Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Agres v State [2016] PGNC 390; N6636 (20 September 2016)

N6636

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO.354 OF 2016

IN THE MATTER OF AN APPLICATION FOR BAIL
PURSUANT TO SE CTIONS 42 (6) OF THE CONSTITUTION & SECTIONS 6 & 13 OF THE BAIL ACT (CH.NO.340)

BETWEEN
THOMAS AGRES
Applicant/Defendant

AND

THE STATE

Respondent

Kokopo: Lenalia, J
2016: 9^th& 20^th September

PRACTICE & PROCEDURE– Application for bail – Applicant kept in custody after being arrested and charged with the crime of armed robbery pursuant to s.386 (2) (a) (b) of the Criminal Code.
PRACTICE& PROCEDURE – Application for bail – Are there any exceptional circumstances while being remanded in custody – Offence charged involved serious assault – Relevant principles considered – Bail refused.

Cases cited:
Charley Posanu & David Koyama-v-The State (1.5.09) SCAPP.Nos.2 &3 of 2009
Re Fred Keating [1983] PNGLR 133
Re Heramn Kagl Diawo [1980] PNGLR 148
The State v Peter Kakam & Others [1984] PNGLR 99
The State-v-Beko Job Paul [1986] PNGLR 97

Counsel:
Mr. M. Peter, for Applicant
Mr. L. J. Rangan, for the Respondent

20^th September, 2016

1. LENALIA J: The applicant is charged with one count of armed robbery under s.386 (1) (2) (a) (b)of the Criminal Code. The application by a Notice of Motion is made pursuant to s.13 of the Bail Act after the applicant was refused bail by the District Court. This sections states:
   • (1) Where a person is refused bail by a Magistrate he is entitled to apply for bail, immediately if he so desires, to a Judge of the National Court.
   • (2) Where a person is refused bail by a Judge of the National Court he is entitled to apply for bail, immediately if he so desires, to the Supreme Court.
   • (3) Where an application is made under Subsection (1) or (2), the applicant shall produce a copy of the reasons given under Section 16.
     

2. The applicant has been committed to stand trial in the National Court by the Kokopo District Court. He is currently remanded in custody at the Kerevat Correctional Services. On his affidavit, he sets out the following three grounds for his application:

(a). He is a law abiding citizen and he has never committed any crimes in his life.

(b). He is self-employed concentrating on drying of cocoa, coconuts and transporting them for sale to support his family.

(c). That while he was in prison he was diagnosed with hypertension.

3. The brief facts of what is alleged against the applicant is that, on 19^th July 2015, the applicant arrange with a woman from Vunamami village Ms. Orim Kolish. The agreement was entered into for a one day hire of her vehicle. The vehicle was a Maroon BT50 Mazda Double-Cab Reg. No. RAB 812. The vehicle was delivered to the applicant a day later at KBB resort car park and the applicant drove the vehicle away.

4. Next day, that is 20^th July 2015, the hired vehicle was used by unknown persons to conduct a daylight armed robbery at the front of the BSP Branch in Rabaul town. An employee from Zero Supper Market Shop in Rabaul, Shirley Willie was on her way into the bank premises to do or conduct banking for the company when the criminals produced a high powered gun to her and pointed it at her and threatened to shoot her, if she did not give them the money in her possession. In fear, she handed over the bag of money to the gang.

5. When BSP security officials intervened, the criminals also pointed the gun at them. They took the money and got onto the vehicle that was hired by the applicant and they fled. The total cash money stolen was K165, 840.16 the property of Zero Supper Market.

6. The criminals involved on this crime have not been arrested and due to the fact that the vehicle used on this robbery was hired by the applicant, he was arrested and charged for the crime of armed robbery. The facts show that, some of the suspects may be known but are still at large.

7. I heard counsels’ submissions on this application on 9^th of the instant month. Mr. Peter counsel representing the applicant argued that their client is entitled to bail and due to the fact that his client was not directly involved in committing the crime, he should be granted bail to attend to his family commitments and his business activities.

8. Mr. Rangan, the lawyer representing the Respondent/State objected to the application basing his argument on the issue of the large amount of money involved on this case has not been recovered. The second issue is that, if the applicant is released on bail, he may take steps to interfere with witnesses and may take steps to assist those who took part in committing the crime and assist them to conceal the money.

Should the Applicant be released on Bail?

9. Under s.42 (6) of the Constitution and ss.4 and 6of the Bail Act, the court has discretion to grant bail to the applicant. Grant or refusal of bail is exercise after considering s.9 of the Bail Act. This provision sets out the circumstances under which a bail authority may grant or refused bail. Even where considerations against an application are made out, the court has discretion to grant bail: Re Fred Keating [1983] PNGLR 133.
10. It has been repeatedly said, that where one of the conditions mentioned in s.9of the Bail Act is present, it does not follow that, bail should not be granted: The State v Peter Kakam & Others[1984] PNGLR 99, The State v Beko Job Paul [1986] PNGLR 97. (See also Charley Posanu & David Koyama-v-The State(1.5.09) SCAPP.Nos.2 &3 of 2009).

