Pang v Independent State of Papua New Guinea [2022] PGNC 444; N9806 (4 August 2022)

N9806

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 674 OF 2022

In the matter of an Application for Bail Pursuant to Section 42 (6) of the Constitution and Sections 4, 6 and 7 of the Bail Act, Chapter No. 340

BETWEEN:
JAMIE DAVID PANG
Applicant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Ganaii, AJ
2022: 03^rd & 04^th August

BAIL – Charge of Rape –Bail in the National Court after refusal by another judge of the same court – Applicant raised ground of change of circumstances – Whether a change of circumstances is established – Onus on applicant

Cases Cited

Bernard Uriap [2009] PGNC 224 N3999
Bobby Selan v The State (2009) N3690

Genia v State [2022] PGNC 5; N9386

Hulape v The State (2019) SC1845
Jamie David Pang v The State (2022) N9472
Maragau v State [2016] PGNC 109; N6280
Noah Karo v The State, (2009) SC998
Thomas Markus [1999] PGNC 82 N1931

Counsel

Mr. Dotaona (assisting), Applicant in person
Mr. Kaipu, for the State

RULING ON AN APPLICATION FOR BAIL

04^th August, 2022

1. GANAII, AJ : This is a decision on whether the applicant has established that there exists a change of circumstance such that this court, sitting as a National Court has jurisdiction to hear and deliberate upon the application for bail.
Background

2. The applicant is charged with one count of Rape under s 347 of the Criminal Code. In taking judicial notice of Statement of Facts in the CR File, produced by the registry, the allegations are that the applicant had forced the complainant to consume intoxicating drugs in his hotel room. Visible to the complainant at that time were drug apparatus and firearms. The applicant then sexually penetrated her without her consent. He was committed to stand trial on the 11^th of July 2022.

3. The applicant’s criminal case styled as CR No 920 of 2022 is pending listings and will be listed for trial once listings directions are complied with. The matter was last mentioned on the 01^st of August 2022. Listings directions were issued for the applicant’s lawyer to confirm legal representation and file their notice of appearance. Directions were also given for both the State and the applicant’s lawyer to file pre-trial review statements. The matter was adjourned to 15^th of August 2022 for compliance.
4. On a previous application for bail, bail was refused by the National Court on the 08^th of March 2022. The applicant now argues that there has been a change in circumstance since refusal of bail. He relies on his own affidavit filed on the 19^th July 2022. The applicant failed to place before the Court the Certificate for Refusal and Reasons for Refusal of bail by the bail authority. I have taken the liberty to take judicial notice of the court file in the bail matter styled as BA 88 of 2022; and the numbered ruling of the court. (Refer Jamie David Pang v The State, BA 88 of 2022, N9472, Waigani: Wawun-Kuvi, AJ, 2022: 7^th & 8^th March).

5. The reasons for refusal to grant bail according to the National Court Certificate of Refusal to Grant bail dated 08^th March 2022 is the presence of s 9 considerations of the Bail Act of serious assault and having or possessing firearms, imitation firearms, offensive weapons and or explosives.

6. Prior to hearing the parties, the applicant had stated that his lawyer was attending to another matter in another court. The applicant said he was happy to argue his application in person.

Applicant’s case
7. Mr. Pang is seeking bail after refusal by the National Court, pursuant to ss 4, 6 and 7 of the Bail Act and 42 of the Constitution and the principles relating to hearing of bail in the National Court after refusal by a judge of the same court as well settled in the case of Re Thomas Markus [1999] PGNC 82 N1931 and other cases following that. (See Re Bail Application by Bernard Uriap [2009] PGNC 224; N3999 (9 October 2009); Maragau v State [2016] PGNC 109; N6280 (12 May 2016); and Genia v State [2022] PGNC 5; N9386 (11 January 2022).

