Why Was My Bail Refused? The Ten Grounds in Section 9 of the Bail Act

Bail in Papua New Guinea starts from a right, not a request. Section 42(6) of the Constitution entitles a person arrested or detained for an offence to bail “at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.”

So when bail is refused, the question is not why should you get bail — it is what justified taking the right away. Section 9 of the Bail Act (Chapter 340) gives the complete answer.

The rule in section 9(1)

Section 9(1) is drafted as a prohibition. A bail authority considering bail “shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations.”

That wording does two things: it puts the onus on the party opposing bail to raise a ground, and it closes the list. A magistrate cannot refuse bail because the offence sounds serious, because the community is angry, or because police are still investigating — unless one of the ten grounds is made out on reasonable grounds.

The ten grounds

1. Flight risk — the person is unlikely to appear at his trial if granted bail.
2. Offending on bail — the offence charged was committed while the person was on bail.
3. Violence or weapons — the alleged act consists of (i) a serious assault, (ii) a threat of violence to another person, or (iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive.
4. Risk of further offending — the person is likely to commit an indictable offence if not in custody.
5. Own protection — it is necessary for the person’s own protection that he be in custody.
6. Interference — the person is likely to interfere with witnesses or with the person who instituted the proceedings.
7. Unrecovered property — the 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 it.
8. Extradition — extradition proceedings under the Extradition Act are in progress or pending.
9. Narcotics — the offence involves possession, importation or exportation of a narcotic drug, other than for the person’s own medical use under prescription.
10. Breach of parole — the alleged offence is one of breach of parole.

Ground 3 catches the most people. Note the wording: “having or possessing” a firearm or offensive weapon. It does not have to have been used.

The leading case: Fred Keating

Many people are told that once a section 9 ground is proved, bail is finished. That is not the law.

In Fred Keating v The State [1983] PNGLR 133, the Supreme Court (Kidu CJ, Kapi DCJ and Andrew J) held that the grant or refusal of bail under section 9 is discretionary. A section 9(1) consideration does not automatically defeat bail; it shifts the burden. Once one or more is established, bail should be refused “unless the applicant shows cause why his detention in custody is not justified.” The Supreme Court confirmed the same discretion in Felix Kange v The State (2016) SC1530, holding that even where section 9(1) circumstances exist the court is not obliged to refuse bail.

What “showing cause” actually takes

Most applications fail for a practical reason rather than a legal one: assertions without evidence.

In Philip Maru and Arua Oa v The State (2001) N2045, claims of innocence and family hardship were rejected as unsupported by details or documents. In Floyd Kohai v The State (2010) N4071, the applicant said his family depended on him but produced no specific instances of suffering, no medical report and no welfare report. The court called the material vague and refused bail.

If detention is causing real harm, put it before the court in a form it can act on:

• a medical report for a sick dependant or the applicant;
• a welfare or village court report on conditions at home;
• employment records showing the job that will be lost;
• an affidavit from a credible, neutral guarantor with means and standing;
• a fixed address and a realistic reporting arrangement.

Maru and Arua Oa also supports a fairness point worth raising: co-accused should generally be given similar treatment.

Reasons must be given in writing

Under section 16, where bail is refused the bail authority must at that time give its reasons in writing to the person in custody or his legal representative, and record them — in the register of arrests if police refused, or in the court papers if a court did.