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Wynebegger v State [2010] PGNC 67; N4077 (11 March 2010)

N4077

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No. 38 OF 2010

In the matter of an Application for bail under s. 42(6)
of the Constitution and s.6 of the Bail Act

BETWEEN:

CASPER WYNEBEGGER
Applicant

AND:

THE STATE
Respondent

Waigani: Kawi, J
2010: 05th & 11th March

CRIMINAL LAW – Practice and Procedure – Bail application – Offence of armed robbery – Section 386(1)(2)(a)(b)(c) Criminal Code - Considerations under section 9(1)(c),(f) and (g) relate to the alleged offence against the applicant – Wife proposed as a guarantor - Need for guarantor to be neutral person - Interests of Justice – Interests of applicant weighed against interests of community - Interests of the community to be protected - Possible apprehension of bias and conflict of interest by wife guarantor – Bail Refused.

Cases cited:

Herman Kagl Diawa v The State [1980] PNGLR 148
Re Fred Keating v The State [1983] PNGLR 133
Heisi Tau vs The State [1999] N1937
Malaki Kongo & Joe Akusi v The State [1996]
Paul Guan v The State [1991] N3576.
In the matter of a Bail Application by Cletus Waffi [2010] N4078
Heisi Tau v. The State [1999] N1937

Counsel:

Mr. S. Sam, for the Applicant
Mr. A. Bray, for the Respondent

RULING

11th March, 2010

1. KAWI, J: The accused Casper Wynebegger applied for bail under Sections 4 and 6 of the Bail Act. He is charged with one count of aggravated robbery contrary to Section 386 (1)(2)(3)(a)(b)(c) of the Criminal Code.

FACTS

2. The accused is alleged to have stolen with actual violence from one Philip Forley, a quantity of goods and cash valued at K 91,000.00, and two (2) mobile phones, being the property of Port Moresby Betting shop. The offence is alleged to have been committed on the 22nd September 2008. In support of this application, the accused relied on three (3) affidavits;

(a) His own affidavit sworn on the 18th February 2010.

(b) The affidavit of Fr Anthony Albert Rochus sworn on the 17th September 2010 and his amended affidavit sworn on 02nd March 2010.

(c) The affidavit of Mrs. Elisha Madabe, the wife of the accused, sworn on the 19th February 2010.

3. The latter two affidavits are the proposed guarantors, Elisha Madabe proposes that her husband the accused will live with her at the home of her father, One Chief Sergeant Madabe at flat 151 allotment 52 Gordons Police Barracks. I gather from her affidavit that she does not have a home of her own but resides with her parents inside the Gordons Police Barracks.

4. The other affidavit is from Fr Anthony Albert Rochus the Police Chaplain. He is the Catholic Chaplain of the St Francis Gordons Sub Parish. He deposes to the accused’s good character and standing and his involvement in Parish and Church activities especially his involvement in the Youth Ministry. Annexed to his affidavit are two letters, one from First Constable Max Manehe the Catholic Youth co-coordinator and the other from the Parish Council Chairman, Sergeant Jeffrey Simewa. Both speak highly of the good character and standing of the accused in the St Francis Sub–Parish and his involvement in church sponsored activities. Both guarantors pledge a surety of K 200.00 each in the event of the accused skipping bail.

GROUNDS FOR BAIL

5. The application is based on the following grounds;

(a) the accused is a person of good character and standing as revealed by the letter from the Youth coordinator of the St Francis Catholic Sub–Parish and the Parish Council Chairman, Sergeant Jeffrey Simewa;

(b) the accused is already committed to stand trial in the National Court and he prefers spending this time outside with his wife and family; and

(c) because of the seriousness of the charge, the accused needed time to secure legal advise and representation if he is released on bail.

STATE’S OBJECTIONS

6. The State opposes bail. The State submits that there is a confessional statement on file. The presence of this confessional statement is an indication that the accused may not appear at his trial. He is more likely to abscond. The State therefore submits that the accused will abscond trial as stipulated under Section 9(1)(a) of the Bail Act.

