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Lester v The State [2001] PGNC 148; N2044 (22 January 2001)

N2044

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

M. P. NO. 856 of 2000

STEVE LESTER

Applicant

-V-

THE STATE

Respondent

LAE: KANDAKASI, J.
2001: 18 and 22 JANUARY

CRIMINAL LAW – Bail application – Application by applicant in person – Grounds or reasons for bail not substantiated by evidence – Strict rules of evidence do not apply – Long list of bench warrants following breach of bail terms considered - Court need to consider interest of society to deal with offenders according to law once before the court – Stricter and higher bail terms may now have to be imposed - Fresh application for bail may be made

Cases cited:

The Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State (1997) N1641
The State v. Beko Job Paul [1986] PNGLR 97

Re Fred Keating [1983] PNGLR 133

Counsel:

Applicant in Person with Mr. Mwawesi assisting
J. Pambel for the State

22 January, 2001

KANDAKASI, J: This was an application for bail under s. 42(6) of the Constitution and s. 6 of the Bail Act (Chp.340) by the applicant himself with very limited assistance from Mr. Mwawesi from the public Solicitors Office as a friend of the Court. I heard the application and refused it on the 18th of January 2000. At that time, I gave my reasons in brief. Since I am required by s. 16 of the Bail Act to put my reasons for refusing bail in writing, this formal reasons for judgment has been necessitated.

Bail is an entitlement under s. 42(6) of the Constitution for all persons arrested and charged with an offence, except for treason and wilful murder. That provision reads:

(6) A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

(emphasis mine)

Clearly from the words highlighted, the right to bail is not therefore automatic. There still has to be a determination by the bail authority on the question of whether or not "the interest of justice otherwise requires" a refusal of bail. Mr. Justice Akuram as he then was in The Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State (1997) N1641, in respect of bail applications in cases other than wilful murder and treason said:

I hold the view that s. 9 of the Bail Act 1977 does not contain all considerations that are relevant as to whether bail should be refused "in the interests of justice". Section 42 (6) of the Constitution does not say that the phrase "interests of justice" may be defined by an Act. There are two reasons why the phrase must be given a very wide meaning and application:

(a) It says "interests" - ie. the plural of the word "interest" is used; and
(b) Section sch. 1.5 (2) says that "All provisions of, and all words, expressions and propositions in, a Constitutional law shall be given their fair and liberal meaning".

"Justice" is a two-edged sword and cannot possibly be confined to mean those considerations enumerated in s. 9 (1) of the Bail Act 1977. For instance, in my opinion, it would be in the interests of justice to refuse bail to a person known to be a habitual criminal, although s. 9 (1) does not say so.

I respectfully accept and adopt the interpretation given. I consider that accords well with the accepted position at law that, in order to do justice, the interest of all concerned with whatever the matter is before the courts should be taken into account before arriving at a decision. In respect of bail applications, the interest of the applicant to be granted bail and the communities interest to see an offender once brought before the courts being dealt with according to law as expeditiously and in a less expensive way as much as possible have to be taken into account to do justice. That as of necessity, requires the courts or a bail authority to consider all relevant factors and considerations that may affect the issue of whether or not the interest of justice requires a grant of bail.

Earlier on, in The State v. Beko Job Paul [1986] PNGLR 97, Wilson J., at page 99 in relation to a break and enter charge with intend to steal police arms said:

However, I consider that the offence the nature of which involves the clear intent to secure arms negates that presumption and that the interests of justice are not served by failing to give special significance to this type of crime and the consequences that flow, or could flow from it. On the basis of this reasoning I refuse bail, there being nothing in the application which convinces me that the continued detention is not justified.

From the above, it should be clear that section 42(6) of the Constitution whilst granting all persons arrested and charged with an offence a right to bail, it also vests in a bail authority a discretion to decide whether or not to grant bail. The Supreme Court in Re Fred Keating [1983] PNGLR 133 per Kapi DCJ., at page138 in respect of that discretion said this:

The exercise of the discretion to grant bail should be used readily unless any one of the matters under s.9 is established. The Act treats each consideration as equal. One is not to be considered as less serious than the other for the purposes of refusing bail. That is the effect of s.9. However s.9(1) provides for refusal of bail on "one or more" of these considerations. This envisages a case where objection to bail may be taken on more than one of these considerations. I am of the opinion that when one of these considerations is established, the court should exercise its discretion to refuse bail.

