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Pidik v Independent State of Papua New Guinea [2020] PGNC 42; N8203 (15 January 2020)

N8203

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 415 OF 2019

In the matter of an Application for Bail Pursuant to Section 4 and 6 of the Bail Act Chapter No. 340 & Section 42 (6) of the Constitution.

BETWEEN:
KAIA PIDIK
Accused / Applicant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Thompson J
2020: 15^th January

BAIL – application for bail by accused on grounds of threats issued to him by co-accused on remand – alleged offence committed by applicant is with use of firearms, actual violence and threats of violence – s.9 elements in the bail Act is present in the circumstances of the applicant –evidence of the grounds relied on by applicant to seek bail is inadequate and insufficient – Bail refused

Cases Cited:

Re-bail application, Fred Keating v the State (1983) SC257
Spencer Gerry v the State (2018) N7109

Counsel:

Mr. B Koke, for the Applicant
Ms H Roalakone, for the State

15^th January, 2020
1. THOMPSON J: The Applicant, Kaia Pidik, has been charged with armed robbery pursuant to S386 (1) (2) (a) (b) and (c) of the Criminal Code Act chapter 262. The maximum penalty for Armed Robbery is death.

2. The Applicant has applied for bail.

3. The Applicant has denied the charge. He also deposes that he is from Rabaul, East New Britain Province, but resides with his family at 3 Mile in the National Capital District. He says that he is married with three children. He says that he is the sole bread winner, but does not say how he supports his family. He gave no evidence of how he might support his family if bail was granted.

4. The main basis of the application is that the Applicant says that he has been threatened by the co-accused persons who are in custody with him. He says that they have said that he is a police informant, and that they have threatened to kill him, so that it is unsafe for him to remain in custody.

5. The arresting police officer supports the application for bail. However, he has no independent knowledge of any threats against the Applicant, and says that this is what he was told by the Applicant. The officer also says that the CCTV camera footage of the incident identifies the Applicant who was unarmed when getting into the motor vehicle used in the robbery. He says that he visited the Applicant and has reasonable grounds to believe that the Applicant showed remorse for his criminal conduct. This belief was contradicted by the Applicant’s own affidavit sworn on 23 November 2019 in which he says that he strongly denies the allegations and charge against him.

6. The officer also gave his opinion that the Applicant may develop stress and depression if kept in custody. The officer is not a doctor, and there was no medical evidence in support of this opinion. The Applicant himself did not raise this issue.

7. The State objects to bail as it contends that the alleged act constituting the offence in respect to which the Applicant is in custody includes being armed with two firearms, the use of actual violence, and threats of violence, and therefore comes within s9 (1) (c) of the Bail Act, so that if a bail authority is satisfied on reasonable grounds that this is so, it may refuse bail.

8. Other matters for consideration are that the amounts offered to be pledged as security by the proposed guarantors are only K250.00 each, which is not sufficient given the seriousness of the offence.

9. The two proposed guarantors have given evidence that they are willing to pay, and they both say that the Applicant would reside with his father, which appears to be in the same place as the Applicant’s family, if he is given bail.

10. The right to bail is guaranteed by s42 (6) of the Constitution. Section 9 of the Bail Act sets out the criteria for refusing bail. In the case of re-Bail Application, Fred Keating v the State (1983) SC257, followed in Spencer Gerry v the State (2018) N 7109, the Supreme Court said:

“When considering the grant or refusal of bail ... the courts and other bail authorities are to be guided generally by S9. But whilst the Bail Act is a complete code in dealing with the grant or refusal of bail, by S3 in matters other than wilful murder or treason, the bail authority may still have to consider the question of the interests of justice. This may involve considerations other than the criteria for refusing bail as established in this section”.

11. The Supreme Court also held that the existence of any of the factors set out in s9 does not automatically operate as a bar to the grant of bail. Instead, the Court has the discretion to decide whether to grant bail, having regard to the particular circumstance of each case and in the interests of justice.

12. In this case, if the State obtains evidence to show that threats have been made against the Applicant by the co-accused, the appropriate course would be to move the Applicant to a different section away from the co-accused, before considering the need for a fresh bail application.

13. I am satisfied on the evidence that the acts constituting the offence in respect to which the Applicant is in custody, come within s9 (1) (c) of the Bail Act, namely, having or possessing a firearm and a threat of violence to another person. I am satisfied on reasonable grounds that the evidence of the grounds on which the Applicant seeks bail is inadequate and insufficient. I am also satisfied that it is not in the interests of justice that bail should be granted.

14. For these reasons, the application for bail by Kaia Pidik is refused.
_________________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent