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August v State [2017] PGNC 82; N6730 (25 April 2017)

N6730

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 50 OF 2017
ROGER KUSES AUGUST
Applicant

V

THE STATE
Respondent

Kimbe: Miviri AJ

2017: 25^th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail Act - Bail application –S4 bail act ––S9 Guarantors mother and uncle–offence of armed robbery- 16 year old applicant-bail refused.

Cases:

Re-Fred Keating [1988] PNGLR 133,

Kasi v The State [1999] PNGLR 566 (23 December 1999)

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

Counsel:
A. Bray, for the State
B Popeu, for the Defendant

RULING ON BAIL APPLICATION

25^thApril, 2017

1. MIVIRI AJ: Kuses Roger Augus of Miko Wasara East Sepik Province you are making an application to be granted bail pursuant to section 42 (6) of the Constitution and section 6 of the Bail Act.
   
2. You were charged on information dated the 7^th March 2016 that on the 4^th March 2016 you were in the company of 5 others armed with homemade guns and bush knives and shot and wounded a victim and caused the death of a person Blasius Pinda contrary to section 386 of the Criminal Code.
   
3. The facts at the back of the information attached as annexure “A” of your affidavit dated the 20^th December 2015 reads, on 4^th March 2016 you were part of a group of 5 seen at Global real century mart at Morokea opposite Nivani Limited headquarters. You all hoped on a route 2 bus and were all armed with offensive weapons homemade guns 3 bush knives got dropped off at the Global real Century Shop you all entered and stole assorted trade store goods to the total of K 72. 00 all the property of that company. At that time you were chased by the Chinese owner of the company. You shot a security guard who died instantly and you escaped. Police were able to get you to surrender with the help of the councillors and the community. And with the help of the community recover the murder weapon plus 2 pop guns, a staple gun, 3 live rounds 12 gauge buck shot cartridges and 5x live rounds .38mm.
   

Law

4. Section 4 Bail Act is specific “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 breaking and entering 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.”

5. So for the purposes of Bail these are the process of law followed under section 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.

(2) In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.

(3) For the purposes of Subsection (1) (i), “narcotic drug” has the meaning given to it in the Customs Act 1951.

6. Re-Fred Keating (supra), states,“before the discretion to refuse bail arises the court has to be satisfied that there are substantial grounds for believing that one or more of the matter described in section 9 (1)(a) to (g) are present It is the existence of substantial grounds for the belief not the belief itself which is the crucial factor: see Rv. Slough Justices; Ex Parte Duncan and Another [1982] 75 Cr. App. R 384”
   

Sitting as bail authority under section 4 and 9 of the bail act am I satisfied on reasonable grounds that one or more of the grounds of the section 9 has been made out for me to refuse you bail here?

Facts here

7. You seek to be on bail in the sum of K1000 cash and the nominated guarantors in your case are your uncle Alois Kukisal who has filed an affidavit dated the 20^th December 2016 where he says, “I know the applicant very well because he is my nephew”. And that he is prepared to guarantee surety for the bail in the sum of K500. And says should bail be granted you will be resident with your family at section 21 Kimbe.

8. Your second guarantor is your own mother Lucy Augustine who has deposed and filed an affidavit dated the 20^th December 2016 where she states, “I am the applicants mother and am therefore authorized to swear to this my affidavit. I know the applicant very well because he is my son. I am willing to be his guarantor...” You pledge the sum of K500 as surety for the guarantee. And state that you will be resident at Section 21 Kimbe.

9. Your mother is naturally there and has been all along why she would become a guarantor when she has seen you up from your birth to now. She would not be an independent person and naturally would be inclined to you her son. You were with her even before this allegation so what would she be guaranteeing for you. If the allegation arose whilst you were with her all along where does that leave her as a guarantor? Where would she draw from to guarantee you whilst you are on bail?

10. Her nomination as a guarantor to your bail will not be accepted including that of your uncle Alois Kukisal. Both are immediate blood relatives who have been with you since your birth what is there for them to offer as guarantees in this allegation against you. What were they offering immediately before you got into this allegation? Is there anything over and above that for them to offer as guarantees at this time?

11. You are facing a charge of armed robbery contrary to section 386 of the Code which included the use of dangerous and offensive weapons including the discharge of firearm that has killed. This is proven by annexure “D” of your affidavit which is from the office of LECHI ward seven member dated the 22^nd March 2016 where compensation was paid in groups.

12. I am firm here because of Section sch. 1.5(2) of the Constitution says that “All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning”.

13. This is not a criminal trial standard of proof because the language used by the section is reasonable grounds upon which it may consider as to one or more of the grounds there under. Bail under the Bail Act section 1 is defined, “means approval, whether or not subject to conditions, for the release of a person from custody”.Section 1 also defines bail authority as, “means a person or court empowered or required under this Act or any other law to grant Bail”. “Bail obligation” in relation to a person granted bail, means the obligations imposed on the person under section 17” Section 17 imposes upon the successful applicant of bail and person who is now on bail to be observant and adhere to the conditions appearing before the court on the substantive criminal matter then before the court. Here Court is defined under section 1, “court means any court, other than a village court, and includes a Judge or magistrate of any court, other than of a village court”.

Issue

14. Am I as an authority court on bail satisfied on reasonable grounds that one or more of the grounds under section 9 (1) has been made out for you to be refused bail? Lester v The State [2001] PGNC 148; N2044 (22 January 2001) see also Kasi v The State (below)

Facts on application

15. There must be independent persons not related to you as guarantors in your case where the penalty of death is inscribed and where the Bail Act section 4 specifically deals with. You stand to lose a lot in the matter and that is in and underlying your pledge to the court. Asking for bail using guarantors is not a mere formality but a matter of grave concern and seriousness in view of the charges criminally that are laid against the applicant against the backdrop of the community and society to see those who are accused of serious criminal charges to be properly secured in custody and dealt with according to law.Kasi v The State [1999] PNGLR 566 (23 December 1999) Lester v The State (supra)

Guarantor’s independent person of standing repute influence

16. The court will not accept nomination of Uncle Alois Kukisal and your mother Lucy as guarantor in your case. He is not a person of influence and repute or standing in the community. Adherence to bail especially in a robbery case where death has resulted where the penalty prescribed is the death penalty is a very serious matter where personal friends or wantoks let alone relatives are to be considered as guarantors in a bail application. In this case Geoffrey Vaki Deputy Police Commissioner and his brother Philip Vaki who was charged with wilful murder, attempted murder and robbery of half a million Kina at Nadzap airport is clear example that even where bail was granted to Philip Vaki on the guarantee of Geoffrey Vaki his big brother, Philip did not appear on trial and warrant was issued by the court to Geoffrey Vaki who executed the warrant to bring Philip Vaki to trial.

17. The court will not consider the other annexures as it would not be necessary to do so as consideration for example of the school aspect can only come in if there is good credible guarantor who can be responsible for you when you are out there on bail.

18. These includes the payment of compensation for the matter. If this was the case and you have paid also evidence, it would certainly be a good case in your defence to start thinking of preparing to deal with your substantive matter now and to get off once and for all.

19. What would be bail if you will simply go back into custody with the proof of the substantive matter?

20. For the foregoing reasons I will not grant bail to you until you have your guarantors settled as I have pointed out here.

(a) Application refused
(b) Defendant remanded

Orders Accordingly.

_________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant