Uriap v State [2011] PGSC 13; SC1108 (1 July 2011)

SC1108

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SC APP NO. 07 OF 2010

IN THE MATTER OF AN APPLICATION FOR BAIL PURSUANT TO SECTION 42(6) OF THE CONSTITUTION AND SECTION 13(2) OF THE BAIL ACT

BETWEEN:

BERNARD URIAP
Applicant

AND:

THE STATE
Respondent

Waigan1: Batari & Gabi JJ
2011: 1st July

CRIMINAL LAW – Bail Application – Bail pending trial – Bail refused by the National Court and a single Judge of the Supreme Court – Whether a single Judge of the Supreme Court has jurisdiction to deal with bail under s 13 (2) of the Bail Act – Bail before full Supreme Court – Fresh application – Onus on applicant to show grounds for bail.

Held:

(1) The provisions of the Supreme Court are not applicable to the present case as there is no appeal to the Supreme Court.

(2) Where there is no appeal a single judge of the Supreme Court has no jurisdiction to deal with bail under s. 13(2) of the Bail Act.

(3) Where there is no appeal the Supreme Court consisting of three judges needs to deal with bail under s.13(2) of the Bail Act.
(4) An application for bail under s.13(2) to the Supreme Court, whether to a single judge or the full bench, must be by way of a fresh application.

Affirmed and applied In the matter of application of Ching Loon and Paidi Areni (2007) SC 858 as setting out the procedure where bail is refused by the National Court.

Cases cited

An Application by John Wilford Gibson (1990) N903
Bernard Uriap vs. The State (2009) N3822
Enana Indon vs. The State (2001) SC669
Ex parte Arthur Gilbert Smedley [1978] PNGLR 156
Felix Bakani vs. Rodney Daipo (2002) SC699
In the matter of application of Ching Loon and Paidi Areni (2007) SC858
Kysely v. The State [1980] PNGLR 36
Noah Karo vs. The State (2009) SC998
Re Bail Application by Bernard Uriap (2009) N3999
Re Diawo [1980] PNGLR 148
Re Fred Keating v. The State [1983] PNGLR 133
Re Thomas Marcus (1999) N1931
The State vs. John Tuap & Ors (2004) SC765

Counsel:

N Kubak, for the Applicant
D Mark, for the Respondent

JUDGMENT

1st July, 2011

1. BATARI & GABI, JJ: Introduction: The brief introductory remarks are obtained from Mr. Justice Kariko's decision in Re Bail Application by Bernard Uriap (2009) N3999. Mr. Bernard Uriap, the applicant, has been charged with several offences concerning the administration of justice namely:

(1) Two counts under s. 124(b) of the Criminal Code – false representation to witnesses with intent to affect their testimonies;

(2) Two counts under s. 122 (1)(b) of the Criminal Code – with intent to mislead a tribunal in a judicial proceeding, uses fabricated evidence;

(3) One count under s. 128(1) of the Criminal Code – conspiring to defeat the cause of justice;

(4) One count under s. 407(1) of the Criminal Code – conspiring to defraud;

(5) One count under s. 403(1) of the Criminal Code – false pretence.

2. The Police alleged that the applicant caused certain witnesses in a previous wilful murder charge against him in 2004 to change their evidence which resulted in that wilful murder charge being dismissed by the National Court on 14th August 2007. The Police further alleged that he also caused witnesses to sign false statements concerning a civil claim for damages he filed against the State in the National Court.

3. The applicant was committed to stand trial in the National Court by the Kokopo Committal Court on 17th November 2009.

4. The circumstances leading to this application are that soon after his arrest in July 2009 the applicant applied for bail to the National Court in Kokopo but was refused bail by Makail J. On 7th October 2009, he made a second application to the National Court in Waigani for bail pursuant to s. 42(6) of the Constitution and s.6 of the Bail Act. That application was made before Kariko J, who again refused it on the ground that the reasons for refusal of the bail application by Mr. Justice Makail were not placed before him as required under section 16 of the Bail Act. In Re Bail Application by Bernard Uriap (supra), Kariko J said:

"I am of the view that if an applicant for bail does not produce the Reasons for Refusal, then unless there is good justification why it cannot be produced, the fresh application for bail should not be heard. Such justification might be that the judge did not deliver any written reasons. The Reasons for Refusal are central to the court reconsidering the bail application, as it would fully appraise the court of why bail was earlier refused and allow the court to properly determine if there has been change in circumstances, and if the change is relevant (in relation to the ground for refusal of bail). I therefore refuse the application for bail."

