LEAVE THE COUNTRY TEMPORARILY

25^th May, 2022

1. GANAII, AJ: The applicant applied for variation of bail conditions and permission to leave the country temporarily pursuant to s 20 and s 23 of the Bail Act and Rules 17 and 18 of the Bail Rules 2021.
   
2. Learned Counsel for the applicant, Mr Frizzell had filed in Court a Committal Notice showing that the applicant had been committed to stand trial in the National Court on the 11^{th of} May 2022, for a charge laid under section 244 of the Gaming Control Act of 2007.
   
3. The offence provision (s 244) provides for the offence of Organising Unlawful Games. The penalty for the offence in the case of a natural person, is a fine not exceeding K5, 000 or a term of imprisonment not exceeding 12 months; and for Body Corporate, a find not exceeding K10, 000.
   
4. The penalty for the offence of which the applicant is charged with informs this Court that this matter is summary in nature and could be dealt with in the District Court, in its Grade Five or the Summary Court jurisdiction. That being the case, my view is that this matter can be prioritised and this issue should be raised as a preliminary matter before the National Court when the Committal file is formally transmitted to the National Court Registry and the matter is properly brough within the jurisdiction of the National Court.
   
5. For current purposes, that is in the matter of a variation application and application for permission to leave the country temporarily, I have heard the matter and will now determine this matter after the Court’s acceptance of the following: the Notice of Motion and appropriate forms filed before me, the supporting affidavit of the applicant, the Committal Notice referred to above, the Information laid by Police that has been filed and the National Court Bail Orders and Conditions Court granted by this Court.
   
6. The applicant has relied on the appropriate Forms 10 and 11 of the Bail Rules 2021. Mr Frizzell has referred the court to the case of Sharp v State [2015] PGNC 285; N6236 (17 December 2015), citing the case of Xue Zhufu Dickson v The State (2012) N4581. These two cases are authority for such applications and say that before an application for permission to leave the country temporarily is mounted, an applicant must satisfy the criteria under s. 23 (1) which are: firstly, whether the applicant has shown that his reasons for permission to travel are urgent reasons either personal or related to his occupation and secondly, whether he had given sufficient notice to the other party in the proceedings and thirdly, whether there is a pending matter in court that involves the applicant. After meeting the prerequisites, the applicant must then satisfy the court with the requirement under s. 23 (2) that he will return to the country for the proceeding.
   
7. Mr Frizzell submitted that the applicant’s reason for seeking leave to travel oversea is because he needs urgent medical attention which is not available within county but is available in Australia where the applicant originates from and where he has been obtaining his usual medical advice and treatment since the diagnosis of his medical conditions in 2012. The applicant relies on his own affidavit, which has annexures “G” and “H” which are appointment and consultation reminders to the applicant by medical specialists in Australia and annexure “I” which is a Referral by the Medical Doctor of the Gerehu Provincial Hospital for specialist care and treatment overseas.
   
8. The applicant states that he will travel from Port Moresby to Sydney and is expected to be away from the period Monday 23^rd or 30^th May 2022 to Monday 13^th or 20^th June 2022. The applicant has funds held in trust by his lawyer to facilitate his travel out of and return to the country. The applicant is willing to pay cash surety to guarantee his return.
   
9. State objected to both applications. Ms Kametan argued two grounds. Firstly, that the applicant has not shown any urgency and secondly, the applicant has not given sufficient details of this travel itenary.
   
10. Learned State prosecutor, Ms Kametan submitted that the application is not supported with sufficient evidence to demonstrates the urgency for the applicant to urgently leave the country. The medical reports relied on show that the last time the applicant went to the Doctors was in 2019 and that was more than two years ago. Further, State prosecutor argued that the application does not contain sufficient evidence to show the applicant’s travel itenary and more particularly specific date for his travel out of and back to the country. State argued that unless that is shown, they object to the applications.
    
