Nenekan v State [2023] PGSC 154; SC2514 (28 July 2023)

SC2514

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APP NO. 02 OF 2023

WANI NENEKAN
Applicant

-V-

THE STATE
Respondent

Waigani: Batari J, Kangwia J and Narokobi J
2023: 25^th & 28^th July

PRACTICE & PROCEDURE – bail application – bail refused by the National Court – fresh application – principles – considerations of – whether continued detention unjustified

The applicant is on trial on a charge of murder. His previous application in the National Court for bail was refused. This is his fresh application to the Supreme Court. It is opposed by the State.

Held:

(1) Where bail is refused by the National Court, a further application may be made to the full Supreme Court under s 13(2) of the Bail Act.
(2) An application under s 13(2) is a fresh application and is neither an appeal from nor a review of the National Court decision.
(3) The applicant does not need to demonstrate a change of circumstances since the previous application, and he may raise the same grounds argued previously or rely on new grounds.
(4) Section 9(1) of the Bail Act lists several circumstances where a bail authority ought to refuse bail if at least one of those circumstances exists, but the bail authority still has discretion to permit bail if the applicant shows cause why his continued detention is not justified.
(5) Pursuant to s 9(2), a court in considering a matter under the section may act on such information that is available to it and it is not bound to apply the technical rules of evidence.
(6) The concerns raised by the applicant regarding his business and family are natural consequences of being detained under the criminal process, and while the concerns are relevant and legitimate, the applicant has not satisfied the court that his continued detention is unjustified.
(7) The ground alleging unreasonable delay of the trial lacks merit.
(8) Bail is accordingly refused.

Cases Cited:

Bernard Uriap v The State (2011) SC1108
Bhosip Kaiwi v The State (2023) SC2359
Francis Walami v The State (2021) SC2182
Fred Keating v The State [1983] PNGLR 133
Kange v The State (2016) SC1530
Theo Yausase v The State (2011) SC1112

Legislation:

Bail Act (Chapter 340)
Constitution
Criminal Code (Chapter 262)

Counsel:

Mr L Siminji, for the Applicant
Ms T Kametan, for the Respondent

APPLICATION

This is an application for bail to the Supreme Court under s 13(2) of the Bail Act (Chapter 340).

28^th July 2023

1. BY THE COURT: The applicant is currently going through committal proceedings before the District Court on a charge of murder contrary to s 300 of the Criminal Code (Chapter 262). He has been in custody four months following his arrest and detention on 25 March 2023.
   
2. A committal proceeding before the Committal Court invariably involves, inter alia, filing and service of documents on the accused person under s. 94 of the District Court Act, and committal for trial without consideration of the evidence (under s. 94B), consideration of evidence (under s.94C) or whether there is prima evidence to committal for trial (under s. 95) and in between, numerous adjournments.
   
3. At the hearing of this application, it is not disclosed, at what stage of the committal proceeding, the applicant’s case is at. However, from the bar table, it was mentioned the case has been adjourned for further committal hearing.
   
4. The applicant has previously been refused bail by the National Court. This is his fresh application for bail to this Court.
   
5. The application is opposed by the State.
   

Relevant principles

6. In an application for bail, persons charged with offences other than treason and wilful murder start with the advantage of being guaranteed bail under s 42 (6) of the Constitution. They may also apply for bail at any stage of the proceedings under s. 6 of the Bail Act.
   
7. The application must however show under s. 42 (6) of the Constitution, the interest of justice does not require his further or prolonged detention in custody. Also, by virtue of s 4(1) of the Bail Act, a person charged with murder may be granted bail only by the National Court or the Supreme Court.
   
8. Where bail is refused by the National Court, a further application may be made to the Supreme Court under s 13 (2) of the Bail Act which shall be heard by the full court: Bernard Uriap v The State (2011) SC1108 (Batari J, Gabi J); Bhosip Kaiwi v The State (2023) SC2359 (Hartshorn J, Kariko J. Bona J).
   
9. In, Theo Yausase v The State (2011) SC1112 (Salika DCJ, Cannings J, Sawong J) this Court further clarified that such an application is a fresh application, it is neither an appeal from nor a review of the National Court decision. See also, and Francis Walami v The State (2021) SC2182 (Cannings J, Murray J, Narokobi J); Bhosip Kaiwi v The State. And the applicant is not required to demonstrate a change of circumstances since the previous application.
   
10. However, he may raise the same grounds raised previously or rely on new grounds: Kange v The State (2016) SC1530 (Kandakasi J, David & Neill JJ); Francis Walami v The State (supra).
    
11. A bail authority is mandated not to refuse bail unless satisfied that at least one of those matters enumerated under s 9 (1) of the Bail Act exists. However, the bail authority still has discretion to permit bail if the applicant shows cause why his continued detention is not justified: Fred Keating v The State (1983) PNGLR 133 (Sir Buri Kidu CJ, Kapi DCJ and Andrew J); Francis Walami v The State (supra); Bhosip Kaiwi v The State (supra).
    
12. Section 9 (2) makes it clear that the bail authority is not bound to apply the technical rules of evidence when considering a matter under s. 9 (1) and it may act on such information that is available to it.
    