5. The applicant applied for the third time to the National Court pursuant to s. 13(1) of the Bail Act. The application was made before the Deputy Chief Justice, Mr. Justice Salika, who refused to entertain it on jurisdictional ground in Bernard Uriap v The State (2009) N3822. In that case, Salika DCJ said:

"The applicant in my respectful view should invoke s.13(2) of the Bail Act and not s.13(1), that is, if he is refused bail by the National Court, he should apply to the Supreme Court for bail afresh. That to me is the logical sequence. He is entitled to go first before a single judge of the Supreme Court. If he fails there, he is entitled to go before the full bench of the Supreme Court afresh."

6. It appears that as a result of that ruling, the applicant then applied under s. 13(2) of the Bail Act before Salika DCJ sitting as a single judge of the Supreme Court. Bail was again refused on the basis that the "interests of justice" did not require the court to grant bail. We will return to the reasons for refusal later in the decision. In July 2010, the applicant applied to the full bench of the Supreme Court.

7. The question is whether an applicant, who is awaiting trial, can apply for bail before a single judge of the Supreme Court.

The Law

Bail Act

8. Section 13 of the Bail Act provides:

"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."

Supreme Court Act

9. Section 10 of the Supreme Court Act provides:

"10. Powers that may be exercised by Judge.

(1) Any power of the Supreme Court under this or any other Act—

(a) to give leave to appeal; or

(b) to extend the time within which notice of appeal or of an application for leave to appeal may be given; or

(c) to admit an appellant to bail,

may be exercised by a Judge in the same manner as it may be exercised by the Court.

(2) Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court."

Single Judge or Full Bench of the Supreme Court

10. Section 10 of the Supreme Court Act and s. 13 of the Bail Act deal with the levels of court that exercise jurisdiction in bail matters. Section 10 of the Supreme Court Act prescribes the powers that may be exercised by a single judge of the Supreme Court. A single judge may exercise discretion where an appeal is pending before the Supreme Court against the decision of the National Court. In the present case, there is no appeal so s. 10 is not relevant.

11. The Supreme Court Act and the Bail Act do not permit that the same application for bail or permission to leave the country to be heard a second time by the same bail authority unless there has been a substantial change of circumstances. In this jurisdiction, the courts have accepted the principle that an applicant may re-apply to the same bail authority for bail or permission to leave the country if there is a substantial change of circumstances (see Ex parte Arthur Gilbert Smedley [1978] PNGLR 156; An application by John Wilford Gibson (1990) N903; Re Thomas Marcus (1999) N1931).

12. Under s. 13 (2) of the Bail Act, where a person is refused bail by a judge of the National Court, he may apply for bail to the Supreme Court. It is not an appeal to the Supreme Court. In fact, there is no provision for appeal under the Bail Act.

13. In Enana Indon v The State (2001) SC669, the applicant re-applied for bail before Davani J sitting as a single judge of the Supreme Court under s. 13(2) of the Bail Act after the National Court had refused the initial application. Her Honour entertained the application and held that where an application is refused by the National Court, the applicant may re-apply to a single judge of the Supreme Court if there has been a change in circumstances. If, however, the applicant is relying on the same grounds as in the National Court or is unable to show change in circumstances, he should re-apply to the full bench of the Supreme Court.

14. The question of whether the Supreme Court comprising a single judge or a full bench should hear an application for bail based on change of circumstances was mentioned before the full bench of the Supreme Court in Noah Karo v The State (2009) SC998. However, no view was expressed as the matter was not argued.

15. The issue had in fact been raised in the earlier case of In the matter of application of Ching Loon Chan and Paidi Areni (2007) SC858 where His Honour Kapi CJ, sitting as a single judge of the Supreme Court, held that: (i) the provisions of the Supreme Court Act are not applicable where there is no appeal to the Supreme Court; (ii) a single judge of the Supreme Court has no jurisdiction to deal with bail under s. 13(2) of the Bail Act; and (iii) the Supreme Court consisting of three judges need to deal with bail under s. 13(2) of the Bail Act. He arrived at the conclusions after looking at sections 161 and 162 of the Constitution which deal with the composition and jurisdiction of the Supreme Court. His Honour said:

"There is no provision under the Bail Act which gives a single judge 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."

