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Aihi v The State [2000] PGNC 69; N2006 (16 November 2000)

N2006

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP No. 402 of 2000

PETER FLYNN AIHI

-v-

THE STATE

WAIGANI: KANDAKASI, J.
2000: 16 November

CRIMINAL LAW – Bail – Applicant charged under s. 386 of the Criminal Code (Ch 262) – Existence of factors under S. 9 of Bail Act (Ch 340) no automatic bar to right to bail – Presumption of innocence and right to bail – Constitution SS. 37 (4) and 42 (6).

CRIMINAL LAW – Evidence – Bail Act (Ch 340) S. 9 (2) - No evidence in support of application by Applicant – Affidavit by Applicant’s lawyer insufficient and unsatisfactory – Bail refused

CASES CITED:
Re Herman Kagl Diawo [1980] PNGLR 148.
Re Bail application, Fred Keating v. The State (1983) SC257
Re Samir Taleb Abdullah Jaber Anabtawi [1980] PNGLR 195
Provincial Government of North Solomons v. Pacific Architecture Pty Ltd [1992] PNGLR 145
Curtain Bros (QLD) Pty Ltd and Kinhill Kramer Pty Ltd v. The State [1993] PNGLR 285
Motor Vehicles Insurance (PNG) Trust v. Viel Kampu (1998) SC587

Counsel:
D. Kari, for the Applicant
A. Wale, for the State

16 November 2000

KANDAKASI, J: This is an application for bail pursuant to SS. 6 an 7 of the Bail Act (Ch 340) and S. 42(6) of the Constitution. The applicant has filed three affidavits in support of his application. They are the affidavits of Doko Kari, lawyer for the Applicant, the applicant’s sister Lesley Aihi and John Harry, a friend of Lesley Aihi. There is no affidavit or other evidence from the Applicant himself. The affidavits of Lesley Aihi and John Harry depose to as possible guarantors, touching very briefly on their respective employment and knowledge of the Applicant and their preparedness to pay bail monies and or surety the court may fix in the event of bail being granted.

An information has been laid against the Applicant for armed robbery under S. 386 of the Criminal Code Act (Ch 262). He has been committed to stand trial in the National Court. The National Court has fixed his case for hearing on the 17th of August 2001. The applicant is currently on remand at Bomana CIS pending his trial.

The allegation against the applicant from the police summary of facts, which is annexure "B1" to Mr. Kari’s affidavit is that, the Applicant in the company of another person armed with a home made shotgun and a toy pistol held up a woman driver at Hohola 1, stole her vehicle and drove off. Not long after, police who happened to be in the area caught the Applicant with the vehicle and later arrested and charged him. At the time of his arrest, he admitted to having committed the offence. However, Mr. Kari says from the bar table that, his client denies that charge and the allegations.

Against that background Mr. Kari in support of his client’s application deposes in his own affidavit in material parts as follows:

2. From instructions and upon perusal of Court depositions, I noted the following:-
   
   1. The Applicant Peter Flynn Aihi is 20 years old single and comes from Waima Village, Kairuku in the Central Province.
      
   2. The Applicant has been charged with a count each of Robbery and Unlawful Use of Motor Vehicle Code Act respectively. Annexed hereto and marked with the letter "A1", and "A2", are true copies of the Information bearing the charges.
      
   4. It was alleged that the Applicant on the 9th of March 2000 at Hohola I held up a Mrs Della Yagabo whilst armed with a homemade shotgun and a toy pistol and stole her motor vehicle worth K20,000.00 and drove away in it. Annexed hereto and marked with letters "B1" are true copies of the Summary of Facts outlining the allegations.
      
   5. The Applicant was arrested charged and is now in remand at the Bomana Correctional Institution.
      

6. At the time of his arrest the Applicant was residing with his sister at Hohola No. 1.
   

3. The following grounds are relied on by the Applicant in seeking bail:-
   
   1. He is a young man who has never been in trouble before and this is his first time to be in custody for any alleged offences.
      
