Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

Kaiwi v State [2023] PGSC 14; SC2359 (27 February 2023)

SC2359

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APP NO. 17 OF 2022

BHOSIP KAIWI
Applicant

-V-

THE STATE
Respondent

Waigani: Hartshorn J, Kariko J and Bona J
2023: 20^th & 27^th February

PRACTICE & PROCEDURE – bail application – on adjournment during trial – charge of murder – bail refused by the National Court – fresh application – principles - considerations - whether continued detention unjustified

The applicant who is on trial on a charge of murder, applied to the Supreme Court for bail after the trial was adjourned and pending its continuation. He previously made two applications in the National Court which were both refused. The applicant argued that because of his detention, both his business and family have suffered. Further, the applicant claimed his trial was unreasonably delayed.

Held:

(1) 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 to be heard by the full court.
(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) s 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
Theo Yausase v The State (2011) SC1112
Francis Walami v The State (2021) SC2182
Kange v The State (2016) SC1530
Fred Keating v The State [1983] PNGLR 133

Legislation:

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

Counsel:

The applicant in person
Ms T Aihi, for the Respondent

APPLICATION

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

27^th February, 2023

1. BY THE COURT: The applicant is currently on trial on a charge of murder contrary to s 300 of the Criminal Code (Chapter 262).
   
2. It is claimed the hearing was adjourned in June 2022 after the calling of one witness and a ruling reserved regarding a voir dire.
   
3. The applicant previously made two applications for bail in the National Court which were refused, and he now applies to this court.
   
4. The application is opposed by the State.
   

RELEVANT PRINCIPLES

5. Persons charged with offences other than treason and wilful murder are guaranteed bail by s 42(6) of the Constitution unless the interests of justice require.
   
6. 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.
   
7. Bail may be applied for at any stage of a proceeding: s 6(1) of the Bail Act.
   
8. Where bail is refused by the National Court, a further application may be made to the Supreme Court pursuant to s 13(2) of the Bail Act which shall be heard by the full court: Bernard Uriap v The State (2011) SC1108.
   
9. Such an application is a fresh application and is neither an appeal from nor a review of the National Court decision: Theo Yausase v The State (2011) SC1112 and Francis Walami v The State (2021) SC2182. Neither does it require the applicant to demonstrate a change of circumstances since the previous application. Furthermore, the applicant may raise the same grounds raised previously or rely on new grounds: Kange v The State (2016) SC1530.
   
10. Section 9(1) of the Bail Act lists several circumstances where a bail authority shall not refuse bail unless satisfied that at least one of those circumstances 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.
    
11. 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.
    
12. We adopt and are guided by these principles.
    

GROUNDS FOR THE APPLICATION

13. While both parties have approached this application as one based on “change of circumstances”, it is properly an application under s 13(2) of the Bail Act. It is a fresh application for bail and the matters submitted as “change of circumstances” will only be regarded as part of the grounds for the application.
    
14. The applicant does not challenge the s 9(1) considerations upon which bail was previously refused and for which considerations the State still opposes the grant of bail, namely that:
    
    • (1) the offence the applicant is charged with consists of a serious assault, and
    • (2) there is a likelihood the applicant will interfere with prosecution witnesses.
      
15. On the material before us, we are satisfied these circumstances continue to exist.
    
16. Notwithstanding, the applicant contends that his continued detention is unjustified for reasons that:
    
    • (1) The management and operations of his business have been adversely impacted.
    • (2) The welfare of his young children has suffered.
    • (3) The delay in his trial is a breach of his constitutional right to a trial within a reasonable time.
      

TRIAL

17. We first address the third ground.
    
18. The applicant submits that his constitutional right to be tried within a reasonable time under s 37(3) of the Constitution has been breached as the case was adjourned in June and he does not know when it is to resume.
    
19. Upon questions by the court, the applicant clarified that the adjournment of his trial was due to a ruling on a voir dire, but the decision was delivered on 6 December 2022. Counsel for the State also advised that the trial judge had since issued chamber directions setting 27 February 2023 for continuation of the trial.
    
20. Given this information, we find no merit in the third ground.
    

BUSINESS

21. As to the first ground, the applicant states in his affidavit in support that:
    
    • (1) he started his business known as MBEE Transport in 2014; and
    • (2) proper management of the company, including settlement of bills, has suffered despite the efforts by family members in his absence.
      
22. An affidavit by Umin Kupul who is employed in Operations with MBEE Transport was also tendered in support of the application. The deponent states that the business is not being properly managed with parts and accessories (we assume of vehicles) going missing; employees being late for work or being absent from work; and poor performance. The deponent further states that the business would better operate if the applicant was able to personally attend to its management.
    
23. 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. In this regard we note Theo Yasause v The State (supra). Further, we consider the situation in that case to be similar to the present in that “the nature and extent of the adverse effects are vague and unquantified”.
    
24. We are not satisfied the circumstances of the applicant’s business warrants him being allowed bail.
    

FAMILY

25. In relation to the welfare of his two young children, aged 5 and 3 years, the applicant expresses his concern that he is unable to provide for their needs and he has not been able to communicate with them.
    
26. A line of case authorities, including Theo Yasause v The State (supra), has stressed that the fact that an applicant’s family stand to suffer from being cared and provide for while the applicant is in custody, is simply a natural consequence and is also not a proper ground for the grant of bail.
    
27. The children are presently living with and under the care of Josephine Feves, the applicant’s mother. She has deposed in an affidavit in support that the applicant’s incarceration has affected the welfare of the children because he is unable to attend to their needs.
    
28. The witness does not suggest that she or any other relevant family member cannot adequately provide for the children.
    
29. With nothing more to support the ground, we are not satisfied the welfare of the applicant’s children justifies the grant of bail.
    

CONCLUSION

30. While the concerns of the applicant regarding his business and family are relevant and legitimate, he has not shown in all the circumstances that his continued detention is not justified, and we accordingly refuse his application.
    

ORDER

31. The Court orders that the application for bail filed 22 December 2022 is refused.

__________________________________________________________
Applicant in person
The Public Prosecutor: Lawyers for the Respondent