16. With respect, that is the correct position in law under both the Bail Act and the Supreme Court Act. We are in agreement with the late Kapi CJ that a single judge of the Supreme Court has no jurisdiction to determine bail under s. 13 (2) of the Bail Act. It is clear that the jurisdiction under s. 13(2) of the Bail Act must be exercised by at least three (3) judges unless the Supreme Court Act or the Rules of the Supreme Court provide otherwise (see s. 162(4) of the Constitution). Where there is no appeal to the Supreme Court, it is clear that the provisions of the Supreme Court Act have no application.

Application

17. In this case, the applicant has been committed to stand trial and is in custody awaiting trial. He applied for bail pursuant to section 13(2) of the Bail Act before a single judge of the Supreme Court. The application was refused and he is re-applying under section 13(2) before the full Court. We wish to comment on two aspects of this application. First, there is no appeal pending before the Supreme Court. As such, the applicant erroneously applied to a single judge of the Supreme Court. Second, the application under s. 13(2) whether to a single judge or the full bench of the Supreme Court must be a "fresh" application: Re Fred Keating v The State [1983] PNGLR 133; Felix Bakani v Rodney Daipo (2002) SC699; Noah Karo v The State (supra). The application should not be one to reinstate or set aside the previously refused application: The Independent State of Papua New Guinea v John Tuap & Ors (2004) SC765. It is irrelevant whether the application is made on the same circumstances or changed circumstances as the application that was rejected in the National Court.

18. When commenting on the nature of the application under s. 13(2) to the Supreme Court in Fred Keating v The State [1983] PNGLR 133, Andrew J said at 140:

"The application for bail to this court is an original application and is not an appeal from the National Court which refused bail (s. 13 of the Bail Act). The fact that a different court has previously decided that bail should be refused and has presumably found that one or more of the considerations in s. 9 of the Act exist, does not absolve this court from considering whether the accused is entitled to bail. The findings of the National Court will be treated like any other findings of a court. This court may have to consider whether any circumstances have altered or whether there were any circumstances not brought to the attention of the court, and the starting point will invariably be the finding when last considered by the court."

19. Again in Noah Karo v The State (supra), this Court expressed the same view. It said:

"In the case of a fresh application for bail, the Court may "rehear" the application for bail. This means that first, an Applicant may raise the same grounds relied upon in the last application for bail before the Supreme Court for consideration. In other words, an Applicant is not required to establish that circumstances have changed since the last application for bail was refused. Secondly, the Applicant is entitled to raise any new grounds to support the application for bail. See The State -v- Paul Tarccisius Tohian [1990] PNGLR 173."

20. It is now well established by authorities that bail is a matter of fundamental right under s 42 (6) of the Constitution and must be granted readily, unless the court is satisfied on reasonable grounds of one or more of the matters set out under s 9 of the Bail Act, or unless the "interests of justice otherwise require" as set out under s 42 (6) of the Constitution: Kysely v The State [1980] PNGLR 36, Re Diawo [1980] PNGLR 148.

21. In Fred Keating v The State (supra), the Supreme Court held that an application for bail by a person charged with wilful murder is to be determined pursuant to s. 9 of the Bail Act only, i.e. without reference to the interests of justice. Kidu CJ said at 135:

"There are two categories of bail applicants — (A) those who are charged with wilful murder or treason and (B) those charged with other offences.

CATEGORY A APPLICANTS

(a) They must apply to the National Court and the Supreme Court for bail.

(b) Their applications for bail are not subjected to the "interests of justice". (See s. 42 (6) of the Constitution.)

CATEGORY B APPLICANTS

(a) They are guaranteed bail at all times by s. 42 (6) of the Constitution.

(b) Their applications are subjected to the "interests of justice" by s. 42 (6) of the Constitution.

(c) They can apply to Police, Local Courts and District Courts for bail.

In cases of Category B applicants, I hold the view that s. 9 of the Bail Act 1977 does not contain all considerations that are relevant as to whether bail should be refused "in the interests of justice". Section 42 (6) of the Constitution does not say that the phrase "interests of justice" may be defined by an Act. There are two reasons why the phrase must be given a very wide meaning and application:

(a) It says "interests" — i.e. the plural of the word "interest" is used; and

(b) Section sch. 1.5 (2) says that "All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning".

"Justice" is a two-edged sword and cannot possibly be confined to mean those considerations enumerated in s. 9 (1) of the Bail Act 1977. For instance, in my opinion, it would be in the interests of justice to refuse bail to a person known to be a habitual criminal, although s. 9 (1) does not say so."

22. In support of the application for bail before this Court, the applicant filed the following affidavits: (i) affidavit of Bernard Uriap dated 26th May 2010; (ii) affidavit of James Uriap dated 8th June 2010; (iii) affidavit of Alois Uriap dated 26th May 2010; and (iv) affidavit of Simon Wakias dated 26th May 2010. Alois Uriap and Simon Wakias are the applicant's guarantors.