7. The second objection is based on Section 9(1)(g) of the Bail Act. The State argues that the applicant is charged with armed robbery in which actual violence, threats and offensive weapons, namely firearms were used. Of the K 91,000.00 that was stolen, K 30,000.00 has been recovered from a co–accused, one Patriarch Logi. The balance of K 61.000.00 has not been recovered as yet. If the accused is granted bail there is a real likely hood that attempts may be made either by him, or his associates with his knowledge and participation, to dispose off or conceal this money and make police efforts to investigate and recover this money difficult. On this basis it is argued that section 9(1)(g) is present.

8. The third ground of objection is based on Section 9(1) (c). It was argued that the accused is charged with aggravated robbery which involved violence, threats, serious assaults and holding up one Peter Forley with a firearm. Bail should be refused on this ground as all the factors under Section 9(1)(c)(i)(ii)(iii) are all present.

9. The State’s last objection is based on Section 9(1) (f) - interfering with witnesses. It was submitted that the applicant was working with one Lawrence Karai before his arrest. The said Lawrence Karai is now a State witness. If granted bail, there is a real likelihood that the accused will interfere with Lawrence Karai or make attempts to interfere with Lawrence Karai. The State therefore submits that bail must be refused because the consideration enumerated under Section 9(1) (f) is present.

THE LAW ON BAIL

10. The law on bail has been clearly stated in many cases. Section 42(6) of the Constitution guarantees ‘’every person charged, arrested or detained for an offence other than treason and willful murder to bail at all times from arrest or detention to acquittal or conviction unless the interest of Justice otherwise requires’’. In the case of Herman Kagl Diawa [1980] PNGLR 148, Kearney, DCJ reiterated an accused person’s right to bail as follows; ‘’it is clear from Section 42(6) of the Constitution that an applicant is entitled to bail during the course of his trial, unless the interest of Justice otherwise requires.”

11. The Bail Act then gives effect to Section 42(6) of the Constitution. This right to bail is however not automatic. The right to bail is qualified by the prescriptions enumerated under Section 9 of the Constitution. This means that Section 9 of the Bail Act sets out the criteria which may operate as a bar to the grant of bail. However bail should not be refused for this reason alone. The Supreme Court decision in RE Fred Keating [1983] PNGLR now makes it clear that even if one or more of the considerations under Section 9 are shown to exist, the court still has the discretion to grant bail, with the applicant bearing the onus of satisfying the court as to why his continued detention in custody is not justified. Section 9 of the Bail Act is in the following terms;

9. BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

(1) Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:–

(a) that the person in custody is unlikely to appear at his trial if granted bail;

(b) that the offence with which the person has been charged was committed whilst the person was on bail;

(c) that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of–

(i) a serious assault; or

(ii) a threat of violence to another person; or

(iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive;

(d) that the person is likely to commit an indictable offence if he is not in custody;

(e) it is necessary for the person’s own protection for him to be in custody;

(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings;

(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;

(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody;

(j) that the alleged offence is one of breach of parole.

12. Let me now deal with the objections by the State. The first is based on Section 9(1)(c) (i)(ii)(iii). The statement of facts which is annexed as annexure ''A'' and ''B'' to the affidavit of applicant charges that the accused acting together with others held up one Peter Forley and robbed him of K 91,000.00 and two mobile phones, the property of Port Moresby Betting Shop. Firearms were used in this robbery. There was actual violence and threats when the robbery was being perpetrated.

13. Whilst counsel for applicant submits that the name of the accused is not mentioned at all in the charge and the statement of facts, I am satisfied that, the victim of the robbery, one Peter Forley, was forced to sleep on the floor with his face down. I am further satisfied that factory made firearms were used in forcing Peter Forley to lie down on the floor with his face down while the robbery was being perpetrated. I find that there was violence and threats used when the robbery was being committed. I find that the factors prescribed in Section 9(1)(c) (i)(ii)(iii) are all established.