   2. He denies the charges and intends to contest the allegations levelled against him.
      
   100. He undertakes to observe any conditions that might be imposed if bail is granted.
        
4. That Section 9 (1), (e), (g), (h), and (i) of the Bail Act do not apply.
   
5. That if bail is granted the Applicant intend to reside with his sister at Section 21 Allotment 3, Hohola No. 1.
   
6. Should guarantors be required as a conditions of bail if granted, I am instructed that the following persons are nominated as guarantors:-
   
   • (a) LESLEY AIHI (b) JOHN HARRY

Police Headquarters Goodman Fielders International (PNG) Limited

7. In the event that bail is granted the guarantors undertake to ensure they observe all the bail conditions and they pledge K100.00 as surety.
   
8. It is also proposed that a cash amount between K100 and K200 can be raised as cash deposit for the Applicant if bail is granted.
   
9. All the matters deposed herein my affidavit are true and correct in every particular of my knowledge and belief upon instructions.
   

As noted earlier, there is no affidavit or any other evidence from the Applicant himself. Consequently, what Mr. Kari deposes to can hardly be facts or anything of any evidentiary value on which this court can act, except for the copy of the charge and summary of facts annexed to his affidavit which I am prepared to accept having regard to the provisions of S. 9(2) of the Bail Act (Ch 340).

The Supreme Court in Provincial Government of North Solomons v. Pacific Architecture Pty Ltd [1992] PNGLR 145, said this at page 148:

His lawyer has explained why the delay occurred and then annexed the proposed document of defence, but the defence is not verified by an affidavit from an officer of the provincial government as required by the writ of summons. The lawyer for the defendant has merely listed some probable area for argument for a defence, but he has not presented the implications of the statement as set out in defence, which might suggest that there might be an argument on the merits. Further, it is only the lawyer’s belief, not affirmed by an officer of the defendant. The court was entitled to so consider that the application discloses no defence on the merits.

In Curtain Bros (QLD) Pty Ltd and Kinhill Kramer Pty Ltd v. The State [1993] PNGLR 285 at page 293, the Supreme Court on appeal upheld objections to affidavits sworn by lawyers on the basis that what they deposed to were not of any evidentiary value but arguments or submissions. Similarly, the Supreme Court in Motor Vehicles Insurance (PNG) Trust v. Viel Kampu (1998) SC587, upheld on appeal to from the National Court, objections to the National Court proceeding to making a decision for the Respondent on the basis of an affidavit by her lawyer without any affidavit from the Respondent or any other person having direct knowledge and involvement.

Although the above cases dealt with and concerned civil matters, they are relevant, as to the appropriateness of lawyers purporting to do affidavits on behalf of their client’s in place of any affidavit or other evidence from their clients, who have personal knowledge, involvement and interest in the matter in a situation such as this. In most instances, what the lawyers say are not facts but a statement of their belief or what they notice from their instructions. More often than not, they present arguments and or submissions, which are of no evidentiary value. Given that, I have on the first day of my formal sitting in court on the 13th of November 2000, in the context of bail applications, I pointed out to Counsel who were present then that, I will only act upon affidavit or other evidence from applicants for bail and any other person with direct evidence and not solely from lawyers. The reason behind this is that a bail authority needs to be satisfied, inter alia, that the applicant will comply with the terms and or conditions for bail, if granted. Such terms and conditions may be built around the provisions of S. 9 of the Bail Act. Only the applicant has the obligation to comply with any such terms and conditions. Thus only the applicant is the appropriate person to give undertakings or promise to comply with such terms and conditions. In addition to that, persons who are proposing to be the guarantors themselves have to depose to inter alia, their knowledge of the applicant, their ability to ensure compliance of any bail terms that may be imposed and their means, source and ability to pay bail monies and or sureties. The amounts proposed to cover bail and sureties in my view, should reflect the seriousness of the offence and the need to ensure compliance of the terms of bail if it is to be granted. Once evidence of these type is before the court, lawyers could then make submissions or present arguments to the effect that their client will comply with any bail term or condition the bail authority may impose. There is one exception to this. Lawyers, who have personal and direct knowledge as any other witness, are of course not precluded from providing an affidavit but need to be aware of the fact that, they can not be witnesses and counsel at the same time.

