In re Application by Kepas Hiviki [2013] PGSC 1; SC1217 (9 January 2013)

SC1217

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCAPP NO. 07 OF 2012

IN THE MATTER OF THE BAIL ACT CHAPTER 340

AND:

IN THE MATTER OF THE APPLICATION OF KEPAS HIVIKI

Waigani: Davani J
2012: 24th December
2013: 9th January

CRIMINAL LAW – Bail application – application after refusal by the National Court – application made before single Judge, Supreme Court – ss. 6, 13(1)(2) of Bail Act

CRIMINAL LAW – Bail application – single Judge, Supreme Court, must consider change in circumstances

CRIMINAL LAW – Bail application – fresh application – application to full bench of the Supreme court – S. 166(1) (2) of Constitution

Facts

Applicant applies to the Court sitting as the Supreme Court presided by a single Judge. Applicant's application for bail had earlier been refused by the National Court. Applicant relied on a 'change in circumstances' and 'exceptional circumstances' to make a fresh application for bail.

Reasons

1. Applicant, who had earlier been refused bail by the National Court, can apply to a single Judge of the Supreme Court under s. 13 of the Bail Act, citing change in circumstances. But these changes in circumstance must have arisen after the bail application was made and refused.
   
2. Applicant cannot make a fresh application for bail, before a single Judge, rather, must apply to the full bench of the Supreme Court.
   

Held

Bail Refused

Cases Cited

Fred Keating v. The State [1983] PNGLR 133
State v. Paul Tarcisicius Tohian [1990] PNGLR 173
Re Thomas Markus (1999) N1931
Enana Idon v. The State (2001) SC 669
Michael Philip v. The State (2007) N3217
Noah Karo v. The State (2009) SC 998
Kuku Hayara v. The State (2009) N3598
Re Bail Application by Bernard Uriap (2009) N3999
Re Bail Application by Bobby Selan (2009) N3690
Bernard Uriap v. The State (2009) N3822
Application by Ruben Micah and Bonny Solomon (2010) N4059

Counsel:

Mr F. Griffin, for the Applicant
Mr J.W Tamate, for the State

DECISION

9th January, 2013

1. DAVANI J: Before me, sitting as a single Judge of the Supreme Court, is an application filed on 20th December, 2012 by Young & Williams Lawyers, lawyers for the applicant, Kepas Hiviki, who seeks bail, pending committal.
   
2. The application is made pursuant to ss. 6 and 13 of the Bail Act, that the applicant be granted bail upon such terms as the Court thinks fit.
   
3. The application is supported by the applicant's affidavit sworn on 19th December, 2012 and filed on 20th December, 2012. Together with that are the affidavits of Major Harris Lange and Mark Goina, both sworn and filed respectively on 19th and 20th December, 2012, and who are named as Guarantors.
   
4. The State opposes the application for bail.
   

Background and Analysis of Evidence and the Law

Background

5. The applicant, a Defence Force Soldier, holding the rank of corporal, comes to this Court for bail, after bail was refused by the National Court on 13th December, 2012.
   
6. The applicant is before the Court for bail relying on ss. 6 and 13 of the Bail Act.
   
7. The issue as to whether the applicant can be given bail by a single judge of the Supreme Court, is subject to whether:
   

i. the applicant is before me moving a fresh application for bail, or

ii. The applicant is moving under s. 13 of the Bail Act, after a refusal by the National Court.

8. Mr Griffin did ask before the commencement of the hearing, if I, sitting as a single Judge of the Supreme Court, can hear the application and I said I could because I understood the application was made after a refusal by a National Court Judge. However, after hearing Mr Griffin, I note now that he is infact making a fresh application for bail.
   

Issues

9. Two issues arise in this application. These are:
   
   • (i) Does a single judge of the Supreme Court, have the power to make orders for bail on a fresh application for bail, where the applicant is in custody, on remand, pending committal?
     
   • (ii) Should an applicant be relying on change of circumstances under s. 13 of the Bail Act, to then seek orders before a single Judge of the Supreme Court for bail, based on an earlier refusal by the National Court?
     
10. I will consider these issues together, in my discussions in these reasons.
    

Bail Act

11. Firstly, s. 6 of the Bail Act reads:
    

6. APPLICATION FOR BAIL MAY BE MADE AT ANY TIME.

(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.

