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Tau v The State [1999] PGNC 97; N1937 (10 November 1999)

Unreported National Court Decisions

N1937

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP. 562 OF 1999
HEISI TAU
V
THE STATE

Lae

Sakora J
3 November 1999
10 November 1999

Counsel

Mr B Ovia for the Applicant

Mr M Peter for the State

10 November 1999

SAKORA J: You have been remanded in custody at the Buimo Corrective Institution because you have been charged with the commission of two very serious offences: armed robbery and rape. The Lae District Court committed you on 27 September this year to stand trial before the National Court on these two charges.

This application for bail is made pursuant to s 8 of the Bail Act, which reads as follows:

8. Bail After Committa forl rial or Sentence

Subject to Section 4, where a court commits a person who is in custody for trr sen in ttionart, turt sconsider and accordingly grant or refuse fuse bail bail to thto that peat person rson in acin accordance with Section 9.

Section 4 of the Act provides that a person charged with wilful murder, murder or an offence punishable by death shall not be granted bail except by the National Court or the Supreme Court. A recent amendment to this provision adds to the list an offence involving the use of firearms.

Section 9 of the Act lists various grounds upon which bail can be refused by the bail authority. The supreme law of this land, the Constitution under s 42 (6), entitles you to be granted bail and released from custody to await the trial of the charges against you. But this right or entitlement is not absolute. The right to bail is qualified by law to the extent that the interests of justice may require that bail should not be granted: s 3 Bail Act.

And the interests of justice may involve a consideration of any one or more of the factors or circumstances enumerated under s 9 (1) of the Act. This provision specifically provides that bail shall not be refused unless the bail authority is satisfied on reasonable grounds as to the existence of one or more of those factors or considerations.

In support of your application for bail the following documents have been filed in this Court on your behalf and relied upon:

1. ټ&##160; T60; The affe affidavit of Tau Nancie (your father) sworn 23 September 1999.

2. ҈ & The avhe avit of Geo Yamoa (your brother-in-law) sworn 23 September 1999.

3. &1600;#160;  ffi aviHeasiTau (elf) swor sworn 23 September 1999.

As

As well as perusing these three affidavfidavits, its, I have heard submissions from your lawho hdress vigorouslthe law and the circumstancesances demo demonstranstrated bted by the affidavits. From these would appear the following reasons or grounds for your application:

1. ҈ The fact that you dyou deny any involvement in the commission of these offences.

2. ҈& T60;rep prepare yore your defence as you were “put under pressurthe P Invetion Officerficers on s on four four (4) different occasions to admit to the alleged offences allegedly committed by me.”

3. ټ&##160; Y60; You areu are known to be “a good reasonable young man involving himself in Church activities.....” (ur owher and brother-in-law).

4. The overcrvererowdedowdnhy unhygienic and unhealthy environment of the Buimo Gaol.

5. &#U60; taderg (in youy fath father and yourself) to behave whilst on and nterfith State witnesses.

6.&#>6. &#C60; nuntiith wducaeion tion through the CODE programme.

In his submissions on your behalf your lawyer has emphasised the point that bail is a Constitutional right and that the State must satisfy the Court the existence of factors or considerations other than those under s 9 (1) (c) of the Act. In this he submitted that the likelihood of absconding (or unlikely to appear at the trial) as set out under s 9 (1) (a) must be demonstrated to the satisfaction of the Court by the State. Finally your lawyer submitted that even if any one or more of the factors or considerations under s 9 (1) are present, the Court still has the discretion to grant bail.

The State opposes bail, relying on the facts supporting the allegations in the two charges. These are the facts appearing in the Summary of Facts that your lawyer sought to be tendered into Court, and was tendered. Learned counsel for the State urges the Court to take account of the fact that these two very serious offences, each carrying the maximum penalty of life imprisonment, involved 6 armed men including yourself. It is the State’s allegation that the 6 men were armed with a pistol, home-made gun and bush knives.

They jumped over the security fence, held up the guard and broke into the residence of the husband and wife victims, held them up and stole various items of property. They then raped the wife.

It is the State’s case that these facts demonstrate very serious circumstances. Here were very serious acts of deprivation of liberty after invasion of home and privacy. And in this respect, learned counsel for the State emphasises this seriousness by noting the existence of those factors or considerations listed under s 9 (1) (c) of the Act: that is to say, the alleged acts constituting the two offences for which you are now in custody consisted of:

(i) a serious assault; <)&(ii) usrioreath of siolence to e to other persons; and

(iii)ټ&##160;ng oressinearmsother weapons.

The law is not in d in disputispute as e as to thto the Cone Constitustitutional right or entitlement to bail, and the factors or considerations pertinent in considering grant or refusal of bail. And both learned counsel have correctly referred to these.

The Constitution accords you the right or entitlement to bail as noted above. But as noted similarly, this right may not be extended to or accorded to you if the interests of justice demand that you should not be free in the community while awaiting your trial. And the interests of justice involve, in my opinion, those factors or considerations under s 9 (1) of the Bail Act, considerations such as the seriousness and prevalence of offences. The notion of interests of justice (included in the provisions under s 42 (6) Constitution and s 3 Bail Act) is concerned with the protection of the community, the law-abiding people, from those who offend (or are alleged to have offended) against them until such time as guilt or innocence are fully and finally determined according to law.

It has to be noted here that the Bail Act created a statutory presumption of bail for remand cases. This means that the Court must grant bail unless one of the statutory exceptions applies: e.g., the interests of justice proviso under s 3 and the s 9 (1) factors or considerations.

In my opinion, the inclusion of those exceptions (to the availing of the right or entitlement) was a deliberate legislative act to ensure that interests of justice is accorded due recognition and consideration, and, where appropriate, held to prevail over the individual rights and interests of the accused person. This would suggest that the criminal laws of the country are to be enforced without exception, and equally, and that those who have (or are alleged to have) offended against society or community’s laws and rules are made to realise that they have forfeited their right to live and move around freely.

Whilst I have noted the six (6) reasons for bail that emerge from the three supporting affidavits, only three of these (Nos. 2, 4 and 6) call for quick comments here. You now have the services of a firm of lawyers to prepare your defence at the trial. Thus, you do not need to be on bail for this. As for the overcrowded, unhygienic and unhealthy environment at the Buimo Gaol, this problem is not an isolated one. All prisoners throughout the country suffer from these conditions, arising directly from a continuing lack of political will to adequately fund the operations of the Corrective Institutions Service.

All inmates of the institutions throughout the country suffer because of insufficient funds to house, feed, clothe and attend to the health, social and religious welfare of the inmates. And the direct responsibility for these rests with the Executive Government of the country. Thus, the Bail Act is not intended to be used to solve problems of overcrowding and unhealthy conditions.

Finally, the concerns about disruption to further education because of incarceration, this is a matter properly to be taken up with the prison authorities. This is not, or cannot be, a reason for granting bail.

In the end result, in considering your application I have been satisfied that those factors of interests of justice do exist in the circumstances of your being charged with these two offences. I am thus required to take due account of them. And I have done so.

It is the judgment of this Court that bail should be refused for the reasons given above.

Lawyer for the Applicant: Gamoga & Co. Lawyers

Lawyer for the State: Public Prosecutor