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Gola v State [2022] PGNC 232; N9655 (8 June 2022)

N9655

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA 574 OF 2022

DAVID SINE GOLA

V

THE STATE

Waigani: Wawun-Kuvi, AJ
2022: 7^th &8^th June

CRIMINAL LAW – Bail – Applicant charged with Aggravated Robbery, under s.386(1)(2)(a)(b)(c) of the Criminal Code– Exceptional circumstances not established – Application refused.

Cases Cited:

Yausase v The State, (2011) SC1112
Re Bail Application by Hombi [2010] PGNC 84; N4080
Fred Keating v The State [1983] PNGLR 133

Legislation:

Bail Act 1977(Ch 340)
Criminal Code (Ch 262)

Constitutional Law

Constitution of the Independent State of Papua New Guinea

Counsel:

Mr Vincent Ngibe, for the Applicant
Ms Violet Ningakun, for the Respondent

DECISION ON BAIL APPLICATION

8^th June, 2022

1. WAWUN-KUVI, AJ: This is an application pursuant to sections 4 and 6 of the Bail Act 1977 and 42 (6) Constitution.
   
2. The applicant is charged with one count of Aggravated Robbery contrary to section 386(1)(2)(a)(b) and(c) of the Criminal Code.
   
3. The alleged facts are that on 10^th November 2021 between 8.30 am and 9.00 am, the applicant and others unlawfully entered the premises of Ms. Debbie Wong at Chester Street, Granville in Port Moresby. They were armed with a firearm and other weapons. On entry, they detained Ms. Wong’s gardener by gun point. He was tied and locked in a room. Ms. Wong’s maid was also held up at gun point and ordered to take the applicant and his accomplices to her employer’s safe. The applicant and his accomplices then stole the safe, a pistol, a firearm magazine containing 14 9mm rounds along with other items in the house. The properties stolen were valued at K141, 339.41. The maid was restrained and locked inside the house. The applicant and his accomplices then left. The maid was able to remove her restraints and seek assistance. A complaint was laid with police and the applicant was subsequently arrested.
   
4. The State opposes bail.
   
5. There is a presumption in favor of bail for persons who have not been charged for wilful murder or treason.
   
6. As the State opposes bail, it must demonstrate to the Court that there is present one or more considerations under section 9 of the Bail Act. But even if one or more of those considerations are present, the Court still has a discretion to grant bail. For the Court to exercise, its discretion, the application must show that there are exceptional circumstances that render his continued detention unjustified: Fred Keating [1983] PNGLR 133 and Yausase v The State (2011) SC1112.
   
7. Before determining this matter, I remind myself that in an application for bail the Court is not bound by technical rules of evidence and may act on such information available to it: Fred Keating v The State [1983]^[1].
   
8. The State has submitted there are considerations under sections 9 (1) (c) (i), 9(1)(c)(ii) and 9(1)(c)(iii). That is, that Ms. Wong’s employees were restrained, threatened with violence and a firearm and other offensive weapons were used during the commission of the offence.
9. The allegations do not demonstrate any serious assault on either employee of Ms. Wong. However, I am satisfied that a firearm was used during the commission of the offence and that there were threats of violence to other persons.
   
10. Having been satisfied that there are considerations under section 9(1)(c)(ii) and 9(1)(c)(iii) of the Bail Act, the applicant must demonstrate that there are present in his case, exceptional circumstance that make his continued detention unjustified.
    
11. The applicant sets out his grounds for bail at paragraph 8.1, 8.2 and 8.3 of his affidavits sworn on 9^th May 2022.
12. I restate the grounds and address each of them as follows:

Medical Condition

13. The applicant states that he had been receiving treatment for Obstructive Airways Disease since 2018. He states that he has been advised by his doctor to avoid smoking, to be in a well-ventilated area, to avoid overcrowding and to keep himself warm during cold weather. He attaches a referral form from the Nine Mile Urban Clinic with what appears to be clinical notes.
    
14. Whilst the strict rules of evidence do not apply, the Court must be presented with evidence by a medical doctor as to factors such as diagnosis, treatment, and seriousness of the illness. The report must also be current and state the present condition of the applicant and the likely adverse effects that continued incarceration will have on the health of the applicant. There is none in this case.
15. As it is, there is very little before the Court in support of this ground.

Family Welfare

16. The applicant submits that his prolonged incarceration would be detrimental to his family.
17. In re Bail Application by Hombi [2010] PGNC 84; N4080, Kirriwom J held that family situations do not justify the release on bail. Family suffering are consequences of being arrested and detained for an offence and do not form a ground for bail.

Delay in Prosecuting case

18. The applicant states that his committal case has been prolonged, and the police have not served him with his Hand Up Brief. Counsel for the applicant did not assist the Court with any authorities that show that delay in the committal process constitutes an exceptional ground.
19. In any event, it has been only 3months since the date of his arrest. There is no inordinate delay.

Conclusion

20. Having regard to the matters stated, it is my view that none of the matters raised, alone or in combination, constitute an exceptional basis on which bail can be granted.
21. The application is refused.

Orders

22. The Order of the Court is:
    1. The Application for bail is refused.

________________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State

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