Bail Refused? How to Make Another Bail Application in PNG

A refusal of bail is not the end of the road. The Bail Act (Chapter 340) is unusually generous on this point: it builds a right to go again, and it does not make you wait.

Section 13: the right to apply again, immediately

Section 13(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.

Section 13(2) — where a person is refused bail by a Judge of the National Court, he is entitled to apply, again immediately if he wishes, to the Supreme Court.

Section 13(4) puts it beyond argument: an application may be made under subsection (1) or (2) whether or not bail was refused under the Bail Act or any other law, and whether or not the refusal followed a formal application.

Two things follow.

First, this is not an appeal. In Felix Kange v The State (2016) SC1530, the Supreme Court confirmed that a section 13(2) application is a fresh application. You need not prove the first court was wrong, nor show that circumstances have changed. The new court considers the question afresh.

Second, you are not forced straight up the ladder. In Justin Parker v The State (2015) N6191, the National Court held that a person refused bail by one National Court judge may make a further application in the National Court — before the same or a different judge — rather than being obliged to go immediately to the Supreme Court. That sits comfortably with section 6(1), which allows an application “at any time after a person has been arrested or detained or at any stage of a proceeding.”

The one document you must have

Section 13(3) requires the applicant to produce a copy of the reasons given under section 16. Section 16 obliges the bail authority to give its reasons for refusing bail in writing, at that time, and to record them.

How a National Court bail application is run

Since 1 November 2021, National Court bail applications have been governed by the Bail Rules 2021:

• Form 1 — Bail Application. One form covers every situation: before committal, after committal, after conviction, and pending appeal.
• Supporting material. Affidavits and documents are optional unless the Court directs otherwise — but as Floyd Kohai v The State (2010) N4071 shows, an application with no evidence behind it usually fails.
• Form 3 — the State’s position. The Public Prosecutor must indicate it within 72 hours.
• Service need not be personal; the “quickest available means” suffices, including email to addresses published in the National Gazette.
• Hearing date. The Registrar must fix one no more than four days after filing, and adjournments must be to a definite date.
• No lawyer? The Registrar must help an unrepresented applicant complete the forms.
• Chambers. A judge may deal with the application in chambers where the State consents, or in exceptional urgent circumstances.

The Rules bind the National Court only, not the Supreme or District Courts unless expressly adopted.

Making the second application stronger

Use the written reasons as a checklist, and answer each finding with material rather than argument:

• Flight risk — proof of a fixed address, employment, and a guarantor of standing with means.
• Interference with witnesses — propose conditions: residence away from the complainant’s area, non-contact terms, reporting to a named police station.
• Risk of further offending — supervision, family undertakings, a realistic reporting regime.
• Hardship — the medical, welfare or school reports that were missing last time.
• A co-accused got bail — say so; Philip Maru and Arua Oa v The State (2001) N2045 supports consistent treatment.

Remember the framework from Fred Keating v The State [1983] PNGLR 133: once a section 9 ground is established, bail should be refused “unless the applicant shows cause why his detention in custody is not justified.” The second application is your chance to show that cause properly.

Two related applications

• Variation (section 20). Either party may apply at any time, on reasonable notice, to a court of jurisdiction not lower than the court that granted bail.
• Leaving the country (section 23). For urgent personal reasons or by reason of occupation, a person on bail may apply to the National or Supreme Court to travel. Permission is granted only if the court is satisfied the person will return to Papua New Guinea, and it is endorsed on the bail certificate.