Keating v The State [1983] PNGLR 133 (24 May 1983)

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[1983] PNGLR 133 - Re Application for Bail pursuant to S13(2) Bail Act 1977; Fred Keating v The State

CRIMINAL LAW - Practice and procedure - Bail application - Following committal for trial - Offence of wilful murder - Principles applicable on bail application - Discretion - Bail Act 1977, s. 9.[xix]¹

Section 42(6) of the Constitution provides that a person arrested or detained for an offence other than wilful murder and treason is entitled to bail unless the interests of justice otherwise require.

Section 4 of the Bail Act, 1977, provides that a person charged with wilful murder shall not be granted bail except by the National Court or the Supreme Court.

Section 9 of the Bail Act provides that bail shall not be refused unless the bailing authority is satisfied on reasonable grounds as to one or more of considerations enumerated in s. 9(1).

(1) 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.

(2) The grant or refusal of bail pursuant to s. 9 of the Bail Act is discretionary in all cases other than wilful murder and treason.

(3) (By Kidu CJ and Andrew J, Kapi DCJ not deciding). The grant or refusal of bail pursuant to s. 9 of the Bail Act is discretionary in cases of wilful murder (and treason).

(4) (By Kidu CJ and Andrew J, Kapi DCJ not deciding). Once one or more of the considerations in s. 9(1) are proved bail should be refused unless the applicant shows cause why his detention in custody is not justified.

KIDU CJ: The applicant is charged with the wilful murder of his wife. He is in custody pending his trial in the National Court.

His application for bail in the National Court was refused on 22 April 1983. He applied to this Court under s. 13(2) of the Bail Act 1977 but we also refused him bail. I now publish my reasons for doing so.

1. He had surrendered his passport (he is a British citizen) to the District Court at Goroka and therefore was unlikely to leave the country.

3. He was unlikely to violate any one of the grounds specified in s. 9(1)(a) to (g) of the Bail Act 1977.

Those persons charged with offences other than treason and wilful murder are guaranteed bail by the Constitution. Section 42(6) thereof provides as follows:

“A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.”

The right of persons charged with wilful murder to apply for bail is afforded by s. 4 of the Bail Act 1977. This provision reads as follows:

“A person charged with wilful murder, murder or an offence punishable by death shall not be granted bail except by the National Court or the Supreme Court.” [emphasis added]

When considering the grant or refusal of bail in cases other than treason or wilful murder the courts and other bail authorities are to be guided generally by s. 9 of the Bail Act 1977. It provides as follows:

(1) Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:

(b) that the offence with which the person has been charged was committed whilst the person was on bail; or

(c) that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of:

(iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive; or

(d) that the person is likely to commit an indictable offence if he is not in custody; or

(e) it is necessary for the person’s own protection for him to be in custody; or

(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings; or

(g) that the alleged offence involves property of substantial value which has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property.

(2) Subject to subsection (3), a bail authority shall not refuse bail on the basis of a consideration specified in Subsection (1) unless facts relating to that consideration have been established to the reasonable satisfaction of the bail authority either of its own knowledge or on the evidence furnished by a credible person.

(3) In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.” (emphasis added)

Before going into the reasons why I refused bail in this case, I make some observations on a point raised during the hearing of this application — a point on which counsel unfortunately were not prepared and therefore offered very little assistance. The point raised was this: If a bail authority is satisfied that one of the considerations in s. 9(1) of the Bail Act 1977 is proved, does it still have a discretion to refuse bail? (At least this was my understanding of the point raised.)

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

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

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

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.

In the case of Re Samir Taleb Abdullah Jaber Anabtawi [1980] P.N.G.L.R. 195, Wilson J thought that failure to prove the evidence of one s. 9(1) criteria left him no option but to grant bail. This was a drug smuggling case and he said at 197, 198, as follows:

“The evidence is not that the applicant is a drug smuggler or drug pusher; at the highest on the importing charge, the evidence is that he assisted an alleged drug smuggler or pusher; at the highest on the unlawful possession charge, the evidence is that the applicant had in his home for a short time some suitcases belonging to a friend of his, which suitcases, unknown to him, contained prohibited imports in the form of a drug.

Regarding the question of whether the applicant is likely or unlikely to interfere with witnesses, no evidence has been placed before me showing a tendency so to interfere or a real possibility that he will so interfere (see In re Paul Louis Kysely [1980] P.N.G.L.R. 36).

