Hulape v Independent State of Papua New Guinea [2019] PGSC 68; SC1845 (5 September 2019)

SC1845

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP 5 of 2019

BETWEEN:
CHRISTOPHER HULAPE
Applicant

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Defendant

Waigani: Hartshorn J,
2019: 4^th & 5^th September

BAIL - Application for bail pursuant to s. 11 Bail Act before a single judge of the Supreme Court after conviction and sentence – Second application for bail before a single judge of the Supreme Court on the ground of change of circumstances – whether a change of circumstances established

Cases Cited:

Re Thomas Markus (1999) N1931
Sam and Denden Tom v. Superintendent Corrective Services [2004] PNGLR 43 Noah Karo v. State (2009) SC998
Gilbert Guari v. The State (2015) SC1446
Felix Kange v. The State (2016) SC1562

Counsel:

Mr. G. Konjib, for the Applicant
Mr. T. McPhee and Mr. B. Savarei, for the Respondent

5^th September, 2019

1. HARTSHORN J: This is a decision on whether the applicant has established that there exists a change of circumstances such that this court, constituted by a single judge of the Supreme Court, has jurisdiction to hear and deliberate upon the applicant’s application for bail.

Background

2. The applicant was convicted and sentenced to 5 years imprisonment for misappropriation in November and December 2016, which sentence was wholly suspended. The applicant was then convicted and sentenced to 5 years imprisonment with hard labour for different offences of false pretences and misappropriation in October and November 2017.

3. This is the applicant’s second bail application before this court constituted by a single judge. The first application, before Dingake J, was unsuccessful as it was made pursuant to s. 6(1) Bail Act instead of s. 11 and the applicant failed to demonstrate exceptional circumstances.

4. This bail application is made pursuant to s. 11 Bail Act and s. 10(1)(c) Supreme Court Act and on the ground that there is a change of circumstances.

5. This court heard argument and reserved its decision on whether the applicant has established that there exists a change of circumstances such that this court has jurisdiction to hear and deliberate upon this bail application.

Consideration

6. It is agreed between the parties that for this court to hear the applicant’s present bail application, the applicant has to establish that there has been a change of circumstances since the hearing of his unsuccessful bail application before Dingake J. on 2^nd November 2018. I am satisfied that this agreement reflects the correct position. I refer in this regard to the decision of Lay J. in Sam and Denden Tom v. Superintendent Corrective Services [2004] PNGLR 43, [2004] 1 42 and his Honour’s obiter comments therein, with which I respectfully agree.

7. In this instance the applicant submits that the change of circumstances consists first, of the application being made under different sections of the Bail Act and Constitution. Secondly, that Dingake J. did not consider amongst others, the suspension of the sentenced imposed upon the applicant in December 2016 if the applicant complied with certain conditions.

8. In Noah Karo v. State (2009) SC998, the Supreme Court at [6] stated:

“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 and the onus is on the Applicant. He must demonstrate that the grounds upon which the National Court had refused bail have changed or no longer exists. Further, the circumstances must be relevant to the earlier application for bail. Only then will the Supreme Court grant bail.”

9. Whilst this statement was made in the context of a change of circumstances between an unsuccessful National Court bail hearing and a Supreme Court bail hearing, to my mind the same principles apply to the present scenario. I also refer in this regard concerning ‘a change of circumstances’, to the Supreme Court decisions in Gilbert Guari v. The State (2015) SC1446 and Felix Kange v. The State (2016) SC1562 and the National Court decisions of Injia J. (as he then was) in Re Thomas Markus (1999) N1931 and Lay J. in Tom v. Superintendent (supra).

10. In this instance, the reliance upon different sections of the Bail Act and Constitution is not a change of circumstances. Further, Dingake J. did refer to the applicant’s suspension of sentence. In any event, the circumstances surrounding and the sentencing of the applicant, are not a change of circumstances as they existed at the time of the hearing before Dingake J and have not changed.

11. From a consideration of these two points and also the other evidence relied upon by the applicant in this application, I am satisfied that the applicant has failed to establish a change of circumstances since his unsuccessful bail application before Dingake J. Consequently, this court does not have the jurisdiction to hear and deliberate upon the applicant’s present bail application.

Orders

The bail application of the applicant filed 21^st June 2019 is dismissed
__________________________________________________________________
Konjib Lawyers: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent