Idon v The State [2001] PGSC 18; SC669 (13 September 2001)

SC669

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC APP NO.21 OF 2001

ENANA IDON

-V-

THE STATE

Waigani: Davani J
2001: 11 & 13 September

PRACTISE AND PROCEDURE – Bail Application – National Court – Refusal by one Judge of National Court – Need for Court to provide full reasons for refusal – Fresh application for bail to Supreme Court, to same or another Judge, must show change in relevant or irrelevant circumstances – Application for bail to Supreme Court relying on same set of circumstances as in Court below, need to appear before three judges – Bail Act ss.6, 7, 9, 13 and 16 Constitution ss.161, 162.

Cases Cited

Re Thomas Markus [1999] N1931
State v Tohian [1990] PNGLR 173
Herman Kagl Diawo [1980] PNGLR 148
Samir Taleb Abdulah Jabar Anabtawi [1980] PNGLR 195

Counsel

W. Donald, for the Applicant
J. Sambua, for the State

13 September 2001

DAVANI J.: The Applicant was charged with one count of stealing with violence under s.386 (I)(b)(c) of the Criminal Code were it is alleged that on 29 September 1999, he, together with four others, armed with two homemade guns and three bush knives held up a man in a company owned vehicle, then forced him to drive that vehicle away from the scene of the hold-up, then fled on foot. He was arrested on 3 October 1999 then committed to stand trial in the National Court on 22 December 1999. On 3 October 1999, he was detained at the Kerevat Corrective Institution until 17 February 2001 when he escaped with several others. Son after, he surrendered to the police, was charged then convicted upon pleading guilty. He served four months imprisonment, which term expired on 15 June 2001.

On 15 August 2001, he applied for bail before Lenalia J in the National Court, Kokopo, which was refused.

He is reapplying for bail to me as a single judge of the Supreme Court under s.13 (2) of the Bail Act. Section 13 reads: -

"13. Further application may be made after refusal.

(1) Where a Magistrate refuses a person bail, 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 bay 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) and (2), the Applicant shall produce a copy of the reasons given under s.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 any other law; or
• (b) On an application.
  

In support of this application, the Applicant relies on the affidavit of Allan Tamti sworn on 30 August 2001 and his own affidavit, also sworn on the same date. Attached to his affidavit is a copy of Lenalia J’s reasons for refusal of bail, in the National Court, a requirement under s.13 (3) of the Bail Act.

Section 16 of the Bail Act requires that on refusal of bail, the bail authority shall ensure that the reasons for refusal are recorded.
The Applicant relies on the following as reasons for reapplying for bail: -

1. The jail is over crowded and conditions are unhygienic.
2. That he wants to assist look after his aging parents, whilst on bail, pending the hearing of this matter.
3. That he did not commit the offence with which he is charged but was forced to admit to committing the offence after the police assaulted him.
   

There are two issues before me –

1. Whether I, as a single judge of the Supreme Court, can hear this application.
   
2. If so, as the Applicant is reapplying for bail, whether he has shown there to be a change in relevant circumstances.
   

First Issue

Section 13(3) states where an Applicant is refused bail by a judge of the National Court, he may apply for bail to the Supreme Court. The Applicant has done so and relies on the reasons stated above as the grounds for this application.

It is apparent that the reasons advanced by the Applicant in this application are the same as those he presented in the earlier application. Lenalia J confirms this where he stated at page 2 of his reasons –

"Grounds advanced in favour of this application are that first the applicant wishes to assist his old parents to man their block at Sunam although they come from Takubar village. The Applicant says he did not commit the offence with which he is charged but when he was arrested, he was assaulted and booted, the reasons for his falsely admitting to the alleged armed robbery.

The next reason for this application is that the cell blocks at the Kerevat Gaol are very crowded and leads to other problems of shortage of bedding, food and water shortages, untreated water and toilet unhygienic facilities which may well lead to other complications".

This application is brought before me as a fresh application for bail in the Supreme Court. I can sit as either the National or the Supreme Court.
The grounds for bail advanced by the applicant are the same as that brought in the National Court. The Applicant cannot do that. As Injia J said in Re: Thomas Markus [1999] N1931 –

"... it would amount to abuse of process of the Court for a person refused bail by a judge of the National Court to reapply 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".

Should the Applicant appear before three judges which is the composition of the Supreme Court, as provided in s.161 (2) of the Constitution which states –

"S.161 Composition of the Supreme Court

(2) Subject to section 162(2) (jurisdiction of the Supreme Court) and for the purposes of any hearing, the Supreme Court shall consist of at least three judges".

Section 162(2) reads –

"S.162 Jurisdiction of the Supreme Court

(2) In such cases as provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single judge of that court, or by a number of judges sitting together".

In this case, an act of Parliament or the Bail Act, more specifically s.13 (2) say an applicant refused bail by a judge of the National Court, may apply to the Supreme Court. Can that application be made before a single judge or before three judges of the Supreme Court? I consider that this application can be made to a single judge of the Supreme Court. What the applicant would need to show is that there has been a change in relevant circumstances from that raised in the court below. However, if the applicant is unable to show that, then he should in fact be applying before the Supreme Court consisting of three judges. In other words, if this application is refused, then the applicant, if he were to continue to pursue the bail application relying on the same grounds, should appear before three judges of the Supreme Court.

Second Issue

On review of the affidavit material, including Lenalia J’s reasons for refusal, it is obvious that there has not been a change in relevant circumstances. The Applicant relies on the same grounds as in the earlier application.

If there has not been a change in relevant circumstances, then the status quo remains. I do not accept Applicant’s counsel’s submissions that the persisting bad conditions in the jail are a change in circumstances. They are the same reasons counsel relied on in the earlier application. How can these reasons be a change in circumstances when there has not been any change?

The right to bail is a constitutional right (s.42 (6)) and such right ought to be readily granted unless the interests of justice requires otherwise (re State v Tohian [1990] PNGLR 173 and Herman Kagl Diawo [1980] PNGLR 148).

A bail authority is guided by s.9 of the Bail Act. The Court is only required to consider and satisfy itself that only one or more of the factors listed in s.9 (1)(a)-(j) exists. The onus is on the prosecution to do so. (Re Samir Taleb Abdulah Jabar Anabtawi [1980] PNGLR 195).

The Applicant has escaped once and was alleged to have been in possession of weapons. It was on this basis that the earlier court refused bail. No new reasons or grounds have been put to me to convince me otherwise. The Guarantor’s affidavit is no guarantee that the Applicant will appear in Court, considering the history of this case. I can only rely on what is before me and conclude that although the Guarantor swears the Applicant will appear in court, that does not say he will not abscond as he is very much aware of the jail conditions. I can only speculate. With not much assistance from the Applicant’s lawyer, I am not in a position to change or vary the National Court’s decision.

I refuse bail.

Lawyer for the Applicant : Namaliu & David Lawyers
Lawyer for the State : Public Prosecutors Office