(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.

(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section 9.

12. Section 6 (1) states that an application for bail can be made "to a Court at any time after a person has been arrested or detained or at any stage of a proceedings". "Court" in that provision is defined in the Bail Act as the Supreme Court or the National Court or a District Court or the Local Court (until it was abolished by the Local Courts (Amendment) Act 2000 but not the village Court (see S. 1 of the Bail Act)).
    
13. The Supreme Court is defined under s. 161 of the Constitution as bench consisting "...of a least 3 Judges" (S. 161 (2)).
    
14. Mr Griffin submits that he is making a fresh application for bail and relies on the fact that there has been a change in circumstances and that there are exceptional circumstances that warrant the grant of bail. He submits that these changes in circumstances are:
    
    • (i) Employment Status: The applicant's unique position in the Defence Force, that he is the sole supply ammunition clerk responsible for the management, supervision and movement of ammunition supplied to the PNG Defence Force.
      

(ii) Personal Safety: He fears for his safety if he is held in custody on remand at the Bomana gaol, because in 2009, he was involved in the apprehension of criminals who are presently serving time at the Bomana gaol.

(iii) Medical Grounds: That in 2009, during the apprehension and arrest of two criminals, he was shot in the right leg. Presently, he continues to suffer chronic pain and post-traumatic stress disorder.

15. I enquired if Mr Griffin was in fact applying under s. 13 of the Bail Act, after the refusal by the National Court. Although the application before me seeks bail under s. 13 of the Bail Act, Mr Griffin was not sure by his responses to me but strongly maintained that he was making a fresh application. In saying that he referred to and relied on the several supporting affidavits, including the affidavits of two very senior officers in the PNG Defence Force, which affidavits demonstrate or depose to the existing "special circumstances", and that they were also prepared to act as guarantors, in the event bail was granted.
    
16. As for the State, although Mr Tamate opposed the application, he only submitted that the grounds relied on by the applicant were not special circumstances. Mr Tamate made no submissions on whether the applicant should be applying under s. 13 of the Bail Act or whether the applicant should be applying to the full bench of the Supreme Court for bail, considering this was a fresh application, after a refusal.
    

The Law on Refusal of Bail

17. The law on applications for bail after refusal was set in Re Thomas Markus (1999) N1931. An applicant refused bail previously by a Judge of the National Court may 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. And in considering whether there has been a change in circumstances, it is necessary to revisit the Judge's earlier reasons for refusing bail with reference to S. 9(1) of the Bail Act.
    
18. Kapi CJ, as he then was, In the matter of s. 42 (6) of the Constitution (2007) SC 858, dated 13th July, 2007, held that because there was no appeal to the Supreme Court, that an applicant who was refused bail in the National Court, could not apply to a single Judge of the Supreme Court for bail but had to apply to the full bench of the Supreme Court. He held that the Supreme Court Act prescribed the powers that may be exercised by a single Judge of the Supreme Court, ie. ss. 5 and 10, and only if there was an appeal pending before the Supreme Court against the decision of the National Court. These sections read:
    

"5. INCIDENTAL DIRECTIONS AND INTERIM ORDERS.

(1) Where an appeal is pending before the Supreme Court–

(a) a direction not involving the decision on the appeal; or

(b) an interim order to prevent prejudice to the claims of the parties; or

(c) an order in any proceedings (other than criminal proceedings) for security for costs; or

(d) an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or

(e) an order admitting an appellant to bail,

may be made by a Judge.

(2) A direction or order made under Subsection (1) shall be deemed to be a direction or order of the Supreme Court.

(3) A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court.

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."

(my emphasis)

19. Kariko .J sitting as the National Court in Re Bail Application by Bernard Uriap (2009) N3999 dated 9th October, 2009 and relying on Re Bobby Selan (2009) N3690, held that an applicant in the National Court must meet these four requirements:
    

i. Notify the Court of the earlier refusal for bail;

ii. Provide a copy of the reasons for the earlier refusal of bail;

iii. Present evidence of change in circumstances; and

iv. Demonstrate how the change is relevant.

20. The same applicant, Bernard Uriap, then went before Salika DCJ in Bernard Uriap v. The State (2009) N3822 dated 23rd December, 2009. Salika DCJ, reminded himself of an applicant's right to bail under s. 42(6) of the Constitution, that bail is to be readily granted unless the interests of justice otherwise require. His Honour noted that s. 6(1) and (2) of the Bail Act are not subject to s. 13 of that Act. He reminded himself that although s. 6 is a general provision for bail applications, that it is not an open ended invitation to make bail applications after bail applications before the same court, over and over again and that there must be an end and finality to this. His Honour held that the applicant should now 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 afresh, that he can apply firstly to a single judge of the Supreme Court and if he fails there, then he is entitled to go before the full bench of the Supreme Court, afresh. He also emphasized that every fresh application should have the reasons for refusal to grant bail as this will assist the next bail authority to make an informed decision when considering the next bail application.
    
21. In Application by Ruben Micah and Bonny Solomon (2010) N4059 dated 8th July, 2010, Cannings .J revisited the law and pointed out, as he held in Bobby Selan (2009) N3690, that the right to make a fresh application to the National Court, rather than going to the Supreme Court under s. 13(2), is not expressly conferred by the Bail Act. In fact, some Judges have taken the view that there is no such right and that an unsuccessful applicant cannot go back to the National Court, but to go directly to the Supreme court under s. 13 (2) of the Bail Act. (See Michael Philip v. The State (2007) N3217; Kuku Hayara v. The State (2009) N3598), as opposed to there being an appeal pending before the Supreme court first, before an applicant can go to the full bench of the Supreme Court (see In the matter of s. 42(6) of the Constitution (supra).
    

This Court's approach

22. The applicant comes to the Supreme Court before me, sitting as a single Judge. He does so whilst on remand, awaiting committal. This means that s. 5 and 10 of the Supreme Court Act do not apply. It is the Bail Act that applies.
    
23. My view is that the approach taken by Gabi .J and more particularly Makail .J in Michael Philip and Kuku Hayara is the preferred approach. That there is good reason for an applicant for bail to apply to the next level of a bail hierarchy as is provided in s. 13(1) of the Bail Act, to prevent an abuse of the exercise of jurisdiction by the applicants, especially where the applicant goes before the same authority as in the National Court, until they get bail.
    
24. That is, the applicant can apply to a single Judge of the Supreme Court, citing change in circumstances (See Enana Idon v. The State (2001) SC 669) or to apply afresh to a full bench of the Supreme Court, if he is unable to show a change in circumstances.
    
25. In Noah Karo v. the State (2009) SC 998, the Supreme Court consisting of Lenalia, Yagi and Makail .JJ, heard a bail application after it had been refused in the National Court. The Supreme Court stressed that an application for bail to the Supreme Court based on a change of circumstances is different to a fresh application for bail to the Supreme Court. The Supreme Court there, emphasized the difference between the two as follows:
    
    1. In an application for bail based on change of circumstances, an applicant is required to establish that circumstances have changed since the last application for bail was refused. The onus is on the applicant to show that the earlier grounds on which the National Court refused bail, have changed or no longer exist. Also, that the circumstances must be relevant to the earlier application for bail.
       

ii. That in a fresh application for bail, the Court may 'rehear' the application for bail. It means that an applicant can raise the same grounds relied upon in the last application for bail. It means that an applicant is not required to establish that circumstances have changed since the last application for bail was refused. Also, that the applicant can raise new grounds to support his application for bail (See the State v. Paul Tarcisius Tohian [1990] PNGLR 173).

26. So where should this applicant go, to apply for bail, especially as his earlier application for bail was refused by the National Court?
    
27. Section 13 (2) of the Bail Act, is the guiding provision. The applicant must go to the Supreme Court if he is refused bail by the National Court.
    
28. The Supreme Court shall consist of at least 3 Judges (S. 16 (2) of the Constitution) but that is subject to S. 162(2), which is that the Jurisdiction of the Supreme Court can be exercised by a single Judge of the Supreme Court if an act of parliament or the Rules of the Supreme Court, provide for that.
    
29. In a case such as this, neither the Bail Act nor the Supreme Court Act and Rules or any other Act of Parliament, states that after a refusal of bail by a National Court Judge, a single Judge of the Supreme Court can hear a bail application.
    
