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Junior v State [2018] PGNC 132; N7229 (21 February 2018)

N7229

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) (FC) No. 02 & 03 OF 2018

MICHAEL YAKEP JUNIOR & WILLIAM SAHAL

V

STATE

Lae: Numapo AJ

2018:20^th February & 21^st February

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail Application – Misappropriation; Obtain by Fraudulent means; Conspiracy to defraud; Fraudulent falsification of accounts & Forgery – Ss. 383A (1) (a); 406 (1) (a); 407 (1); 418 (1) (i) (ii) (b) & 462 Criminal Code – Right to bail - s.42 (6) Constitution – Application for bail at any time- ss. 4 & 6 (1) Bail Act - Grounds for refusing bail not exhaustive– s 9 (1) (a)-(j) Bail Act - Interest of Justice - Discretion of Bail Authority – Bail granted

Held:
Application upheld

Bail granted with conditions

Cases cited:
Fred Keating v The State [1983] PNGLR 133
Maru and Oa v The State [2001] PGNC 151
Re: Application for Bail by Paul Louis Kysely [1980] PNGLR 36
Titus v The State [2001] N2043
Unday v The State (2916) N6574

Counsel:

J. Done, for the State
J. S. Langah, for the Applicants

BAIL APPLICATION

21^st February, 2018

1. NUMAPO AJ: This is an application for bail made by applicants Michael Yakep Junior and William Sahal both charged with a number of offences under the Criminal Code. The applicants were each charged with a total of fifteen (15) counts each. The charges were similar in nature and so I intend to deal with them together. The applicants were each charged with (i) three (3) counts of misappropriation pursuant to section 383A (1) (a) of the Criminal Code; (ii) three (3) counts of cheating by fraudulent means contrary to section 406 (1) (a) of the Criminal Code; (iii) three (3) counts of fraudulent false accounting pursuant section 418 (1)(i)(ii)(b) of the Criminal Code; (iv) three (3) counts of forgery under section 462 of the Criminal Code and (v) three (3) counts of conspiracy to defraud under section 407 (1) of the Criminal Code. It was estimated that the total amount of money alleged to have been stolen is K1, 862, 815.33 belonging to Bank South Pacific.
2. Both were employed by the Bank South Pacific (BSP) Ramu branch when the offences were allegedly committed. They were granted bail on the 17^th July 2017 by the Lae District Court at the committal hearing. On the 20^th December 2017 their cases were struck out for want of prosecution by the District Court. Both were re-arrested again for the same offence on the 02^nd February 2018. The Ramu District Court refused bail hence this application.
   

The Law on Bail Application

3. The applicants sought bail under sections 4 and 6 (1) of the Bail Act and section 42 (6) of the Constitution that states that a person taken into custody is entitled to bail at all times after arrest or detention and to acquittal or conviction. In addition, the presumption of innocence until proven guilty under s. 37 (4) (a) Constitution also provides the basis for a person to be released on bail pending hearing.
4. Section 9 (1) (a) – (j) of the Bail Act sets out the grounds on which bail may be refused. If the bail authority is convinced on reasonable grounds that one or more of the considerations outlined under s 9 is present it may refuse bail.
5. However, the guidelines under s 9 is not exhaustive as there are other considerations as well that may be taken into account such as interest of justice in deciding whether to grant or refuse bail. There is also the discretion in the bail authority to grant bail as s 9 does not necessarily prevent bail. In Re: Fred Keating v The State [1983] PNGLR 133; Kidu CJ (as he then was) and Andrew J stated that:

’.......the bail authority must still consider the interests of justice as required by [section 9] and the Constitution. This may involve considerations other than the criteria set under section 9 of this Act’.

Their Honours further stated that the presence of a consideration in s 9 does not automatically prevent bail: ‘there is always a discretion in the bail authority to grant bail’. The case established that the bail authority is not necessarily limited to the guidelines set out under s 9 to refuse bail as other considerations such as interest of justice may also form the basis to refuse bail. On the other hand, the bail authority may, in the exercise of its discretion, grant bail if the applicant can show by appropriate evidence that his continued detention in custody is not justified. These relevant considerations were also discussed in Re: Maru and Oa v The State [2001] and in Titus v The State [2001] N2043 which was later adopted in Unda v State (2016) N6574.

6. Whilst the considerations under s 9 (1) are specific and measurable, the interest of justice and discretion of the bail authority are not. It is a broader consideration of all relevant factors and circumstances (specific or general) to the case that the Court ought to take into account in deciding bail. For each bail application the facts are laid out and weighed against each considerations set out under s 9 (1). Other relevant considerations such as interest of justice and discretion of the bail authority are also weighed up as factors favouring the refusal or granting of bail.
   

