In re Chan and Arendi [2007] PGSC 25; SC858 (13 July 2007)

SC858

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 06 OF 2007

IN THE MATTER OF SECTION 42 (6)
OF THE CONSTITUTION

AND:

IN THE MATTER OF SECTION 13 (2) OF THE BAIL ACT

AND

IN THE MATTER OF APPLICATION OF
CHING LOON CHAN AND PAIDI ARENDI
Applicants

Waigani: Kapi CJ
2007: 12, 13 July

CRIMINAL LAW – Bail Application – Where bail is refused by the National Court – Does a single Judge of the Supreme Court have jurisdiction to deal with bail under s 13 (2) of the Bail Act

Held:

1. The provisions of the Supreme Court Act are not applicable to the present case as there is no appeal to the Supreme Court.
   
2. A Single Judge of the Supreme Court has no jurisdiction to deal with bail under s 13 (2) of the Bail Act.
   
3. The Supreme Court consisting of three Judges need to deal with bail under s 13 (2) of the Bail Act.
   

Counsel
M. Wilson, for the Applicants
M. Zurenuoc, for the State

13 July 2007

1. KAPI CJ: This is an application for bail in accordance with s 13 (2) of the Bail Act:

"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."

2. The applicants were charged in the District Court at Vanimo for contravening the provisions of s 16 (1) (b) of the Migration Act and s.154 (a) of the Customs Act. The charges are in the following terms:

(i) That they did each and severally offer K2,000.00 reward to an officer namely Boby Watson, an officer of Customs at PNG Border Post to induce him to neglect his duties thereby contravening s 154 (a) of the PNG Customs Act (Cap 101)

(ii) That they did each and severally aid and abet twenty (20) Malaysian Chinese and Indonesians citizens to remain in Papua New Guinea in contravention of the Act thereby contravening s 16 (1) (b) of the Migration Act 1978.

3. They were remanded in custody.

4. On 27 June the applicants made application for bail through a lawyer in the District Court at Vanimo. The District Court refused bail.

5. The applicants then made application for bail in accordance with s 13 (1) of the Bail Act in the National Court. The matter came before Mogish J and on 6 July 2007, His Honour refused bail.

6. It is from this refusal of bail that the applicants have applied to the Supreme Court under s 13 (2) of the Bail Act.

7. On the first day of hearing, I raised the issue of whether a single judge of the Supreme Court has jurisdiction to determine bail in the circumstances. Counsel for the parties were directed to research the point and return to the Court and argue the issue.

8. Counsel for the applicants referred to s 10 of the Supreme Court Act and concedes that the provisions in the Supreme Court Act apply only to applicants appealing from a decision of the National Court.

9. Counsel for the applicants further submit that the "Supreme Court" under s 13 (2) of the Bail Act is defined by the word "court" under s 1 of the Bail Act. He submits that by this definition, the Supreme Court includes a single Judge of the Supreme Court.

10. Counsel for the State on the other hand submits that the definition of "court" in s 1 of the Bail Act is not applicable. She submits that s 13 (2) of the Bail Act does not use the general word "court". The provision designates the court, namely "Supreme Court". She submits that the Supreme Court is established under s 160 of the Constitution. Under s 161 (2) of the Constitution, the Court shall consist of three judges subject to s 162 (2) of the Constitution. She further submits that the exception does not apply in this case, as the applicants are not appealing to the Supreme Court from a decision of the National Court. Counsel for the State submits that the provisions of the Supreme Court Act are not applicable.

11. At the conclusion of submissions, I ruled that a single judge of the Supreme Court has no jurisdiction to deal with an application under s 13 (2) of the Bail Act and indicated that I would publish my reasons for decision later. This I now do.

12. The legislature in enacting the provisions of the Bail Act deliberately designated three levels of court which may deal with bail where bail is refused by a bail authority. There is no question that initially, a magistrate may deal with bail (13 (1) of the Bail Act). Where a magistrate refuses bail, there is no question a Judge of the National Court may consider bail (s 13 (1) of the Bail Act).

13. The question has arisen in the present case whether under s 13 (2) of the Bail Act, a single judge of the Supreme Court has jurisdiction to deal with bail. As far as I am aware, this issue has not been determined in our jurisdiction.

14. In the first premise, s 13 (2) of the Bail Act designates the "Supreme Court" to deal with bail. If the legislature intended a single judge of the Supreme Court, it would have said so.

15. What then is the "Supreme Court"? The Supreme Court is established by s 160 of the Constitution. Section 161 is relevant to the definition of what is the Supreme Court:

"161. Composition of the Supreme Court.

(1) The Supreme Court shall consist of the Chief Justice, the Deputy Chief Justice and the other Judges of the National Court (excluding the acting Judges).

(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.

(3) In a hearing that consists of at least three Judges, the Chief Justice, the Deputy Chief Justice or the most senior Judge available shall preside over the Court."

16. The Supreme Court consists of at least three Judges. This is subject to s 162 (2) of the Constitution:

"162. Jurisdiction of the Supreme Court.

(1) The jurisdiction of the Supreme Court is as set out in—

(a) Subdivision II.2.C (constitutional interpretation); and

(b) Subdivision III.3.D (enforcement); and

(c) Section 155 (the National Judicial System),

and otherwise as provided by this Constitution or any other law.

(2) In such cases as are 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."

17. Supreme Court Act prescribes the powers that may be exercised by a single judge of the Supreme Court (s 5 and 10 of the Supreme Court Act. However, as has been conceded this Act is applicable to where there is an appeal pending before the Supreme Court against the decision of the National Court. In the present case, there is no appeal to the Supreme Court. The provisions of the Supreme Court Act are not applicable.

18. There is no provision under the Bail Act which gives a single of the Supreme Court jurisdiction to exercise discretion on bail. The application under s 13 (2) of the Bail Act must be determined by the Supreme Court consisting of three judges.

19. For these reasons I held that a single judge has no jurisdiction and dismissed the application for bail

___________________________________

Warner Shand: Lawyers for the Applicants
Acting Public Prosecutor: Lawyer for the State