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State v Moha [2010] PGNC 42; N3997 (25 March 2010)

N3997

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 748 OF 2009

In the matter of an Application for Revocation Bail
pursuant to Section 21 of the Bail Act Ch. 340

BETWEEN:

THE STATE
Applicant

AND:

LANCE MOHA
Respondent

Waigani: Kariko J
2010: 22 & 25 March

CRIMINAL LAW – PRACTICE AND PROCEDURE – application for revocation of bail – section 21 Bail Act – obligations of bail – what constitutes reasonable grounds for revoking bail - grounds for forfeiture of cash bail - obligation of guarantors – grounds for forfeiture of security by guarantor.

Cases cited:

The State v Sogavo Momoto Aupe (2001) N2072.

Counsels:

L Wawun, for the Applicant
J Mesa, for the Respondent

25 March, 2010

1. KARIKO J: On 25 March 2010, I handed down my decision and indicated I would publish my full reasons soon, and I do so now. In this judgement, unless otherwise stated, the statutory provisions refer to provisions of the Bail Act.
   

Background

2. The respondent is awaiting trial on a charge under section 519 of the Criminal Code (being an accessory after the fact to a crime). On 17 December 2009, I granted him bail on conditions, and ordered as follows:

1. Application for bail is granted.
   
2. Bail is granted to the applicant subject to the following conditions:
   
   • (a) He pays cash bail of K500.
     
   • (b) Pastor Brian Walters to act as his guarantor and shall pay the sum of K300 cash surety.
     
   • (c) Rachael Kapu to act as his guarantor and shall pay the sum of K500 cash surety.
     
   • (d) He shall report to the National Court Registry at Waigani every Monday between the hours of 8.00 am and 4.00 pm beginning Monday 21 December 2009 until his case is fully determined or bail is revoked, whichever comes first.
     
   • (e) He shall not approach or interfere with any State witnesses.
     
   • (f) He shall not leave the National Capital District without leave of the National Court.
     
   • (g) He shall appear at the sittings of the National Court when required to do so.
     
   • (h) He shall reside with his mother at her home at Section 227 Allotment 163, Tokarara, National Capital District.
     
3. The respondent was released on bail and on 25 February 2010, was arrested for being in possession of live ammunition, and charged under section 65A of the Firearms Act. He was subsequently convicted by the District Court on 1 March 2010 and sentenced to 6 months imprisonment.
   

Application for revocation of bail

4. The State makes application under section 21 for a revocation of the bail granted to the respondent by this court. This section states the court may revoke bail if there are "reasonable grounds" to do so. I refer to the relevant provisions under that section:
   

21. Revocation of bail.

(1) Where it is alleged that there are reasonable grounds for revoking bail granted to a person and the person appears or is brought before a court, the court shall consider whether the bail should be revoked.

(2) If, after hearing all the evidence including that of the person granted bail and his witnesses (if any), the court is satisfied that the circumstances so require, it may—

(a) revoke the bail, discharge the person from his bail obligations and commit the person to a place of confinement; or

(My underlining for emphasis).

Reasonable grounds for revoking bail

5. What constitutes "reasonable grounds for revoking bail"? I think it is obvious that failure to fulfill bail obligations would amount to "reasonable grounds". What are the obligations of a person allowed bail? Section 17 provides these obligations, which are basically:
   
   • To appear in court when required to do so; and
     
   • To comply with other conditions of bail ordered by the bail authority.
     
6. The conditions referred to are those conditions imposed by the bail authority when granting bail: See section 18. These conditions are to be set out in the bail certificate (section 15(1)) and a copy of the certificate is kept by the person granted bail (section 15(2)).
   