30. However, the Courts have developed the law to the extent as discussed above, which is that:
    

(i) If an applicant is applying for bail, after a refusal by the National Court, he must go before the Supreme Court consisting of at least 3 Judges and show there to be a change in circumstances since the refusal. (Michael Phillip v. The State (supra); Kulu Hayara v. The State (supra)).

To show or demonstrate a change in circumstances, means that he cannot rely on the same reasons or evidence advanced in the National Court. These must be events that occurred after the hearing in the National Court. Those are deemed to be a change in circumstances.

(ii) Or, the applicant can apply to a single Judge of the Supreme Court, and cite the fact that there has been a change in circumstances since the refusal, events that occurred, after the hearing in the National Court; (See Enana Dion v. The State; Bernard Uriap v. The State (supra)).

(iii) Or, the applicant can apply for bail, afresh, to the full bench of the Supreme Court, consisting of at least 3 Judges. He can attach reasons for refusal of bail in the Court below, because that will assist the Court in its deliberations (See Bernard Uriap v. The State (supra)). Applying afresh means the factors in s. 9 of the Bail Act, will be considered.

(iv) Or if there is an appeal pending in the Supreme Court, and an applicant was refused bail by the National Court, then the applicant must go before the full bench of the Supreme Court, to apply for bail. (see In the matter of s. 42 of the Constitution (supra)).

31. In this case, the applicant claims there has been a change in circumstances. These circumstances are what was put before the Judge in the National Court and which the Judge considered at length in his reasons for decision which is annexure 'KH 4' of the applicant's affidavit sworn on 19th December, 2012 and filed on 20th December, 2012.
    
32. In those reasons, his Honour sets out the detailed facts and his discussions on the law. The applicant is in custody on remand on a charge of willful murder of one Lois Matamon and 2 counts of attempted murder of Bobby Brit and Elma Tiki, charges laid respectively under ss. 299 and 304 of the Criminal Code.
    
33. The State alleges that the applicant, a corporal in the PNG Defence Force, drove to the PNG Power Compound, Hohola, on 29th November, 2012 and indiscriminately fired into a crowd, shooting the 3 above named persons. He did this after a relative of his was allegedly assaulted by individuals resident at the PNG Power compound.
    
34. In his application for bail, the applicant raised the issue of the welfare of his family and his career as a soldier. The trial Judge held that these are factors that should not affect the refusal of bail.
    
35. In this application, Mr Griffin raises the following to be a change in circumstances and exceptional circumstances. These are:
    

(i) That the applicant is responsible for the management and control of all ammunition stored and supplied for the PNG Defence Force (Kepas Hiviki's affidavit sworn on 19th December, 2012 and filed on 20th December, 2012). That this is a unique position.

36. I do not know why this evidence was not put before the National Court. But if it was, that it may have been considered under the part "Concerns for the welfare of his family and his professional career", referred to in his Honour's published reasons.
    
37. In my view, that is not a change in circumstances. It is not something that occurred after the decision was handed down by the National Court but a situation that existed at the time the application was heard.
    

(ii) The applicant refers to the fact that his life is in danger because he is presently in custody with two known criminals, whom he personally apprehended in 2009.

38. I do not know if these facts were made known to the Judge or not. But what is apparent is that these facts were in existence at the time of the application for bail in the National Court. Why they were not made known, I do not know. And if they were made known, the applicant cannot rely on those same facts again, citing change in circumstances. These are definitely not a change in circumstances.
    

(iii) The applicant then asks the court to consider that he has a physical disability which requires that he take medication and that disability was received after a shoot out with criminals in 2009, related to point no. (ii) above.

39. Again, these factors were known to the applicant when he made the application to the National Court. These are not factors that arose after the bail application was made to the National Court on 12th December, 2012.
    
40. Additionally, Mr Griffin continuously refers to these circumstances as 'exceptional circumstances', probably a reference to principles held in Fred Keating v. The State [1983] PNGLR 133 because of the fact that the applicant is charged with very serious offences, one of which is willful murder. If that is the case, then Mr Griffin is effectively making a fresh application.
    
41. It follows that this application must be made to the Supreme Court consisting of at least 3 judges. Clearly, it is not an application to me under s. 13(2) of the Bail Act, to consider a change in circumstances after a refusal, rather, it is a fresh application he makes, and one, I find, that ought to be made to the full bench of the Supreme Court.
    
42. Bail is refused.

____________________________________

Young & Williams: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State