This Application

7. In this bail application before me the only ground raised by the State to oppose bail was under s 9 (1) (f) of the Bail Act which was that the accused is likely to interfere with the witnesses if allowed on bail. However, State did not elaborate or substantiate further by way of evidence on what sort of interference it is referring to and who are the witnesses likely to be affected. The word ‘likely’ in s 9 (1) (f) was clearly explained in Re: Application for Bail by Paul Louis Kysely [1980] PNGRL 36; to mean ‘a real possibility’ and not ‘likely than not’, ‘probably’ or ‘very likely’.
8. The applicants have the right to bail and are entitled to bail at all times and to refuse them bail the Court must be reasonably satisfied that there exists a real possibility of the applicants interfering with the State’s witnesses. The onus is on the State to show the real likelihood of interference by appropriate evidence. To merely assume that the applicants might probably or very likely interfere with the witnesses if granted bail is not good enough.
9. The applicants were initially granted bail by the Lae District Court when they first appeared in Court. They were out on bail for almost four months before they were re-arrested. There were no evidence to suggest that the applicants, whilst on bail, interfered with or tried to interfere with the State’s witnesses or the person(s) who instituted the proceedings. Both have complied with the bail conditions imposed by the District Court one of which is not to interfere with witnesses. There is no evidence to suggest that bail conditions were breached. All in all, the applicants’ past bail history gives them a good head start in seeking bail.
10. The State only raised one ground to oppose bail as alluded to above. I do not think the Court should restrict itself to only addressing the specific ground raised to oppose bail but it should also, for purposes of completeness, consider the other considerations set out under s 9 (1) (a) – (j) of the Bail Act and assess the facts and weigh them up against each of the guidelines of s 9 and decide whether bail should or should not be granted. Of course, the interest of justice and the discretion of the bail authority are also matters for consideration by the Court in deciding whether to grant or refuse bail. And I do so accordingly in the following way:
    • (i) The applicants were both allowed on bail previously by the District Court and have been making Court appearances until they were re-arrested. The reason for their re-arrest was because their case were struck out by the District Court for want of prosecution and not because they breached their bail conditions or abscond bail. Therefore, I have no reason to believe that the applicants are unlikely to appear for their trial if granted bail. Both have no past history of breaching bail conditions or absconding bail. Therefore, the ground to refuse bail under s 9 (1) (a) must fail.
      
    • (ii) The alleged offence is not one that was committed whilst on bail. The applicants were re-arrested for the same offences they were charged with previously. I find no reason to refuse bail under s 9 (1) (b)).
      
      • (iii) The offences for which the applicants were charged with was one of misappropriation, stealing, fraud and forgery or commonly referred to as ‘white collar crime’. It does not involve a serious assault, threat of violence or use of dangerous weapons or firearms. For this reason the ground to refuse bail under s 9 (1) (c) (i), (ii) & (iii)) cannot be supported.
        
        • (iv) There is no evidence to suggest that applicants are violent persons with the tendency to commit an indictable offence or other offences generally if granted bail. Both were charged with non-violent offence. There is no reason to refuse bail on this ground- (s 9 (1) (d)).
          
        • (v) Based on the evidence before me, I am not convinced that there is any danger real or otherwise that the applicants should be remanded in custody for their own safety. Furthermore, there is no evidence to suggest that they would be harmed if released on bail. The ground to refuse bail under s 9 (1) (e) must therefore, fail.
          
        • (vi) As stated above, there is no evidence to suggest that there is a real possibility of the applicants interfering with witnesses or the person(s) who instituted the proceedings if they were allowed bail. The objection raised by the State to oppose bail is too generalized and vague and not properly supported by any evidence. Therefore, the ground to refuse bail under s 9 (1) (f) cannot stand.
          
      • (vii) The amount of money allegedly stolen is quite substantial. The applicants were out on bail for some four (4) months when they were re-arrested again for the same offence. They had an opportunity to deal with the stolen property or conceal it at the time they were out on bail but they did not and there is no evidence to suggest that they did or made any attempts to do so. I therefore, have no reason to believe that if granted bail they would make attempts to conceal or deal with the stolen property. The consideration under s9 (1) (g) could not be established to the reasonable satisfaction of the Court to refuse bail.
        
    • (viii) I note that the two guarantors Pastor Isaac Jacob of the Ramu Apostolic Church and Kevin Kole, Chairman of the Ramu Urban Peace Mediation Committee are persons of standing and integrity and are highly respected within the Ramu community. Both were present in Court throughout to show their support for this application. Both guarantors pledged a cash surety of K500 each. This indicated to me that both guarantors are genuine and serious about their commitment to support this bail application and most importantly, to ensure that the applicants fully comply with the bail conditions imposed and to appear in Court whenever they are required to attend. I accept that as sufficient sureties for all intended purposes.
      
      • (ix) I also note from the applicants’ affidavits that they both presented themselves to the police assisted by their lawyer on the 02^nd February 2017 when they were re-arrested and charged at Ramu. Both co-operated well with police to ensure that their arrests were effected smoothly without any difficulties or expense to the State. For this, I give them credit.

Ruling

11. I do not find any grounds to refuse bail under s 9 (1) of the Bail Act. Furthermore, there are no other considerations specific or general to the case that requires me to consider the interest of justice to refuse bail pursuant to s 9 of the Bail Act and s 42 (6) of the Constitution. Application for bail is therefore, upheld and bail is granted accordingly.
    

12. Bail is granted with the following conditions:

1. Applicants to pay National Court cash bail of K5000 each.
2. The applicants shall report to Lae National Court Registry every first Monday of every month between the hours of 9:30 am and 3:30 pm until the matter is fully determined.
3. The applicants are to attend all their call-overs and whenever they are required to attend to Court.
4. The applicants shall not interfere with any State witness including the persons who instituted the proceedings, nor go near or to their premises or area, whilst on bail.
5. The applicants are to reside at Gusap Township, Ramu District, Morobe Province at all times.
6. In the event that the applicants change their address of residence, the National Court Registry must be informed of the new address through their lawyer.
7. The applicants are not to consume, drink or take any drugs, alcohol or home brew when out on bail.
8. The applicants whilst on bail are to be on good behavior at all times.
9. The guarantors Pastor Isaac Jacob and Kevin Kole of Gusap Township, Ramu District, Morobe Province are the approved guarantors with a cash surety of K500 each and will ensure that the applicants comply with all of the bail conditions.

Orders accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Manase & Co. Lawyers: Lawyer for the Applicants