Gubag v State [2022] PGNC 299; N9796 (1 August 2022)

N9796

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA 673 OF 2022
KOMENG GUBAG

V

THE STATE

Waigani: Wawun-Kuvi, AJ
2022: 28^th July, 1^st August

CRIMINAL LAW – BAIL – Applicant charged with two counts of Wilful Murder, contrary to s. 299 ((1) of the Criminal Code – Applicant refused bail previously in the National Court- Applicant does not attach reasons of refusal- Applicant does not demonstrate change of circumstance relevant to previous refusals-Application refused.

The applicant is charged with two counts of Wilful Murder under Section 299 (1) of the Criminal Code. The Applicant was refused bail by the National Court. He applies a second time contending that there has been a change of circumstances since his previous bail application.

Held:

1. An application for bail may be made again to the National Court following an earlier refusal subject to the applicant providing the reasons of refusal and demonstrating that there has been a change relevant to the section 9(1) considerations which formed the basis for refusal: Re Thomas Markus [1999] PGNC 82; N1931 and Re Bail Application by Bernard Uriap [2009] PGNC 224; N399
2. The Court is not concerned with new circumstances or the same grounds.
3. The materials before the Court do not demonstrate that there has been a change of circumstance relevant to the previous applications.
4. Bail is refused.

Cases Cited:
Mange v The State [2019] PGNC 53; N7769
Igo v State [2016] PGNC 277; N6475
Parker v The State (2015) N6191
Re Bail Application by Bernard Uriap [2009] PGNC 224; N3999
Re Bobby Selan (2009) N3690.
Re Thomas Markus [1999] PGNC 82; N1931

Legislation:
Bail Act 1977
Constitution
Criminal Code

Counsel:

Mr David Dotona, for the Applicant
Ms Tapas Kametan, for the Respondent

DECISION ON BAIL APPLICATION

1^st August, 2022

1. WAWUN-KUVI, AJ: This is an application pursuant to sections 6 of the Bail Act 1977 and 42 (6) of the Constitution.
   
2. The applicant is charged with two counts of Willful Murder contrary to section 299 (1) of the Criminal Code.
   
3. The State opposes bail.
   
4. The applicant had previously applied for bail in the National Court. On 23 December 2021, Cannings J refused the application.
   
5. The Applicant has attached the file endorsement and the Certificate of Refusal to Grant Bail.
   
6. The applicant says that there has been a change of circumstance since his last application. He has been acquitted of the first charge which formed the consideration that he committed the offence whilst he was on bail for another offence under s 9(1)(b) of the Bail Act.
   
7. It appears to be settled law that an applicant may apply for bail again to the National Court, subject to the condition that the applicant demonstrates a change of circumstance relevant to the previous bail application: see Re Thomas Markus [1999] PGNC 82; N1931, Mange v The State [2019] PGNC 53; N7769, Igo v State [2016] PGNC 277; N6475, Parker v The State (2015) N6191, re Bail Application by Bernard Uriap [2009] PGNC 224; N399 and Re Bobby Selan (2009) N3690.
   
8. There are no express provisions within the Bail however, the case authorities have interpreted section 6 and 7 of the Act as the legislative basis for an applicant to apply for bail again to the same Judge or another Judge of the National Court.
   
9. It is however subject to the condition that the applicant must demonstrate that there has been a change to the earlier reasons with reference to section 9(1) of the Bail Act. The Court will not be concerned with new grounds or the applicant using the same grounds to apply again for bail. His Honour Injia J (as he was then) in Re Thomas Markus, laid down the requirements in the following terms:
   

“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 S.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 S.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.”

10. Kariko J in re Bail Application by Bernard Uriap [2009] PGNC 224 adopted Re Bobby Selan (2009) N3690 and Re Thomas Markus [1999] PGNC 82; N1931, and held that the applicant must satisfy four requirements:
    
    1. Notify the Court of the earlier refusal of bail.
    2. Provide a copy of the earlier refusal of bail.
    3. Present evidence of the change of circumstance.
    4. Demonstrate how the change is relevant.
       
11. In the present application, whilst the applicant has attached the file endorsement and the Certificate of Refusal, he has not attached the reasons of the Court. Bernard Uriap adopting Thomas Markus highlighted the importance of the reasons for refusal of bail as required under section 16 of the Bail Act.
    
12. The Court needs the judgment to fully appreciate the reasons for refusal. It is more so important in the present case, considering the circumstances of the case.
    
13. The applicant was committed for trial on two counts of wilful murder on 27 July 2022.
    
14. The police information indicate that the offence is alleged to have been committed on 23^rd October 2021.
    
15. The applicant argues that the change of circumstance is that he was refused bail because considerations under section 9 (1)(b) of the Bail Act were present. That the offence for which he was charged was committed whilst he was on bail.
    
16. He has now been acquitted of the Wilful Murder charge that had formed the basis for this application.
    
17. However, the applicant has two charges in the National Court. On the National Court list, the applicant has two matters, CR 13 of 2022 and CR 1410 of 2021.
    
18. CR 1410 of 2021 involved a charge of wilful murder and CR 13 of 2022 involves a charge of aiding a prisoner to escape. The accused has been acquitted of the charge of wilful murder under CR 1410 OF 2021. CR 13 of 2022 is awaiting a trial date.
    
19. The file note and the certificate of refusal do not show which of the previous charges were considered by the Court to refuse bail.
    
20. Both the State and the counsel for the applicant were not of assistance as to the specific dates of the alleged offences.
    
21. Without the reasoning of the previous Court, the materials before the Court demonstrate that there has been no change of circumstance. According to the committal dates, the offences of wilful murder for which the applicant has been committed for trial were committed whilst the applicant was on bail for another offence.
    
22. Additionally, bail was refused because of section 9(1) considerations. There has been no change to the section 9(1)(c) considerations. The offence in which the accused has been committed for trial consists of a serious assault, threats of violence to other persons and having in possession firearms.
    
23. Applications for bail under this category must not be seen as a resolving door. The exception has been clearly provided in Re Thomas Markus [1999] PGNC 82, that there must be a change relevant to the section 9(1) considerations which formed the basis for refusal. Otherwise, it is an abuse of the Court’s processes to seek bail on new or the same grounds.
    
24. For the foregoing reasons, the application for bail is refused.
    

Orders:

25. The Order of the Court is:

1. The Application for bail is refused.
   

________________________________________________________________
Dotaona Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State Respondent