7. I also consider that where it is established that since the grant of bail, circumstances have arisen akin to one of the criteria under section 9(1), this may also constitute "reasonable grounds" for revoking bail. For example: accused has talked to prosecution witnesses (likelihood of interfering with witnesses); there has been attempts to physically attack the accused by relatives of a victim (for the accused's own safety that he be kept in custody); the accused has committed a serious offence (likely to commit an indictable offence while on bail); the accused no longer has a permanent or fixed residence (not likely to appear at his trial).
   
8. This appears to have been the situation in The State v Sogavo Momoto Aupe (2001) N2072 which the State relied on. In that case, His Honour was satisfied that the consideration under section 9(1)(f) was established, that is, there was a likelihood of interfering with prosecution witnesses. It appears that he considered the condition not to interfere with witnesses an implied condition of bail, even if it is not stipulated on the bail certificate. He revoked bail because he found that this implied bail condition was breached. I agree with the decision to revoke the bail in that case, but with respect would propose that the proper grounds for revoking the bail is that the evidence of interference with witnesses constituted "reasonable grounds" for revoking bail under section 21, which I note was not referred to at all.
   
9. In the present matter, I consider the commission of this serious offence under the Firearms Act to be reasonable grounds for revoking bail.
   

Forfeiture of bail security

10. Can this court order forfeiture of the bail security of K500? Such forfeiture is permitted by section 22.
    

22. Forfeiture of security.

(1) Where a person granted bail contravenes or fails to comply with his bail obligations, a court may make an order forfeiting the whole or part of the security given by him to secure his bail obligations.

11. It is clear to me that the security can be forfeited only if a person granted bail breaches or does not comply with his bail obligations. These obligations are detailed in section 17, which I again stress are:
    
    • To appear in court when required; and
    • To comply with the bail conditions imposed by a bail authority.
      
12. In the present case, the accused has neither contravened nor failed to comply with those bail obligations. This court therefore has no power to order the forfeiture of the security of K500.
    

Forfeiture of security by guarantors

13. The State has also applied to have the monies paid by the guarantors as surety, forfeited to the State. Under section 19(1) a guarantor undertakes to ensure a person granted bail, appears in court when required, and complies with his bail conditions, in essence, to fulfill his bail obligations expressed in section 17. The guarantor may be required to pay money in support of his undertaking; section 19(5). The power of the court to order forfeiture such surety is found in section 19(7):
    

(7) If the person granted bail fails to appear at the time and place set for his trial or fails to comply with the conditions (if any) of his bail the court dealing with his matter may order—

(a) that the sum of money or part of it lodged by the guarantor be paid to the State; or

(b) that the guarantor pay to the State the amount or part of the amount he undertook to pay under Subsection (5).

14. The matters under consideration reflect the bail obligations set out in section 17, which I earlier explained. Section 19(7) basically says that if the person granted bail does not fulfill his bail obligations, the money paid by the guarantor as surety or security, may be forfeited.
    
15. The State also relied on the decision in The State v Sogavo Momoto Aupe (supra), arguing that it is an implied condition of bail that a person granted bail will not commit any offences while on bail, and since that implied condition has been breached, the surety stands to be forfeited. I am of the view that the forfeiture may only be ordered if those conditions of bail imposed under section 18 have been breached. The conditions of bail I ordered on 17 December 2009 do not include a condition that the accused was not to commit an offence whilst on bail. The guarantors have not breached their undertaking, to warrant the forfeiture of the surety monies they paid.
    

Orders

16. The orders of the court are:
    
    1. Application for the revocation of bail granted to the accused on 17 December 2009 is upheld.
       
    2. The cash bail of K500 paid by the accused shall be refunded upon production of the relevant receipt.
       
    3. The application for the forfeiture of the surety monies paid by the guarantors Pastor Brian Walters and Rachael Kapu, is refused.
       
    4. The surety monies paid by the guarantors Pastor Brian Walters and Rachael Kapu, shall be refunded to them upon production of the relevant receipts.
       

_________________________________
Public Solicitor: Lawyer for the Applicant
Acting Public Prosecutor: Lawyer for the Respondent