11. State Prosecutor nevertheless submitted that if the Court is minded to granting the application than stringent conditions be imposed including surety sums as guarantee.
    
12. Having heard both counsels, the Court is satisfied that the combined effect of the medical reports by the two specialist doctors in Australia and the Medical Practitioner in PNG demonstrated three main points: firstly, that the applicant suffers from mainly hypertension, hypercholesterolemia and tumour in the brain; secondly, that he had been notified or reminded of his review and Doctors appointment in 2019 and he had been notified of his Doctors request for monitoring and treatment of an intracranial tumour as a matter of urgency in 2021 which was left unmonitored due to Covid 19 restrictions on travel, and thirdly, that the expert care and treatment needed for his medical condition especially his condition of brain tumour is not available within country (PNG).
    
13. As per above, I am satisfied that the applicant has an urgent personal reason to travel overseas. He needs urgent medical attention for among others his medical condition of intercranial tumour thus fulfilling the requirement of s 23 of the Bail Act.
    
14. Based on the Committal Court Order of the Committal Magistrate His Worship Billy Pidu of the Waigani District Court dated 11^th of May 2022, I am satisfied that the applicant has been committed to trial in the Waigani National Court on a charge of Organising Unlawful Games under the Gaming Control Act of 2007.
    
15. Due to the conditions of his National Court Bail, that this Court has heard and granted today (refer to BA 557 (No 1) Ryals v The State), and pursuant to section 8 of the Bail Act and Rule 10 of the Bail Rules 2021, I am also satisfied that the requirement for variation of those conditions under s20 of the Bail Act is also necessary.
    
16. Further, the court is satisfied that the applicant understands his obligation as an accused person and will appear in Court to defend his case as and when his matter is called.
    
17. State has not objected on the basis that the applicant will abscond. The State has not objected to the grounds that the applicant conducts business in the county and is a resident within the country for employment purposes pursuant to the terms and conditions of his permit.
    
18. Upon citing of the applicant’s passport Number PA3170042, under the name Anthony John Ryals, which is now in the custody of the National Court Crimes Registrar, I am satisfied that the applicant’s resident employment visa (or work permit) is valid until December 2022 and the applicant has a reason to return and remain in the country.
    
19. The court is satisfied that given the above as well as his undertaking to attend to Court to defend his case, and his willingness to pay surety sums to show his commitment, the applicant has demonstrated that if granted bail he will appear in Court as and when his matter is called.
    
20. Based on the affidavit of Mr Frizzell, I am also satisfied that the law Firm that acts for the applicant hold funds in trust for him and that he has sufficient financial means to facilitate his travel out of and back into the country.
    
21. For all of the above, I am inclined to grant the application for variation of the bail conditions and for permission to leave the country temporarily. I do so with conditions.
    

Court Order

22. The Court makes the following orders on the application for variation of bail conditions and application for permission to leave the country temporarily:
    
    1. Application for variation of bail conditions is granted in the following terms:
       
       1. Conditions 2, 3, 6, 7 and 9 of the Bail Orders of date 25^th May 2022 are varied in order to allow the applicant to travel out of country.
          
       2. Upon return into country, these conditions will immediately be reinstated.
          
    2. Applicant is granted permission to leave the country temporarily from the period Monday 23^rd or 30^th May 2022 to Monday 13^th or 20^th June 2022.
       
    3. Applicant shall provide to the Public Prosecutor and the Court a confirmed itenary of his travel out of and into the country before his movements.
       
    4. The National Court Registrar of Crimes shall release the applicant’s passport, bearing the passport number PA3170042, under the name of Anthony John Ryals to him for the period of his travel. Upon return, the passport shall immediately be surrendered to the National Court Registrar of Crimes.
       
    5. The applicant shall pay a surety sum of K5, 000 forthwith as guarantee before he travels.
       

Order accordingly.

Warner Shand Lawyers: Lawyer for the Accused/Applicant
Public Prosecutor: Lawyer for the State/Respondent