Maxwell v State [2022] PGNC 583; N10180 (5 August 2022)

N10180

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (BA) NO 680 OF 2022

CLIFFORD MAXWELL

-v-

THE STATE

Lae: Kangwia J.
2022: 03^rd & 5^th August

CRIMINAL LAW - Fresh application for bail after first refusal - Change in circumstances of reasons for first refusal - s 13 (2) & (3) Bail Act relied on as paving way for such application - Variance in considerations for fresh application – No provision in Bail Act for application to same Judge or Court – Hierarchy of Bail Authority identified in s 13 - After first refusal of bail Judge or Magistrate is functus officio – a fresh application to same Judge or Court an affront to s 13 and abuse of process - Bail refused.

Cases Cited

Ewam v the State [2017] N6935
Enana Idon v the State (2001) SC669
Michael Philip v the State (2007) N3217
Kuku Hayara v the State (2009) N3598
Re Thomas Markus (1999) N1931
Re: Application by Bobby Selan (2009) N3690
Loncia Ewam v the State (2017) N6935

Counsel:
C.B. Boku, for the Applicant
P. Matana, for the Respondent

BAIL APPLICATION

5^th August, 2022

1. KANGWIA J: The applicant reapplies for bail pursuant to s 42 (6) of the Constitution and s 6 & 13 (4) (a) & (b) of the Bail Act after the first application for bail was refused. He came before this Court seeking bail pursuant to s 4 of the Bail Act.

2. At the outset bail is an entitlement pursuant to s 42 (6) of the Constitution to a person charged with all offences except Wilful Murder and Treason. It is available to those who seek it under the guidelines of the Bail Act.

3. The applicant in the present case was charged with murder which is attached with the Constitutional entitlement to bail which he has sought to invoke.

4. The State being possessed of a legitimate interest in an application for bail must show why bail should be refused, whether s 9 considerations were present.

5. Even though an application for bail may be made anytime pursuant to s 6 of the Bail Act, the grant of bail it is not automatic. It is subject to the considerations under s 9 (1) of the same Act.

6. On a charge of murder as in the present case if a s 9 consideration is present the onus is on the applicant to show why he should not be detained by merely establishing that an exceptional or special circumstance existed. Grant or refusal is also an exercise of discretion and in the interest of justice overall.

7. The present case is treated as a fresh application to the same Court.

8. The main ground advanced in the present case is that circumstances have changed on the grounds for refusal in the earlier application hence he should be granted bail.

9. He has relied on his own affidavit and the affidavits of two guarantors who have pledged as surety K1,000 and K500 respectively.

10. On his behalf Mr Boku through a written submission submitted that the Court had jurisdiction to consider the application pursuant to s 13 (4) of the Bail Act.

11. It was intimated that the provision paved the way for a fresh application for bail to the same Court despite the first refusal where a change in circumstances existed after the first refusal.

12. That proposition is rejected. I will come to that in the latter part of the decision.

13. While further intimating that the Court had jurisdiction to hear the application afresh, Mr Boku cited the case of Ewam v the State [2017] N6935 as similar where changes in circumstance to the earlier refusal had existed from which bail was granted.

14. In the present case it was submitted that changes in circumstances existed on the four grounds for refusal in the first application and bail should be granted.

15. On behalf of the State Ms Matana while not seriously objecting to bail submitted that there was no evidence of compensation paid. The matter was already pre-trialled and was ready for the next Court circuit to Bulolo in September this year and the trial can proceed without him being on bail.

16. The law on application for bail to the same Judge or the National Court that refused bail earlier is at variance in this jurisdiction.

17. One view stands for the proposition that after bail is refused by the National Court an applicant who wanted to make a fresh application should do so to the Supreme Court before a single judge or a full bench as was intended by s 13 (2) of the Bail Act.

18. In the case of Enana Idon v the State (2001) SC669 her honour Davani J sitting as a single Supreme Court Judge accepted an application for bail after the first application was refused by the National Court.

19. In the case of Michael Philip v the State (2007) N3217 Gabi J said this when an application for bail was made after the first application was refused:

The procedure for bail is dealt with by s 13 of the Bail Act. The position is that where a person is refused bail by a magistrate he can apply only to a judge of the National Court, and where he is refused bail by a judge of the National Court he can only apply for bail to the Supreme Court. There is no provision in the Bail Act for an application to be made twice to the same bail authority nor is there a provision for appeal in bail matters. To re-apply to the same judge or a different judge of the National Court after refusal of bail is, to my mind, an abuse of process. I can find no basis for that position in law”.