14. The next objection is that based on Section 9(1)(g). The State fears that because of the substantial amount of money stolen, there are fears that the applicant may conceal or take steps to conceal this money if granted bail. The applicant on the other hand argues that of the monies stolen, K30,000.00 was recovered from one Patriarch Logi who has since been discharged, following a Nolle Prosequi filed by the State in his case. If there was anyone who had the propensity to deal with and conceal these monies it had to be Patriarch Logi. While Patriarch Logi may have been discharged by the filing of a ''Nolle Prosequi,'' I am of the view that, that does not relieve or absolve anyone, including the applicant, of the still missing K 61,000.00. In fact it is more pressing upon the community now to assist police recover the missing monies and I do not think that the interest of the community interwoven in the phrase ''interest of Justice'' will be served by releasing the accused back to that community. I do not accept the argument that because K 30,000.00 was found on Patriarch Logi, he is the only one to conceal this money. I accept the State's submission that community interests would be served by remanding the accused in custody, as there is a risk that he may hamper Police efforts to recover this money. I therefore find that the objection based on Section 9(1)(c) are made out.

15. The next objection is based on Section 9(1)(f) – interference with witnesses. The State submits that before his arrest and detention, the accused was employed by one Lawrence Karai who is now a State witness. The fear is that if released, the accused may likely to interfere with the said Lawrence Karai. I accept this submission. Accordingly the objection based on Section 9(1)(f) have been established.

16. The last objection is based on Section 9(1)(a). It is submitted that there is a confessional statement on file and on the basis of this confessional statement, the accused is more likely than not to abscond and not appear for his trial. A perusal of my court file does not even indicate a confessional statement of any kind at all. Neither did the State file any affidavit materials annexing the so called confessional statement. Instead counsel simply made these statement from the bar table, which I will not readily accept. While I am not bound by strict and technical rules of evidence as stipulated in Section 9(2) of the Bail Act, I still cannot accept assertions of fact from counsel at the bar table.

17. I am of the view that in order to assist the Court arrive at findings and conclusions, which I am being asked to draw, there must at the least, be some factual basis adduced by way of affidavit evidence, to form the factual basis, from which I can than draw legal conclusions. Mere factual assertion from the bar table will not be accepted. I find that the objection based on Section 9(1)(a) is not established.

OTHER CONSIDERATIONS

18. The applicant further submitted that I should nonetheless exercise my discretion to grant bail, in the interest of justice citing the case of RE; Fred Keating as authority for this proposition. In this regard he submitted that I should take into account, the following when exercising my discretion;

(a) That the accused is a person of good character and standing as evidenced by the written references from First Constable Max Manehe, the Catholic Youth Coordinator of the St Francis Sub–Parish Gordons and Sergeant Jeffrey Simewa, the Parish Council Chairman. The evidence from Catholic Priest and Police chaplain, Fr Anthony Albert Rochus gives credence to the applicant's good standing. From these written accounts I do accept that the applicant is a young man of good repute and standing. But I must weigh his good standing and interests against the interests of the community. The community interests is inter-woven in the phrase ''the interest of Justice,'' as used in Section 42(6) of the Constitution and Section 3 of the Bail Act. In Heisi Tau v. The State [1999] N1937, Sakora, J made it clear that the notion of Interest of Justice included in the provision of Section 42(6) of the Constitution and Section 3 of the Bail Act "is concerned with 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 of innocence are fully and finally determined according to law."

His Honour further stated:

"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 realize that they have forfeited their right to live and move around freely."

Following on from the above, I find that it is in the community's interest that the missing balance of K 61,000.00 out of the K 91,000.00 that was stolen must be recovered. And it is this communal interest that must be protected against an individual interest. On this basis I am of the view that there is a risk in releasing the accused back to his community. He may interfere with witnesses or he may re-offend if he is released on bail. I am not satisfied as to this ground and would not exercise my discretion in favor of the applicant here.

(b) The applicant further argued that as it is he is presumed innocent until proven guilty by a court of law. All the allegations remain allegations until proven strictly according to law. A lot of emphasis was placed by his counsel on his right to bail and presumption of innocence. It is true that presumption of innocence is a most fundamental right under the Constitution, that a person charged with an offence is presumed innocent until proven guilty according to law.

