N6729	
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 547OF 2016

POKAI EDWARD LAGET
Applicant

V

THE STATE
Respondent

Kimbe: Miviri AJ
2017:	26th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail Act - Bail application –S4 bail act ––offence of armed robbery - conflict of interest police reservist guarantor-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
26thApril, 2017 
1.	MIVIRI AJ: Pokai Edward Laget you are charged on information that you on the 17th day of December 2011 at Laleki unlawfully and with intent did grievous bodily harm upon John Willy and you did so by cutting him with a bush knife.

2.	The facts at the back of the information attached as annexure “A1” of your affidavit dated the 29th November 2016 reads: Between 3.00am and 3.30am of the 17th December 2016 at Laleki you were accompanied by others armed with homemade guns bush knives and other weapons went to the house of John Willy. You cut the security fence entered the yard surrounded the house kicked the main door open and gained entry. Inside you attacked those sleeping inside the house by threatening to chop and shoot them with the weapons you had. And you started to rob them of their personal properties.

3.	You stole assorted electronic equipment, clothes, food, boots, mobile phones all together valued at K 5, 836 all the property of John Willy.

4.	In the course of the robbery John Willy fought you and was cut and received very serious injuries to his back and was rushed to the Kimbe General hospital examined and treated.

5.	Annexure A2 is the armed robbery information dated the 5th day of October 2016 and relates to armed robbery that allegedly was perpetrated on the 17th day of December 2011.

Law

6.	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.”

7.	So for the purposes of Bail these are the process of law followed per 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.

8.	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 section 9 has been made out for me to refuse you bail here?

Facts

9.      You pledge K1000 cash should you be granted bail and seek the approval of your guarantors Bolten Eliza who has filed an affidavit dated the 29th November 2016 where he says that he is a reservist police residing at Laleki, and know you very well and is willing to be your guarantor. He pledges K500 and says that in the event of grant of bail you will be resident at Kulungi village with your family.

10.      Your second guarantor is Korak Mekori. He also filed an affidavit dated the 29th November 2016, wherein he states he is a ward development committee of ward 1 Kimbe Local level government. He knows you as you all live in the same area. And is willing to be your guarantor understanding his role and responsibilities there. He pledges K500 as surety and deposes that in the event bail is granted you will be resident with your family at Kulungi village Kimbe.

11.      A village is not the same as a section and allotment number situated in the urban areas where it is a specific location on the grid where the defendant can be easily located. To locate the applicant in the village maybe a lot harder than in the urban setting. A lot more information and particulars must be supplied to pin down the applicant to a particular location in the village as opposed to a general location.
.
12.      I am firm here because of Sch. 1.5(2) of the Constitution which states that “All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning”.

13.      Bail under the Bail Act section 1 as 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.       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 Police reservist officer Bolten Eliza as he is in a conflict of interest situation where police are at the forefront of the prosecution here and he is trying to seek the endorsement of this court to have himself as guarantor for you charged by police for this allegation to be released on bail into the community.The point is well made by his Honour Justice Kandakasi, “ Again as I said in Lester v The State [2001] PGNC 148; N2044 (22 January 2001)at page 5:

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 are being met seem not to be 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 minimize 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 viewed in the overall interest of the society and serious negative impact 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.”

17.      This point is well made out by the affidavit of Detective Sergeant Peter Mirio dated the 19th April 2017 where he deposes that you were on the run from the law until you were picked up by Kimbe Police. You were on the run for 6 years and this is clear from the date of the offence on the information which is 17th December 2011.

18.      This is an attitude that according to detective Sergeant Peter Mirio where you will not turn up for your case whilst on bail. To be out on bail it must be guaranteed that you will appear when your matter is called.

19.      You have a guarantor who is not approved by the court because of conflict of interest as a police reservist. And in accordance with section 9 (1) (a) and (c) of the Bail Act you have not satisfied that you will reappear and the offence is one of violence with use of offensive and dangerous weapons, bush knives, homemade guns which was used on the owner of the dwelling house with serious injuries and therefore your bail is refused.

(a)	Application refused 
(b)	Defendant remanded

Orders Accordingly.
_________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant