Genia v State [2022] PGNC 5; N9386 (11 January 2022)

N9386

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 437 OF 2021

ALEXANDER GENIA

V

THE STATE

Waigani: Wawun-Kuvi, AJ
2022: 10^th, 11^th January

CRIMINAL LAW – BAIL – Applicant charged with Wilful Murder, contrary to s. 299 ((1) of the Criminal Code – Applicant refused bail twice 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 one count of Wilful Murder under Section 299 (1) of the Criminal Code. The Applicant was refused bail twice by the National Court. He applies a third time contending that there has been a change of circumstances since his previous bail applications.

Held:

1. There is no express provision in the Bail Act that prohibits the application for bail to be made to the same Judge or another Judge of the National Court.
2. Sections 6 and 7 of the Bail Act provides the legislative basis for an applicant to apply for bail again to the same Judge or another Judge of the National Court.
3. The applicant must demonstrate that there has been a change of circumstance and that circumstance is relevant to the previous refusal of bail, Re Thomas Markus [1999] PGNC 82; N1931.
4. The applicant must provide the reasons for the refusal of bail. The bail refusal certificate is not sufficient; Re Thomas Markus [1999] PGNC 82; N1931 and Re Bail Application by Bernard Uriap [2009] PGNC 224; N399
5. The applicant did not provide the reasons for refusal of bail.
6. The materials before the Court do not demonstrate that there has been a change of circumstance relevant to the previous applications.
7. 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 Jeffery Kolowe, for the Applicant
Ms Gretel Gunson, for the Respondent

DECISION ON BAIL APPLICATION

11^th January, 2022

1. WAWUN-KUVI, AJ: This is an application pursuant to sections 4 and 6 of the Bail Act 1977 and 42 (2) of the Constitution.
   
2. The applicant is charged with one count of Willful Murder contrary to section 299 (1) against the Criminal Code.
   
3. The State opposes bail.
4. There were two previous bail applications moved by the applicant in the National Court. On 24 December 2019, bail was refused by Her Honour Justice Berrigan and on 20 May 2020 by His Honour Justice Mogish.
   
5. The Applicant has attached the Bail Refusal Certificates. The Bail Refusal Certificate by Her Honour Justice Berrigan was signed on 7 April 2021; however, according to Court records, bail was refused on 24 December 2019. The Applicant has not attached the full reasons of those earlier refusals.
   
6. The Applicant now contends that circumstances have changed since his last application on 20 May 2020. He relies on his affidavit filed 30 November 2021 and the affidavit of the Health Extension Officer at Bomana CS Clinic.
   

Can an applicant apply for bail again to the National Court after bail has been refused?

7. Yes.
   
8. The law appears to be settled in the case of Re Thomas Markus [1999] PGNC 82; N1931. Subsequent decisions that have adopted Re Thomas Markus and proceeded to determine an application for bail after refusal by another Judge of the National Court are 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.
   
9. Whilst there are no expressions within the Bail Act, case authority referred to above has interpreted sections 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.
   
10. This is however subject to the applicant demonstrating a change of circumstance which is relevant to the refusal of bail in the previous application. 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.”

11. 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.
       
12. As expounded by Berrigan J in Mange v The State [2019] PGNC 53; N7769 (15 March 2019 at paragraph 12:
    

“To give effect to the decision in Re Thomas Markus it appears to me that the change must also be material such that it warrants reconsideration of the earlier decision to refuse bail. That will obviously be a matter for determination on a case by case basis.”

13. Change of circumstances must be specific to the earlier decisions. The Court is not concerned with new circumstances.
    
14. Bernard Uriap adopting Thomas Markus highlighted the importance of the reasons for refusal of bail as required under section 16 of the Bail Act.
    
15. It is important to have the judgment under considerations. Reliance on the bail refusal certificate is not sufficient whilst mandatory. The Court must have the reasons to fully appreciate the reasons for refusal of bail.
    
16. Especially in the present matter, where the Court must consider whether the medical condition was a matter that was considered in the first application.
    
17. The bail refusal certificate by Berrigan J indicates that bail was refused because the offence consisted of a serious assault, threat of violence to another person, having or possessing a firearm, imitation firearm or other offensive weapon or explosives and that the applicant did not show exceptional circumstances to be granted bail.
    
18. Mogish, J refused bail on the same grounds with exception to the exceptional circumstances criteria.
    
19. Considering that Mogish, J’s decision was the second decision, it was important for the applicant to produce His Honour’s decision to demonstrate what the change of circumstance was from the primary Judge up until present.
    
20. The Applicant has notified this Court of the two previous bail application. However, he has not provided the reasons pursuant to section 16 of the Bail Act.
    
21. This is where the reasons for the judgement become vital because the bail refusal certificate only contains considerations under section 9 of the Bail Act. If the Applicant argues factors such as medical conditions, he is required to provide the reasons to enable this Court to consider whether there has been a change to those circumstances.
    
22. The materials before the Court do not demonstrate that there has been a change of circumstance relevant to the previous application.
    
23. For the foregoing reasons, the application for bail is refused.
    

Orders:

24. The Order of the Court is:
    1. The Application for bail is refused.

________________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State