23. In his first application for bail before Justice Makail, the applicant used family welfare and business interest as grounds for bail. The application was refused. It was noted by Salika DCJ that in the application for bail before Makail J the applicant never raised his medical condition as a ground for bail but His Honour did intimate that medical condition of an applicant may be a ground for bail. In the second application before Justice Kariko, the grounds for refusal of bail by Makail J were never placed before him so the application was again refused. In the application made under s. 13(2) of the Bail Act before Salika DCJ in December 2009, the applicant relied on his medical condition, that his Constitutional right of trial within a reasonable time will be adversely affected as there is a long list of cases pending in court, that his business operation will be adversely affected as there is going to be a prolong detention and that he is unlikely to abscond bail as he has substantial business operation and interests within the Province and a young family to look after.

24. With respect to medical condition, there was no fresh report of the applicant's condition while in custody before His Honour Salika DCJ. Secondly, the business operation was competently managed by James and Doris Uriap, both older children of the applicant. Thirdly, the charges for which the applicant has been committed to stand trial is for interfering with State's witnesses in an earlier criminal proceedings where he was charged with wilful murder and this was a strong argument against the application. Salika DCJ, after considering s. 42(6) of the Constitution and s. 9 of the Bail Act, was of the view that "interests of justice" did not require the grant of bail and refused bail accordingly.

25. Here, the applicant has placed before the court fresh medical report attempting to show that he is in poor health due to hypertension and severe lung disease. He also denied the allegation that he interfered with State witnesses in the previous charge of wilful murder against him and that the State has not provided any evidence to show that he will interfere with State witnesses if granted bail.

26. The applicant provided a short medical report dated 4th May 2010 addressed to "To whom it may concern," an affidavit dated 13th May 2010 and a short medical certificate dated 26th May 2010. The medical certificate shows that the applicant is suffering from hypertension and lung disease. We set out the medical report in full:

"TO WHOM IT MAY CONCERN

RE: BERNARD URIAP – M/47, OF MALAKUNA NO.5.

The above has been suffering from two (2) medical diseases namely:

1. Hypertension
   
2. Severe lung disease.
   

Mr. Uriap has been a regular medical patient at the specialist medical clinic for many years, but discontinued when he has been sent to jail.

Right now no one knows how bad are the blood pressure and his heart doing without being rechecked.

I therefore recommend that Mr. Uriap regularly attend the medical clinic on Tuesday and if the hypertension worsen, he be considered release from jail.

Thank you.

DR. J. T. KAVEN

Chief Physician Consultant"

27. This is a very poor medical report. We have read medical reports relied on by applicants in their applications for bail. This one is the least convincing and poorly prepared and yet the lawyers saw it fit to place it before the court. It states that the applicant has been a regular patient at the specialist medical clinic, which indicates that his records are at the clinic. It was stated that the applicant was examined by Dr. J.T. Kaven on 26th April 2010 so a detailed report on his condition should have been prepared. It appears to us that no examination was done on the applicant due to the statement in the report that "right now no one knows how bad are the blood pressure and his heart doing without being rechecked." Secondly, there is no evidence from the applicant himself that he was in fact examined by Dr. Kaven on either 4th April, 26th April or 4th May 2010. In their letter of 29th March 2010 to the CIS Commander, Motuwe Lawyers requested the release of the applicant for full medical examination on 4th April 2010, while in their letter of 29th March 2010 to Dr. Kaven, they asked for a full medical examination to be done on the applicant on 4th May 2010. The doctor, however, recommends that the applicant attends clinic on Tuesdays and if the hypertension worsens he be released from custody. The applicant can attend clinic on Tuesdays from custody. Nothing or nobody should stop him from doing so. He does not have to be on bail to attend clinic.

28. We agree with Salika DCJ that the charges for which the applicant has been committed to stand trial are quite serious. Perverting the course of justice is a serious matter and while there is no evidence before the court that the applicant is likely to interfere with State witnesses, there is equally no guarantee that he would not do it again if he were granted bail. Due to the serious nature of the offences, we hold the view that it is not in the "interests of justice" to grant bail. Secondly, we are not satisfied that the applicant's medical condition warrants his release from custody. Accordingly, we refuse bail.

________________________________
Norbert Kubak & Co: Lawyer for the Applicant
Public Prosecutor: Lawyer for Respondent