The case of the respondent might have been stronger and my decision might have been otherwise if it had appeared to me that there was a strong probability that the applicant would be convicted of one or other of the charges he faces. On the evidence placed before me the probabilities are all the other way. It is inappropriate for me to say any more than that about the evidence upon this application.

I am, therefore, not satisfied on reasonable grounds as to either of the considerations set out in s. 9(1)(a) and (f) of the Bail Act. Accordingly, the application for bail is granted.

I will hear counsel as to the amount of the bail, the conditions of bail, and any other ancillary matters.

I take this opportunity to draw attention of the legislature to the provisions of s. 9(1) of the Bail Act 1977. It seems to me that, if it is appropriate for a bailing authority to refuse bail if satisfied on reasonable grounds that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of a serious assault, or a threat of violence to another person or having or possessing a firearm, imitation firearm, other offensive weapon or explosive, so it is also appropriate at this time in Papua New Guinea for a bailing authority to have power to refuse bail if satisfied on reasonable grounds that the alleged act or any of the acts constituting the offence in respect of which the person is in custody consists or consist of importing or possessing such a large quantity of a prohibited import in the form of a drug as to manifest an intention to supply others.”

This is the wrong view of s. 42(6) of the Constitution, and s. 9(1) of the Bail Act 1977. In my view it would be quite proper for a bail authority in considering whether bail should be refused to take into account the type of circumstances mentioned by Wilson J in the abovementioned case.

As pointed out earlier, a person charged with wilful murder can only be granted bail by the National Court or the Supreme Court. The Act does not make any specific provisions with regard to the considerations that should be applicable when bail applications in wilful murder cases are determined by the National Court and the Supreme Court. It is therefore clear that the considerations set out in s. 9(1) apply and since s. 42(6) does not apply to wilful murder cases, what I said earlier about the “interests of justice” are not relevant to such cases. I agree with my brothers Kapi and Andrew that in wilful murder (and treason) cases, only those considerations set out in s. 9(1) of the Act are relevant and no others including “exceptional circumstances”. I agree with Andrew J for the reasons he gives in his judgment that in wilful murder cases bail authorities have discretions.

In this particular case, the material before the court quite clearly shows that violence had been used by the accused in causing the death of his wife. He used a stick to beat her to death. There is also evidence contained in the published reasons for refusal of bail by the National Court, that there is likelihood that if the accused was released from custody he would interfere with one of the witnesses, a Miss Anne Thompson.

KAPI DCJ: The applicant was charged with the wilful murder of his wife. Both the applicant and the deceased wife are British subjects. He was alleged to have committed the offence on 17 April 1983.

Before the committal was completed, the applicant made an application for bail before the National Court sitting at Kundiawa, on 22 April 1983. The application was refused.

The applicant was committed to stand trial on 20 May 1983. Under s. 13(2) of the Bail Act 1977, where a person is refused bail by a judge, he may apply for bail to the Supreme Court. This application is before us under this provision. Section 13 does not set out the principles that should be applied.

It is clear from the general words of s. 9 of the Bail Act, that this application should be considered in accordance with the principles under this provision. In addition to this, reasons for refusal should be taken into account. See Re Herman Kag! Diawo [1980] P.N.G.L.R. 148 at 151 per Kearney DCJ (as he then was).

Prior to Independence, principles relating to bail on wilful murder were covered by s. 565 of the Criminal Code Act 1974. Bail could only be granted by the National Court. See s. 111 of the District Courts Act 1963.

Section 9 of Criminal Code (Miscellaneous Provisions) Act 1975 also gave a discretion to the National Court to grant bail to persons who were charged with indictable offences.

Under these provisions, the court had a very wide discretion. There was no legislative directive to grant bail more readily.

The Criminal Code (Arrest) Act 1977 (No. 13 of 77), s. 32, repealed s. 565 of the Criminal Code Act 1974. Section 9 of the Criminal Code (Miscellaneous Provisions) Act 1975 was repealed by Criminal Code (Miscellaneous Provisions) (Repeal) Act 1977 (No. 29 of 1977). The Common Law was abolished by the Bail Act 1977.

At Independence, the law relating to bail was affected significantly by the Constitution. Section 42(6) of the Constitution gave all persons entitlement to bail at all times. See Re Herman Kagl Diawo [1980] P.N.G.L.R. 148. This provision is not applicable to a person who is charged with wilful murder. However, this provision has a significant influence on the provisions of the Bail Act under which this application is to be determined. It is significant that the Bail Act begins with the words:

“The object of this Part is to give effect to Section 42(6) of the Constitution which provides that a person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention and to acquittal or conviction unless the interests of justice otherwise require.”

This application is to be considered solely under the provisions of the Bail Act, s. 9.

It is clear from the terms of s. 9 that there is a discretion to grant or refuse bail. However, by reading the whole Act and particularly Pt II of the Act, the spirit of these provisions is to grant bail more readily. This is not the same as saying, bail should be granted as a matter of right. This view is consistent with the criteria set out under the terms of s. 9. This section does not set out the criteria for granting bail but as to its refusal. One starts with the spirit of the Act that bail should be granted more readily. That construction applies to all offences including wilful murder and treason. While s. 42(6) of the Constitution does not apply to wilful murder, the spirit of s. 42(6) which is built into Pt II of the Act applies to wilful murder. If the legislature intended other criteria for treason and wilful murder under the Act it would have said so.

The exercise of the discretion to grant bail should be used readily unless any one of the matters under s. 9 is established. The Act treats each consideration as equal. One is not to be considered as less serious than the other for the purposes of refusing bail. That is the effect of s. 9. However, s. 9(1) provides for refusal of bail on “one or more” of these considerations. This envisages a case where objection to bail may be taken on more than one of these considerations. I am of the opinion that when one of these considerations is established, the court should exercise its discretion to refuse bail. This is reasonable because one starts with the premise that bail should be given readily. The considerations set out in this provision were the grounds upon which a court could exercise its discretion to refuse bail prior to 1977. The Parliament has codified these considerations in the Bail Act and the court can only refuse bail on the considerations set out under s. 9. The Parliament has stated exhaustively the grounds upon which bail should be refused. See the suggestion by Wilson J to the legislature to add a further consideration: Re Samir Taleb Abdullah Jaber Anabtawi [1980] P.N.G.L.R. 195 at 197.

It is possible to argue that in cases other than treason and wilful murder s. 42(6) may give a bail authority wide discretion to go outside these considerations and refuse bail on other grounds. This may be so by a construction of the words “... unless the interests of justice otherwise require”. I leave this question open.

“First, an accused who is charged with wilful murder is not entitled to bail as of right. And the discretion to grant him bail should never be readily exercised in his favour unless exceptional circumstances are shown that should warrant him being granted bail. And it is my opinion that the courts’ discretion in this area should be very limited indeed. I find that there are no special or exceptional circumstances at all in his case.”

With respect to the learned judge, whilst it is true that a person charged with wilful murder has no constitutional right to bail under s. 42(6) of the Constitution, the purpose of Pt II of the Bail Act 1977 is to grant bail more readily to all persons who are arrested or detained for an offence. (Section 1 of the Bail Act 1977.) I would reject the proposition that in cases of wilful murder the discretion to grant bail should never be readily exercised in his favour unless exceptional circumstances are shown. This is a principle which is contrary and alien to the criteria set out under s. 9 of the Bail Act 1977 and should not be introduced.

The onus then is on the prosecution to satisfy the court on any of the considerations under s. 9 of the Bail Act. If this onus is not discharged, then I should not refuse bail.

In the instant case, the State Prosecutor initially did not offer any objection to the bail application. However, upon further questioning from the court, it was revealed that one of the alleged acts constituting the offence was a serious assault, namely, assault by the accused on the head of the deceased by a stick. This fact is not disputed. This is a consideration upon which bail should be refused under s. 9(1)(c)(i) of the Bail Act 1977. I am satisfied on reasonable grounds of this fact and therefore I should exercise my discretion to refuse bail. I refuse bail.

ANDREW J: This application for bail under s. 13(2) of the Bail Act 1977 was heard by the court on 24 May 1983. After hearing argument the court refused bail and stated that it would publish its reasons later. It now does so.

The applicant who is of British nationality was charged with the wilful murder of his wife, also of British nationality. He was committed for trial upon that charge on 20 May 1983, to stand his trial at the next sittings of the National Court in Goroka.

An earlier application for bail was made to the National Court on 22 April at Kundiawa and was refused upon the grounds that an accused who is charged with wilful murder is not entitled to bail as of right and that no special or exceptional circumstances had been shown.

“42(6) A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.”

Because the constitutional entitlement to bail is removed in cases of wilful murder it follows, in my opinion, that the onus shifts to the applicant to establish that he should be entitled to bail. By s. 4 of the Bail Act, bail may only be granted in cases of wilful murder and murder, by the National Court or the Supreme Court.

The Bail Act 1977 purports to abolish certain common law rules relating to bail (although these are not spelt out) and is accordingly a complete code dealing with the grant or refusal of bail: See for example per Kearney DCJ in Re Herman Kagl Diawo [1980] P.N.G.L.R. 148 at 151.

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.

The considerations affecting the grant or refusal of bail prior to conviction or acquittal are those which are contained in s. 9 of the Bail Act. The section is contained in Pt II of the Bail Act and accordingly (and by virtue of s. 3) it gives effect to s. 42(6) of the Constitution.

The question has arisen in the interpretation of s. 9(1) as to whether, if one or all of the criteria for refusing bail is shown, it then follows that bail must be refused.

Everyone (except those charged with wilful murder or treason) has a right to bail which is defeasible only if there are reasonable grounds for believing that one or more of the scheduled exceptions applies or, put in another way, before the discretion to refuse bail arises, the court has to be satisfied that there are substantial grounds for believing that one or more of the events described in s. 9(l)(a), (b), (c), (d), (e), (f) or (g), will happen. It is the existence of substantial grounds for the belief, not the belief itself, which is the crucial factor: See R. v. Slough Justices, Ex parte Duncan and Another (1982) 75 Cr.App.R. 384.

The use of the words in s. 9(1) that the bail authority “shall not refuse bail unless satisfied ...” illustrates that prima facie one is entitled to bail. That is the intent of the Constitution and of the Bail Act. When one or more of the considerations in s. 9(1) is shown to exist then there is a ground for refusing bail. The use of the word “shall” does not mean, in my opinion, that bail must as a matter of course be refused when those matters are proved. To read it that way would be contrary to the whole scheme and intent of the Constitution and the Bail Act. Whether or not bail is refused is a matter of discretion.

That the grant or refusal of bail is discretionary may also be discerned from the other provisions of the Bail Act. By s. 13 one can make successive applications from a magistrate, to the National Court and to the Supreme Court. By s. 9 it is not mandatory that bail be refused if one of the conditions therein is proved because it may be refused for “one or more” of those considerations. If it was automatically refused for one of those reasons there would be no necessity to provide for its refusal for more than one.

In my judgment the use of the word “shall” in s. 9(1) of the Act shows that it can be seen that the bail authority must refuse bail if one or more of the conditions are proved unless the applicant shows cause why his detention in custody is not justified. Such an exercise is always discretionary.

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.

“At common law the rule was that in cases of capital offences bail was only granted if the applicant showed circumstances which were variously described as exceptional and very exceptional: Borsboom (1887) 4 W.N. (N.S.W.) 14; Strong (1935) 52 W.N. (N.S.W.) 179; Lythgoe (1950) St. R. Qd. 5. The reason for the rule was that in cases of capital offences there was a strong inducement to the accused not to stand his trial.”

There is nothing in the terms of the Bail Act to except wilful murder from the categories of bailable offences and bail prior to conviction is to be determined by the National Court or Supreme Court as the case may be, in accordance with s. 3 and s. 4 and the conditions of s. 9 of the Act. There is nothing in s. 9 which refers to special or exceptional circumstances.

In my view the Bail Act provides an exhaustive statement of the manner in which the discretion to grant or refuse bail is to be exercised in relation to wilful murder.

In the present case the alleged act of the applicant obviously falls within s. 9(1)(c) of the Act. The burden is thrown upon him by s. 3 of establishing his entitlement to bail because he is arrested and detained for wilful murder.

In my opinion he has not shown any reasons why he should be entitled to bail and it is not shown that his detention in custody is not justified.

[xix]Infra 134.

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Papua New Guinea Law Reports

Keating v The State [1983] PNGLR 133 (24 May 1983)

Papua New Guinea Law Reports - 1983