As can be seen from the above, there can now be no dispute that the Bail Act, s. 9 in particular sets out the circumstances in which bail may be refused. The existence of one or more of the circumstances specified by s.9 of the Bail Act may form the basis to refuse bail in the exercise of the discretion vested in the bail authority. At the same, I remind myself that the existence of any one or more of the factors under s. 9 of the Bail Act, do not automatically operate against the grant of bail. It only imposes a burden on the applicant to show that his detention in custody is not justified and that the interest of justice requires his release. In Re Fred Keating (supra) the Supreme Court per Andrew J 140 stated in my view the correct legal position in these terms:

The use of the words in s. 9(1) that the bail authority "shall not refuse bail unless satisfied ..." illustrates that prima facie one is entitled to bail. That is the intent of the Constitution and of the Bail Act. When one or more of the considerations in s. 9(1) is shown to exist then there is a ground for refusing bail. The use of the word "shall" does not mean, in my opinion, that bail must as a matter of course be refused when those matters are proved. To read it that way would be contrary to the whole scheme and intent of the Constitution and the Bail Act. Whether or not bail is refused is a matter of discretion.

That the grant or refusal of bail is discretionary may also be discerned from the other provisions of the Bail Act. By s. 13 one can make successive applications from a magistrate, to the National Court and to the Supreme Court. By s. 9 it is not mandatory that bail be refused if one of the conditions therein is proved because it may be refused for "one or more" of those considerations. If it was automatically refused for one of those reasons there would be no necessity to provide for its refusal for more than one.

In my judgment the use of the word "shall" in s. 9(1) of the Act shows that it can be seen that the bail authority must refuse bail if one or more of the conditions are proved unless the applicant shows cause why his detention in custody is not justified. Such an exercise is always discretionary.

Before proceeding to specifically deal with the present case, one final point has to be made concerning the factors that may prevent a grant of bail. As was stated by Akuram J., in The Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State (supra) and Wilson J., in The State v. Beko Job Pau (supra) the list of circumstances under s. 9 of the Bail Act do not necessarily limit the factors a bail authority can take into account to decide whether or not to grant bail. Other factors may be taken into account in order to determine what does "the interest of justice otherwise requires". In other words, bail authorities should not proceed to grant bails as a matter of course. Instead as already stated above, they should carefully consider the interest of the applicant to be left out on bail and the interest of the society to have offenders dealt with according to law once brought before the Courts in a manner that is prompt, effective and less expensive. This may involve the bail authority taking into account all of the factors under s. 9 of the Bail Act and such other factors the bail authority considers appropriate before deciding whether or not to grant bail.

In the present case the applicant advanced the following grounds or reasons for applying for bail:

1. He is not a criminal and he did not commit this crime;
2. He has never been in lawful custody before and he is now put amongst known criminals;
3. He wishes to continue his studies with the Bulolo University College this year; and
4. Buimo CIS, where he is currently being help is over crowded.
   

At the time of the hearing, I asked the applicant to take the court through his application. He only repeated his grounds and or reasons without any elaboration. The only exception to that was in respect of the first ground. In respect of that, he said he is not a criminal and he does not know why he is being detained in custody. That was clearly despite his full knowledge that he was charged with armed robbery and was undergoing his committal hearing. The material on file seemed to suggest that he committed the offence due to peer pressure. I gathered from these that, here was a person who had full knowledge of the reasons for being in custody and yet was prepared to deny having any knowledge of the reasons. That caused some doubt in my mind as to whether he was a trustworthy person and one who would appreciate and faithfully meet any bail terms that may be imposed, in the event bail was granted.

The applicant did not furnished any evidence in support of his application. The only material constituting his application are his bail application form, a letter dated 2nd January 2001, from his father, a letter dated 6th January 2001 from a Pastor Mataio Roka of the SDA Mission and a further letter dated 4th January 2001 from a Rusell Narokas of the Lae Adventist School. None of these letters substantiate any of the reasons advanced for seeking bail. They only point out that the applicant is of the SDA church and as no prior problems with the law. If this was the case, I would have thought that the applicant would have been up front and be truthful as to the reasons for his incarceration but he chose to deny having any knowledge of that, when he had every reason to know, by virtue of being arrested by police and being charged and undergoing his committal hearings.

I note that, it is not too difficult for an applicant for bail to adduce whatever evidence he considers appropriate in support of his application since the technical rules of evidence do not apply by virtue of s. 9(2) of the Bail Act. However, for reasons only know to the applicant, he did not produce any evidence.