Be that as it may, the whole criminal justice process had just started which will eventually determine the accused's guilt or innocence according to law. And this same criminal justice process prescribes that the right to bail is a qualified right with the qualification being prescribed by law itself. Just because section 42(6) of the Constitution guarantees a right to bail, does not mean, an applicant for bail must be automatically granted bail. Section 42 entitles an accused person a right to bail unless the interests of justice requires and the interest of justice includes those considerations enumerated under Section 9 of the Bail Act. This right to bail is qualified by the considerations under section 9 of the Bail Act and even if one or more of these criteria are present, the court still has to weigh whether it is in the interest of justice to grant bail with the applicant for bail bearing the onus of showing why his continued detention is not justified. As I noted earlier, the Constitution accords an accused person, a right or entitlement to bail. But as I said, right to bail may not be extended or accorded, if interests of justice dictate that the accused should not be free in the community while awaiting his trial. By being charged with an indictable offence, he has forfeited that right to live and move freely amongst his community.

19. The last ground which the applicant urges me to consider in exercising my discretion to grant bail is that I should grant bail to enable him to seek legal representation. The State argues that the applicant is already having access to lawyers even when he is in custody.

20. In fact I note that the applicant is already represented by learned counsels from a very good and reputable law firm whose legal services extend to persons in need like the accused on a "pro bono basis." The accused does not need to be on bail to give instructions to prepare his defence. In my view to be granted bail for the purpose of securing legal representation is not a convincing ground that warrants the exercise of my discretion to grant bail.

21. All in all I am therefore not satisfied that the applicant has discharged the onus of satisfying me that his continued detention is not justified. For all these reasons I will refuse bail.

GUARANTORS

22. The accused proposed two guarantors; the first is one Fr Anthony Albert Rochus, the Police Catholic Chaplain who is based at the St Francis Sub-Parish within the Gordons Police Barracks, where the wife of the accused also lives with her parents. I do accept and have absolutely no hesitation in approving Fr Anthony Albert Rochus as guarantor. Fr Anthony is the spiritual Director of the Police Force stationed at Gordons Police Barracks and is a very neutral person, whose only interests in this matter is to see the spiritual development and advancement of all Police Personal located in the Gordons Police Barracks, including the applicant and the Police Force generally. There can be no apprehension of bias or conflict of interests in proposing neutral persons of standing in the community such as a Catholic priest or a pastor as a guarantor. I will readily approve the nomination of Fr Anthony Albert Rochus as a guarantor.

23. But I can not say the same for Mrs. Elisha Madabe. She is the other proposed guarantor and is the wife of the accused. She is not a mere relative, but the wife of the accused. The Supreme Court issued a caution relating to a possible apprehension of bias and the possibility of placing themselves in a conflict of interest situation when nominating relatives as guarantors. The Supreme Court said this;

''We have noted that, the proposed guarantors are all related to the two applicants. On these grounds we are of the view that there may be some apprehension of bias and conflict of interest involved. The risk of absconding bail would be much higher as compared to a guarantor who is a neutral person.''

Malaki Kongo & Joe Akusi v The State [1996]; Paul Guan v The State [1991] N3576.

24. In the Bail Application of Cletus Waffi (2010) N4078, I refused to approve the elder brother of the accused and the uncle of the accused as guarantors. I also refused bail for that reason.

25. I made the following comments;

'' Being family members, I am very mindful that there may be some bias and conflict of interest involved. The risk of the applicants absconding bail is very real here than if the guarantors were neutral persons. As much as possible applicants for bail must be very careful when nominating relatives and family members as guarantors. Persons who accept to be guarantors should be neutral persons. I do accept that because these are all family members there is a reason to argue that there may possibly be some apprehension of bias and conflict of interest involved. The fear of absconding bail is real here than if a neutral person was nominated.''

26. I say the same thing here. The chance of the accused skipping bail is very real here. Further more the possibility of Elisha Madabe placing her self in a conflict of interest situation, is real here too than if someone neutral was nominated as a guarantor. There may also be an apprehension of bias here for that same reason. This would equally apply to the father in law of the accused, Chief Sergeant Madabe, who undertook to ensure that his son in-law, the accused, abide by his bail conditions. For all these reasons, I would not approve Elisha Madabe as a guarantor accordingly. I would also refuse bail for that reason

27. In the end I order that bail be refused and the accused be remanded in custody until trial or bail being granted by another Court. Pursuant to Section 6 and Section 13 of the Bail Act the applicant may make further application to this Court or the Supreme Court at any stage of the proceedings.

_________________________________________
Paul Paraka Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent