Bail hearings in the District Court are short, but they are governed by a detailed statutory test and a settled body of Supreme and National Court authority. A defendant who knows the test can meet the prosecution’s objections point by point.
The grounds for refusal
Where a bail authority is considering the question of granting or refusing bail, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following: (a) the person is unlikely to appear at his trial; (b) the offence was committed while on bail; (c) the alleged act consists of a serious assault, a threat of violence, or having a firearm, imitation firearm, offensive weapon or explosive; (d) the person is likely to commit an indictable offence if not in custody; (e) custody is necessary for the person’s own protection; (f) the person is likely to interfere with witnesses or the informant; (g) the offence involves unrecovered property of substantial value which the person would conceal or deal with; (h) extradition proceedings are pending; (i) the offence involves the possession, importation or exportation of a narcotic drug other than for personal medical use.
(2) The court is not bound by the technical rules of evidence but may act on such information as is available to it.
Each ground is explained in why was my bail refused. The point for a District Court applicant is that the list is what the prosecutor must address; a general submission that the charge is serious is not a ground.
Who must prove what
An applicant for bail is entitled to bail unless the interests of justice otherwise require under section 42(6) of the Constitution, and must not be refused bail unless the State can satisfy the court on reasonable grounds as to one or other of the matters set out in section 9.
The Magistrates’ Manual states the same rule for the District Court: the onus is on the prosecution, and the defendant need only make the application. Because section 9(2) relaxes the rules of evidence, the prosecutor may hand up a police statement of objection; the defendant may answer with his own information about residence, employment, family and prior compliance.
What “likely” means
The word “likely” in the phrase “likely to interfere with witnesses” means likely in the sense of a tendency or real possibility; it does not mean “more likely than not”, “probably” or “very likely”.
In Kysely bail was refused because the applicant had already tried to interfere with a State witness. In Re Anabtawi [1980] PNGLR 195 Wilson J applied the same reading to “unlikely to appear”: the prosecution must show a tendency to abscond or a real possibility of non-appearance. The Manual advises magistrates to apply that meaning throughout section 9(1).
The residual discretion
In Re Fred Keating [1983] PNGLR 133 Kidu CJ and Andrew J held that section 9 does not exhaust the considerations relevant to the interests of justice under section 42(6): bail may be refused, for example, to a known habitual criminal although section 9 does not say so, and, conversely, proof of a section 9 ground makes refusal a matter of discretion rather than a duty. In The State v Beko Job Paul [1986] PNGLR 97 Wilson J refused bail to a youth charged with stealing firearms from a police armoury, holding that the nature of the offence itself may be a sufficient factor in the interests of justice. The Manual treats these as authority for a discretion in both directions, to be used rarely and with reasons tied to the interests of justice.
Conditions and guarantors
If bail is granted the magistrate decides the conditions. Section 18 allows conditions, but requires the bail authority to be satisfied that they will not cause undue interference with the person’s domestic life, work, political freedom or finances, and are not unreasonable. Section 19 allows up to two guarantors, but only where the magistrate is of the opinion that the person will not otherwise appear or comply, and a guarantor may be required to lodge or undertake to pay a sum fixed with regard to his means. The recognizance under section 107 of the District Courts Act is the instrument that records it. See bail money, guarantors and conditions.
Reasons and the record
Where bail is refused the bail authority shall at that time give the reasons in writing to the person in custody or his legal representative, and shall ensure the reasons are recorded in the court papers.
The written reasons are what the defendant takes to the National Court under section 13(3) on a further application. A refusal without reasons is itself a ground for the judge to look at the matter afresh. See if the magistrate refuses bail.
After conviction
| Stage | Rule |
|---|---|
| Convicted, sentence adjourned | Bail Act s 10: in the court’s discretion |
| Appeal lodged | Bail Act s 11; District Courts Act s 223: discretion; the Manual notes that exceptional circumstances are required, and cites Smedley, Jaminan and Yaki as cases where the desire to instruct counsel or attend to political duties was not enough |
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. 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.