The State opposed the application on the basis of s.9 (1) (c) of the Bail Act. Mr. Pambel argued that the offence with which the applicant was charge with was a serious one, which involved the use of firearms. The applicant was facing possibly two charges of armed robbery under s. 386 of the Criminal Code Act (Chp. 262), going by the statement in support of the charge against the applicant which was in evidence. His committal proceedings are still on foot. This in my view, forms the basis, in line with cases like that of The State v. Beko Job Paul (supra) and the Supreme Court decision in Re Fred Keating (supra) to refuse bail unless, the applicant is able to show by appropriate evidence that his continued detention in custody is not justified and is against the interest of justice.

The applicant therefore, had the burden to show and convince this Court that his continued detention in custody is not justified and the interest of justice requires his release on bail. If the grounds relied on for bail by the applicant was intended to discharge that burden, I have two difficulties. First, there is no evidence whatsoever in any form to prove their existence. Secondly, I fail to see how all or any of them could be regarded has a factor or factors showing his continued detention in custody is not justified and that it is in the interest of justice that he should be granted bail.

I also note with an appreciation of the provisions of s. 9 (2) of the Bail Act that, there is no credible evidence to show that the applicant if granted bail, will meet whatever terms may be imposed for his bail. I consider this very important because of the long list of outstanding bench warrants adding to almost 300, most of who appeared to have jumped bail. This calls for more care and caution to be exercised before acceding to an application for bail. In my view, a bail authority should first be satisfied that as a matter of fact the applicant if granted bail will faithfully meet any terms that may be attached to it including his appearing in court to be further dealt with in relation to the charge against him until excused by the Court. It would defeat the whole purpose of law enforcement efforts of bringing offenders to the Courts to be dealt with according to law if bails are granted without any certainty of the offenders answering bail and therefore continue to submit to the jurisdiction of the Courts to be further dealt with, given the number of people breaching bail conditions.

I do not believe that, it was intended that bail should be granted without regard to the question of whether or not the applicant for bail will ever answer bail until excused by the Court in the due course of time and process. Indeed, s. 9 of the Bail Act does have provisions relating to that issue. The practice of calling for guarantors and people giving guarantees and undertakings to ensure bail conditions being met seem is in line with that. Yet those who have been giving such guarantees and undertakings have not been serious with their undertakings and or guarantees perhaps because of the penalty or the consequences they stand to face appear not to be serious. It is high time now for cash bails and sureties to be increased upward to the thousands to give some seriousness and importance to the need to meet bail conditions. If most other jurisdictions impose such higher conditions, I see no reason why the level of cash bails and sureties should not be increased in our jurisdiction to either eradicate or minimized the number of bail jumpers.

I do appreciate that some may argue that imposing such terms may in effect amount to a refusal of bail because of inability of offenders to raise the amounts required and therefore a breach of the Constitutional right to bail. Such an argument has to be view in the overall interest of the society and serious negative impacts crime in general is having on our society. One should also need to consider the large number of people breaching bail terms after the police have done their best in apprehending offenders and bringing them before the courts. Granting bails without any regard to the difficulties and expenses the society through the police go through to bring offenders to the Courts would amount to injustice to society for the sake of an offender. The courts are required to administer justice and it behoves the courts to consider and take such issues into account before granting bails in the interest of justice not only from the perspective of an offender but also the society, which are not necessarily the same.

In the case before me, I found that no evidence in any form and manner was present to substantiate any of the grounds the applicant advanced in support of his application. He also failed to show in any way his continued detention in custody was not justified. On the information presented, the applicant was a member of an armed gang, which was involved, in two separate robberies. These robberies put at risk the lives of a number of people. A quick perusal of the outstanding bench warrants list shows a large number of them are armed robbers. There is no evidence in any form whatsoever to show that the applicant will faithfully meet all or any terms that may be imposed for his bail. In all the circumstances therefore, I decided to refuse the application.

At the same time, I left it open for the applicant to make a fresh application if he wished especially in light of his claim that he needs to continue his studies with the Bulolo University College. I pointed it out to him that if he was making use of that, he should ensure to come with the appropriate evidence. I ventured into that in the light of the fact that he was not legally represented and he appeared not to appreciate the relevant principles governing bail and the whole criminal process. Of course, if he chooses to re-apply it has to be in line with section 13 of the Bail Act.
_____________________________________________________________________
Applicant in person
Lawyer for the State: Public Prosecutor.