A refusal of bail by a magistrate is not the last word. The Bail Act builds in an immediate second chance before a judge, and the District Courts Act keeps the magistrate’s own door open.
First, the reasons
(1) Where bail is refused the bail authority shall at that time give the reasons in writing for its decision to the person in custody or his legal representative.
(2) The bail authority shall ensure that the reasons are recorded, if a court, in the court papers relating to the charge.
The reasons must identify which section 9 ground the magistrate was satisfied of, or what interest of justice required refusal. A defendant who is not given written reasons should ask the Clerk for them; section 13(3) requires a copy to be produced on the further application, and a judge asked to consider bail afresh will want to know why it was refused below.
Straight to a judge
(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.
(2) Where a person is refused bail by a Judge of the National Court he is entitled to apply, immediately if he so desires, to the Supreme Court.
(3) On such an application the applicant shall produce a copy of the reasons given under Section 16.
(4) The application may be made whether or not bail was refused under this Act or any other law, or on an application.
This is not an appeal; it is a fresh application. The judge considers section 9 and the interests of justice again, and the Supreme Court in Re Diawo [1980] PNGLR 148 dealt with exactly such an application under section 13(2). The procedure in the National Court, including the Bail Rules and the affidavit required, is in bail refused: how to apply again and bail in the National Court. Subsection (4) makes clear that a magistrate’s refusal under section 7, made without any application, also opens the door to a judge.
Back to the magistrate
| Opportunity | Provision |
|---|---|
| Every adjournment of a person in custody before conviction | Bail Act s 7: the Court must consider bail again, whether or not asked |
| Any time before the National Court sitting, after committal | District Courts Act s 105(2): any magistrate may admit to bail |
| A new application at any stage | Bail Act s 6(1) |
Nothing in the Bail Act limits the number of applications, but a magistrate asked again on the same material will usually decline to revisit a colleague’s refusal. The useful second application is one with something new: a surety who has now come forward, an address away from the complainant, a medical certificate, a change in the prosecution’s position, or the passage of time without a trial date. Re Smedley [1978] PNGLR 156 applied the same idea to a renewed application to leave the country: a substantial change of circumstances is what justifies a second look.
If bail was granted on conditions you cannot meet
Bail granted on terms the defendant cannot satisfy is a refusal in practice. Section 18 of the Bail Act forbids conditions that cause undue interference with domestic life or work, cause financial hardship, or are unreasonable, and section 19 forbids requiring guarantors unless the person would not otherwise appear. Section 20 allows either party to apply for a variation of the conditions to a court of jurisdiction not lower than the one that granted bail, on reasonable notice to the other side. A defendant who cannot find the sum fixed for a guarantor, or cannot report daily from a distant village, should apply to vary rather than sit in custody.
If the detention itself is unlawful
Where a complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained, the Court or Judge shall inquire into the complaint and order the person released unless satisfied that the detention is lawful and, in the case of detention under section 42(1)(d), reasonable. This is the route where no magistrate has considered bail at all, where a person is held beyond the section 55 period without a court order, or where a section 4 offence is not in fact charged. See habeas corpus.
If it was the police who refused
A refusal of police bail under section 5 is not a refusal by a magistrate, so section 13 does not apply; the person is instead brought before a magistrate under section 55 of the District Courts Act, who considers bail afresh. Section 25 of the Bail Act gives a civil claim in damages, which may be brought in the District Court within its money limit, against a policeman who wrongfully refuses bail, imposes conditions contrary to section 18, or wrongfully refuses to approve a guarantor, and exemplary damages may be awarded.
Keep the record
Every refusal, and every set of reasons, should be kept. On a later application, and on any complaint about delay, the history of bail decisions is the evidence. Section 16(2) requires the Court to keep it too.
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.