Bail in Papua New Guinea starts from a constitutional entitlement, not from a discretion.
Constitution section 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.
Where a person to whom subsection (6) applies is refused bail —
(a) the court or person refusing bail shall, on request by the person concerned or his representative, state in writing the reason for the refusal; and
(b) the person or his representative may apply to the Supreme Court or the National Court in a summary manner for his release.
Section 4
A person (a) charged with wilful murder, murder or an offence punishable by death; or (b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or break and enter a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used —
shall not be granted bail except by the National Court or the Supreme Court.
And “firearm” includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile.
Sections 6 to 8
Section 6(1) — an application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.
Section 6(2) — a court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.
Section 7 — on each occasion that it adjourns the proceedings before conviction, the court shall consider and accordingly grant or refuse bail in accordance with section 9.
Section 8 — where a court commits a person who is in custody for trial or sentence in the National Court, it shall consider and accordingly grant or refuse bail.
Section 9(1)
A bail authority shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations —
- that the person in custody is unlikely to appear at his trial if granted bail;
- that the offence with which the person has been charged was committed whilst the person was on bail;
- that the alleged act or any of the alleged acts constituting the offence … consists or consist of — a serious assault; a threat of violence to another person; or having or possessing a firearm, imitation firearm, other offensive weapon or explosive;
- that the person is likely to commit an indictable offence if he is not in custody;
- it is necessary for the person’s own protection for him to be in custody;
- that the person is likely to interfere with witnesses or the person who instituted the proceedings;
- that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;
- that there are, in process or pending, extradition proceedings … against the person in custody;
- that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal, medical use under prescription only of the person in custody.
Section 9(1) is a prohibition on refusal, not a list of conditions for grant. Bail is the position unless one of the nine considerations is made out on reasonable grounds.
That places the practical burden on the party opposing bail to identify which consideration applies and to point to the material supporting it.
Section 9(2): 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.
Note that even where a consideration is made out, the section does not compel refusal — it removes the bar on refusing.
Sections 13 and 16
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.
13(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.
13(3) — the applicant shall produce a copy of the reasons given under Section 16.
13(4) — the application may be made whether or not bail was refused under this Act (including this section) or under any other law, or on an application.
Sections 10, 11 and 17 to 22
Section 10 — where a court convicts a person but adjourns before sentence, it may, in its discretion, grant the person bail. Order 10 Rule 2 of the Criminal Practice Rules 2022 requires the Judge, on a guilty verdict against an accused who had been on bail, to decide after hearing from counsel whether to grant bail pending sentence.
Section 11 — on an appeal against conviction or sentence, the convicting court, a court of equal jurisdiction, or a court of higher jurisdiction may grant bail pending the hearing of the appeal. See appeals.
Sections 14 to 22 and 25 deal with a bail certificate, the fact that a person granted bail need not be present, obligations, conditions, guarantors, variation, revocation, forfeiture of security, and a civil remedy for wrongful refusal to grant bail.
Two further routes exist. An application under section 552 of the Criminal Code Act (Chapter 262) to be brought to trial, which under Order 6 Rule 7 may be made orally or in Form 28 — see pre-trial reviews.
And enforcement of Constitution section 42 itself under section 57 — see complaints from custody.
Sources
- Bail Act (Chapter 340) — ss 3–22, 25
- Constitution — ss 42(6), (7), 57
- Criminal Practice Rules 2022 — O 1 r 3; O 2 r 3; O 6 rr 7–9; O 10 r 2; Forms 11, 28, 30
- Criminal Code Act (Chapter 262) — s 552
The Bail Rules 2021 are not available on PacLII.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.