20. This view was adopted by Makail J in the case of Kuku Hayara v the State (2009) N3598.

21. The proponents of this view stand for the proposition that s 13 identifies the hierarchy of the bail authorities that should deal with the different category of applications including change in circumstances from the first refusal.

22. The other view stands for the proposition that after bail is refused an applicant may make a fresh application to the same judge or another judge in the National Court that refused the first application. In the case of Re Thomas Markus (1999) N 1931 Injia J while granting bail in the second application after Sakora J refused the first application for bail said:

“An applicant refused bail previously by a Judge of the National Court may re-apply afresh to the same judge or another judge of the National Court if changes in relevant circumstances have occurred since bail was last refused. This principle is derived from s 6 and s 7 of the Bail Act.”

23. The proposal in that case was premised on the existence of a change in circumstance of the reasons in the first refusal.

24. Proof of change in circumstances to the reasons for the first refusal seems to be the only qualification in a fresh application to the same Judge or National Court and not on new grounds.

25. In the case of Re: Application by Bobby Selan (2009) N3690 a fresh application to the National Court was refused for failing to show that a change in circumstance existed and instead relied on new grounds.

26. In the case of Loncia Ewam v the State (2017) N6935 an earlier application for bail was refused for guarantors lacking standing. In the second application before the same trial Judge the applicants were granted bail after being satisfied that a change in circumstance existed when two reputable guarantors were nominated.

27. Because of the variances referred to two options are open to an applicant who makes a fresh application after the first refusal.

28. First is the right to make an application to the Supreme Court after a refusal by the National Court pursuant to s 13 (2) of the Bail Act. It does not connote an appeal against a decision of the Court below.

29. It operates as an application of first instance for bail inclusive of fresh grounds and changes in circumstances to the first refusal.

30. Second is to apply again to the same judge or Court that refused the first application if changes in circumstances to the reasons for first refusal existed.

31. From the variances referred to, I hold the same view as Gabi J in the Michael Philip case and affirmed by Makail J in the Kuku Hayara case for the sole reason that there is no specific statutory provision for a fresh application to be made to the same Judge or Court that refused the first application. The Bail Act is silent on this type of application.

32. Conversely s 13 of the Bail Act clearly sets out how a further application for bail is to be made in the following way:

13. Further application may be made after refusal.

(1) Where a person is refused bail by a Magistrate he is entitled to apply for bail, immediately if he so desires, to a Judge of the National Court.

(2) Where a person is refused bail by a Judge of the National Court he is entitled to apply for bail, immediately if he so desires, to the Supreme Court.

(3) Where an application is made under Subsection (1) or (2), the applicant shall produce a copy of the reasons given under Section 16.

(4) An application may be made under Subsection (1) or (2) whether or not bail was refused—

(a) under this Act (including this section) or under any other law; or

(b) on an application.

33. This provision in no uncertain terms identifies the hierarchy of the Bail Authority and secondly how applications can be made to them, if the first application for bail is refused. The only qualification is that an applicant produces the reasons for the first refusal. Subsection 4 cannot operate as a grant of a right or paving the way for an application to the same Judge or Court which refused the earlier application owing to the hierarchy of Bail Authority as outlined in s 13. That provision covers for fresh applications to be made to the higher Bail Authority despite it having been refused earlier.

34. My view is that the Judge who refused the first application remains functus officio of bail applications by the same applicant pursuant to s 13. The same applies to a magistrate who refused bail in the first application.

35. After a refusal of the first application the District Court would also be functus officio of bail application by the same applicant. By operation of s 13 an applicant for bail cannot return to the same Judge, Magistrate or the Court who refused the first application with a fresh application.

36. Any fresh application after a refusal of the first application must be made to the next higher Bail Authority even if changes in circumstances existed in the reasons for the first refusal. By allowing for applications to be made to the same Judge or Court after the first refusal would be an affront to s 13 of the Bail Act amounting to an abuse of process under the auspices of a change in circumstance. The Court would be made to look like a faultfinder in a fresh application for bail to the same Judge or Court.

37. If parliament had intended for a fresh application to be made to the same Bail Authority after the first refusal, it would not have made provision for the hierarchy of Bail Authority under s 13.

38. Under those consideration, this Court is deemed the wrong forum to bring this application. Following on from that it is not necessary for me to consider the purported changes in circumstances relied on by the applicant.

Bail is refused.
_________________________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State