13. We adopt and follow these guiding principles in our deliberations.
    

Grounds for the application

14. The applicant relies on s 13 (2) of the Bail Act and s 42 (7) of the Constitution as forming the jurisdiction basis for his application. His contentions are founded on numerous grounds for the application. The main ones are namely;
    
    1. He is first time-offender and is innocent of the charge,
    2. His business interests are and will be adversely affected by his prolonged detention,
    100. The welfare of his two wives and five children are being affected and deterioration due to his detention,
    4. He needs to be on bail to look for a good lawyer to prepare his defence.
       
15. Bail was previously refused on the s 9 (1) of the Bail Act considerations, in summary, that:
    
    1. The emotions were still high and for his own protection, there was a likelihood of payback.
    2. The applicant is likely to interfere with prosecution witnesses.
       
16. In this application, the State still opposes the grant of bail on the same grounds. Counsel, Ms Kametan representing the State added in her submissions, that the offence the applicant is charged with consists of a serious assault.
    
17. These are relevant concerns which the applicant does not challenge. Mr Siminji for the applicant has not filed or relied on any material evidence or fact regarding the s 9 (1) considerations upon which bail was previously refused on the assertions that there is a likelihood the applicant will interfere with prosecution witnesses.
    
18. So, on the materials before us, more so upon the uncertainties on the status of the committal proceedings with the reasonable inferences, that police might still be still gathering witness statements, we are satisfied these circumstances continue to exist.
    
19. Without excluding those considerations against bail, the applicant contends that his continued detention is unjustified for reasons that:
    
    • (1) He is first time offender and is innocent of the charge,
    • (2) The management and operations of his business have been adversely impacted.
    • (3) The welfare of his family has suffered.
    • (4) He needs to be on bail to prepare his defence
      

Plea of first-time offence and defence of general denial

20. We find no merit on this ground. The applicant did not make any submissions of substance on it.
    
21. In any event the strength of the case against the applicant or how strong a defence is against the charge and allegations are matters for trial. The guilt or innocence of the applicant is not a relevant consideration in the bail application. However, it may be argued under the auspicious of “interest of justice” as intimated by Andrew J in Fred Keating v The State at p. 139:
    

“However by s 3, in matters other than treason or wilful murder the bail authority may still have to consider the question of the interests of justice which in my opinion may involve considerations other than those in s 9 of the Act (to which I shall shortly refer). For example, I find it surprising that s 9 contains no provision that a relevant consideration is the strength of the evidence against the defendant, the scope of the prosecution case and the probability of a conviction.”

22. The onus is on the applicant to provide material fact to show that the strength of the evidence against him, the scope of the prosecution case and the probability of an acquittal is in his favour. He has not shown that possibility.
    

Business

23. The applicant relies on his affidavit in support of this ground. He states:
    
    • (1) he has a couple of properties at Gerehu Stage 5 and Stage 6 on which he operated rental accommodation a trade store and other small scale business dealings;
    • (2) sometime in January 2023 he and his relatives thwarted an attempt break and enter of the trade store;
    • (3) in February 2023 another attempted break and enter into the business premises by youths was instigated by the deceased;
    • (4) following his detention, his properties and businesses are being run down by his two wives who have no experience in running a business;
    • (5) other relatives are trying to take over his properties and business and are constantly threatening to evict his wives and children from the Gerehu properties.
      
24. The State submits and we agree that the courts in this jurisdiction have viewed the adverse impact on a person’s business due to his detention under the criminal process, to be an inevitable consequence. See, Theo Yausase v The State (supra). The situation in that case is similar to the present in that “the nature and extent of the adverse effects are vague and unquantified”.

,

25. This ground also fails as we are not satisfied the circumstances of the applicant’s business warrants him being allowed bail.
    

Family considerations

26. The applicant has two wives and five children. He is concerned that other relatives are attempting to evict his family out of his properties and that he is unable to provide for their needs.
    
27. Again we rely on, Theo Yausase v The State (supra), for the proposition that the difficulties that will befall members of the applicant’s family following his arrest and detention is the natural consequence of being arrested and charged and that it is not a proper ground for the grant of bail.
    
28. The applicant does not suggest that other relevant family members and relatives are not and cannot adequately provide for his wives and children.
    
29. There is little else to support this ground. We are not satisfied the welfare of the applicant’s wives and children justifies the grant of bail.
    

Defence

30. The applicant contents under this head he needed to be on bail to look for a good lawyer to prepare his defence. The applicant has set out the circumstances for requiring him to find a good lawyer.
    
31. The contention flies in the face of the Office of the Public Solicitor who represents him in this application. Lawyers from the Office of the Public Solicitor are better placed and more experienced in representing accused persons on criminal trials because that is what the Constitution mandates the Public Solicitor to do. Mr Siminji who is representing the applicant, we note, is the most senior and experienced lawyer from the Office of the Public Solicitor.
    
32. While we accept the right of the applicant to obtain the services of a lawyer of his own choosing, we see no merit in his contention when the applicant already has the services of the Public Solicitor.
    

Conclusion

33. While the concerns of the applicant regarding his innocence, business and family and right to a lawyer are relevant and legitimate, he has not shown in all the circumstances that his continued detention is not justified. We accordingly refuse his application.
    

Order

34. The Court orders that the application for bail filed 3 July 2023 is refused.

__________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent