In the matter of an Application for Bail Pursuant to Section 42(6) of the Constitution and Section 13(2) of the Bail Act; Bernard Uriap v The State (2011) SC1108

• Jurisdiction: Papua New Guinea
• Judge: Batari & Gabi JJ
• Judgment Date: 01 July 2011
• Citation: (2011) SC1108
• Docket Number: SC APP NO. 07 OF 2010
• Court: Supreme Court
• Year: 2011
• Judgement Number: SC1108

Full Title: 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; Bernard Uriap v The State (2011) SC1108

Supreme Court: Batari & Gabi JJ

Judgment Delivered: 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) SC 998

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...