8. At paragraph 9 of the applicant’s affidavit, among others but that being his main ground, he says that the change in circumstance is that he has a number of mental and phycological issues and being incarcerated is taking a toll on him.

9. He further stated that he was examined by Dr. Ludwig Nanawar, a visiting consultant psychiatrist on 29^th March 2022 and 29^th June 2022. He attaches reports by Dr. Nanawar. He argues that Bomana Correctional Institutional Services (CIS) does not have the appropriate facilities to support his ongoing treatment and medication.

State’s case

10. State’s position at the outset was that the Court will dismiss this application as the applicant has not shown the relevant change in circumstance. State submitted that the Court will not hear this application on the basis that this is an application for bail after refusal by another National Court judge, and the applicant has failed to show a change in circumstance.

11. State also submitted that if the court is satisfied that there is a change in circumstance and is hearing this bail application afresh, State objects to grant of bail on the basis and among other reasons pursed that there is real likelihood of interference with the complainant and other state witness. State relied on an affidavit of the case investigating officer, Policewoman Rachael Pinda, filed on the 01^st August 2022.
Consideration

12. I have heard the State prosecutor Mr. Digori and the applicant in person. At the outset, it was put to them by the Court and of which they agreed that in order for this court to hear and determine the application for bail, the applicant has to first establish that there has been a change in circumstance since the hearing of his unsuccessful bail application before another judge of the National Court.

13. I am satisfied that this agreement by Mr. Digori and the applicant reflects the correct position in law. (Refer to Christopher Hulape v The State (2019) SC1845, Waigani: Hartshorn J.

14. In the present case, the applicant argues that the change in circumstance consist of his medical condition, where he had been diagnosed with bipolar disorder and needs appropriate medical care and treatment and where the CIS is not able to provide the relevant care and treatment to the applicant.

15. In Noah Karo v The State (2009) SC998, although is a case involving bail made to the Supreme Court after refusal in the National Court, the comments are at [6] are relevant, useful and applicable to this present matter. The SC said in an application for bail based on change in circumstance, the applicant is required to show that circumstance have changed since the last application for bail was refused and the onus is on the applicant to demonstrate this. This means he must demonstrate that the grounds upon which the National Court had refused bail have changed or no longer exist. (See Re Thomas Marcus (1999) N1931).
16. Further, the circumstance must be relevant to the earlier application for bail. Bernard Uriap [2009] PGNC 224 adopted Re Bobby Selan (2009) N3690 and Re Thomas Markus [1999] PGNC 82; N1931.

17. In this instance, reliance on new matters altogether, ie medical diagnosis (claimed to have first been diagnosed in 2006 in Australia but where the applicant refused to take medication
ns) and now a further diagnosis by Dr. Nanawar dated 29^th March 2022, was not argued to be a ground for seeking bail in the previous application. Under the heading of medical grounds, what was argued in the previous application for bail was that the applicant was recovering from a medical surgery that involved the removal of his appendix. At that time, the court had found that for that medical ground, there was very little before the court in support of that argument. (Refer Jamie David Pang v The State, supra).

18. Further grounds relied on by the applicant now as relevant change in circumstance are that the applicant suffers from personality disorder and symptoms of drug withdrawal, but these also were not argued in the previous bail applications.

19. In considering whether there is a change in circumstance which is relevant, the Court is not concerned with new circumstance (Genia v State [2022] PGNC 5; N9386 (11 January 2022) at para [13]. The grounds of recent diagnosis do not relate to previous reason for refusal to grant bail and therefore is a new circumstance which is not relevant.
Conclusion

20. In consideration of the materials before me, I am not satisfied that the applicant had demonstrated that there has been a change in circumstance relevant to the reasons for refusal of bail in the previous application.

21. Consequently, I do not have jurisdiction to hear and deliberate on the present application for bail.
Order

22. The application for bail filed on 19^th 0f July 2022 is dismissed.

Orders accordingly.
________________________________________________________________
Dotaona Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State/Respondent