11. Where a bail authority is considering an application for bail as on this application, I am required to consider s.9 of the Bail Act. This section states:
“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; or

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

(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; or

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

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

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

(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; or

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

(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; or

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

12. The court has read the letter from the arresting Officer of this case, Senior Constable Ukies Kibale of the Criminal Investigation Division office here in Kokopo Police Station. The letter dated 8^th September 2016 sets out seven reasons why this application should not be granted. They are:

1. The accused Thomas Agres was the one who hired the car for the purposes of the robbery.
2. The cheques and cash totaling K165,840.16 stolen during the robbery has not been recovered and the accomplices involved in the robber have not been apprehended as the applicant has not released their names.
3. The other four or five accomplices are still at large may only be known by the applicant.
4. During the robbery, high powered guns were used have not been found by police.
5. The driver of the hired vehicle is believed to be the applicant himself because he himself hired the vehicle.
6. Police and the prosecution witnesses fear that if the applicant is released, their lives will be in danger, and
7. The applicant has a home in Rabaul town and if released on bail, he will take steps to interfere with the witnesses.
   

13. I have read the medical report conducted by the H.E.O of the Kerevat Rural Hospital Ms. Margret Tuvi. According to that report, the applicant was diagnosed with high blood pressure last year. The report says that if the applicant can have a lot of rest, it would or could assist in controlling of the hypertension. I am sure if the applicant can continue with his medical treatment in the manner prescribed by the H.E.O there should not be any problem.
14. The court has also read the affidavits of those proposed guarantors. The Ward Member for Malaguna No. 1 Mr. Leslie Tito and the serving Minister of the Malaguna United Church Reverend Garson Igua both say that, the applicant is a dedicated person both to the Church, to the community and his family. They say they know the applicant to be supportive to the community and his family.

15. The applicant’s wife also filed an affidavit in support of this application. In her affidavit she says that, her husband is a family man who owns a small business referred to as Truss Cocoa Buyers which is registered and other business activities. She says that, due to her husband’s condition of health he should be released on bail.

16. The court has considered counsels’ submission. The issue is should the applicant be released on bail amid the allegations that, the amount of money stolen concerns a large sum of money which has not been recovered. Secondly, the vehicle used during the robbery was the same one that was hired by the applicant.

17. There is no information before this court as to who are or who may have been accomplices to this serious robbery during which a high powered firearm was used. There are two possibilities. First, the applicant may have driven the vehicle by himself to conduct the daylight robbery and secondly, there may have been other persons involved in the robber who may have used the hired vehicle.

18. If the case involved the second possibility, it may be that the applicant does not wish to reveal the names of those who used the vehicle that he hired. Considering the applicant’s lawyer’s submission that, the applicant is merely a suspect, the applicant ought to establish dialog with police on the reality of what occurred. As stated earlier on comments on submissions by the lawyers both for the applicant and the respondent, the court has discretion to either grant or refuse bail: Re Fred Keating v The State [1883] PNGLR 133 or that of Re Herman Kagl Diawo [1980] PNGLR 148).

19. It has often been stated that bail is a Constitutional right as per the terms of s.42 (6) of the Constitution. On this application, I would adopt what the Supreme Court said in Re Fred Keating that the exercise of the discretion to grant bail should be used and granted readily unless any one of the considerations mentioned in s.9 of the Bail Act is established.

20. It is clear from my reading of s.9 (1) of the Bail Act that when a bail authority is deciding whether to grant or refuse bail it says, “it shall not refuse bail unless satisfied on reasonable grounds as to one or more” of the grounds listed from (a) to (j) of that Section. That in my view is a restatement of the law stated in s.42 (6) of the Constitution.

21. According to Subsection (6) a person arrested for an offence is entitled to bail and if it is an offence of treason or wilfull murder, an Act of the parliament should define its application. That is why s.4 of the Bail Act states:
“4. Only National or Supreme Court may grant bail in certain cases.

(1) A person—

(a) charged with wilful murder, murder or an offence punishable by death; or

(b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or break and enter a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence,

shall not be granted bail except by the National Court or the Supreme Court.

(2) For the purposes of Subsection (1), "firearm" includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile.”

22. In my opinion, when one or more of the considerations under s.9 (1) (a) to (j) are shown to exist, does not mean bail should automatically be refused. This court has discretion to refuse or grant bail in any application considering all circumstances attached to each application: The State v Beko Job Paul [1986] PNGLR 97

23. As such the interest of justice factor requires this court to consider the nature of this application and decide if it can grant bail. I am satisfied with the submission by the Respondent’s counsel and the letter addressed to him by the arresting officer Senior Constable Kibale that if the applicant is released on bail, he will take steps to interfere with the State witnesses.

24. The weapons used on this crime have not been recovered. Secondly, the money stolen was a large sum of money has not been recovered. Thirdly, the four or five accomplices have not been apprehended. The fourth point is that, the vehicle used on the robbery on this case was the one hired by the applicant and the issue is, how did the hired vehicle landed onto the hands of the gang members that was used it to commit the crime.

25. It is my view that, the applicant could have clearly explained his position to the arresting officer as to how the vehicle he hired got off his hands then on to the hands of the gang that robbed the bank on the morning of the date the crime was committed.

26. I have read the affidavit of the applicant and I did not find anything about the suspicion by police of other accomplices or even any information about the names of the people who used the vehicle during the robbery.

27. I am sure if the applicant can continue with his medical treatment in the manner prescribed by the H.E.O there should not be any problem. Having expressed such comments, I conclude that if the applicant is released on bail he will or might take steps to interfere with the witnesses or take steps to conceal the large sum of money stolen during the robbery. I am sure if the applicant can continue with his medical treatment in the manner prescribed by the H.E.O there should not be any problem.

28. For this reasons, the Court directs that, the C.S. Commander at Kerevat and his staff list this applicant on light duties awaiting his trial. The Court refuses this application. Parties shall meet their own costs.

________________________________________________________________
P. I. C. Legal Services: Lawyer for Applicant

The Public Prosecutor: Lawyer for the Respondent.