At the time of making the above position clear to counsel who were present, I indicated to them and I do continue to appreciate the provisions of S. 9 (2) of the Bail Act, which provides that the strict rules of evidence do not apply. That provision in my view, does not authorise lawyers to swear to affidavits such as the one in the present case. The court must still be placed with credible evidence primarily from the applicant who is asking the bail authority to exercise the discretion vested in him in his favour, having regard to the provisions of S. 9 of the Bail Act.

Mr. Kari was in court when I made the above position known. Then, before he proceeded to make his application, I reminded him of the position I was taking and asked if he was still proceeding with the application. He said he was proceeding has the application has been on foot for a long time. I then proceeded to hear the application and eventually refused the application on the basis that, there was on evidence to support the application and said that I will publish my full reasons in writing. This constitutes my full reasons for refusing the application.

As I said in the case of Steven Haiveta v. The State (13 November 2000) N2002, bail is a Constitutional right and or entitlement under S. 42(6) of the Constitution, which is available "at all times," to use the words of that section. This right or entitlement accords well with the presumption of innocence, which is also recognised and provided for under S. 37 (4) of the Constitution.

The Bail Act therefore, correctly provides inter alia, the circumstances in which bail can not be granted rather then the circumstances in which bail can be granted: See Re Herman Kagl Diawo [1980] PNGLR 148.

Section 9 of the Bail Act sets out the criteria for refusing bail. The Supreme Court in Re Bail application, Fred Keating v. The State (1983) SC257, held that the existence of any of the factors under S. 9 does not automatically operate as a bar to the grant of bail. Instead, the court or the bail authority does have the discretion to decide whether or not to grant bail, having regard to the particular circumstances of each case "in the interest of justice". The court also held that the bail authority could have regard to other factors in addition to the criteria set out under S. 9 to determine what is "in the interest of justice".

In the present case, the Applicant has been committed to stand trial for a charge under S. 386 of the Criminal Code Act (Ch 262). His trial has been fixed for the 17th of August 2001. There is no evidence or indication from the Applicant himself showing non of the criteria under S. 9 of the Bail Act exist and as such he should be granted bail. Further, there is nothing from the Applicant himself showing his preparedness to appear in court for his trial, or that he will not interfere with any State witness whilst on bail, or that he will not commit an indictable offence whilst on bail, or that he was never before been in trouble with the law in terms of any prior conviction and or that he will comply with any bail terms that may be imposed. It was incumbent upon the Applicant to provide some evidence covering these aspects and show his willingness to comply with any bail terms that may be imposed, especially when the State was opposing his application. The affidavit by the Applicant’s lawyer is insufficient, unsatisfactory and is of no evidentiary value. I therefore refused to accept it and act on it.

On the available material the Applicant has been committed to stand trial before the National Court for a charge under S. 386 of the Criminal Code Act (Ch 262). This attracts the application of S. 9(1) (c) of the Bail Act (Ch 340). He was caught almost red handed and he admitted to having committed the offence. He then appears to have changed his story. Lesley Aihi and John Harry who have offered to be the guarantors have not put forward in my view any substantial amount toward bail and any surety, given the seriousness of the offence. Considering this and the absence of any evidence from the Applicant himself to show that none of the other factors under S. 9 of the Bail Act (Ch 340) exists, I do not consider it appropriate that in the exercise of my discretion, bail should be granted. Therefore, I refused the application.
__________________________________________________________

Lawyer for the Applicant: Public Solicitor
Lawyer for the State: Public Prosecutor