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Alinea v The State [2022] PGNC 35; N9434 (15 February 2022)

N9434

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 39 OF 2022

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

BETWEEN:
RYAN ALINEA

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Ganaii, AJ
2022: 31^st January, 01^st & 15^th February

CRIMINAL LAW - Bail – Charge of Possession of Dangerous Drug–Section 3 and Schedule I of the Dangerous Drugs Act - Among other considerations, possession of Methamphetamine is not an offence known by law – Section 37 (2) of the Constitution - Interest of justice requires that bail be granted – Bail is granted

Cases Cited

Felix Kange v The State [2016] PGSC 51; SC1530
Fred Keating v State [1983] PNGLR 133
Malaki Kongo v State (1996) N1544
Paul Loiuse Kysely v State [1980] PNGLR 36 at [39]
Philip Maru & Arua Oa -v-The State (2001) N2042
Re Henry Mane [2009] N5472
State v Pang [2021] PGDC 189, DC7045 (16 December 2021), at [2] and [6]

Legislations Cited

Constitution of PNG, Sections 42 (6); 37 (2)
Bail Act, Chapter No. of 340 of 1977, Sections 4, 6, 9
Bail Rules of 2021
Dangerous Drugs Act, Chapter No 228 of 1952, Section 3 and Schedule 1

Articles

Herriman, B and Seselja, Edwina (2021, 24^th November), Pacific Beat. Retrieved from web page https://www.abc.net.au/news/2021-11-24/australian-jamie-pang-png-hotel-alleged-meth-lab-drug-bust/100643446

Counsel

Mr. Nathan Pilamb, for the Applicant
Mr. Siminji, for the State

RULING ON AN APPLICATION FOR BAIL

15^th February, 2022

1. GANAII AJ: The application for bail was heard on the 31^st of January 2022. The ruling was ready to be delivered on the 01^st of February 2022. However, due to medical grounds and being put into ten days isolation, I was unable to deliver the ruling until today. I do so now.
   

2. This is a ruling on an application for bail. At the time of hearing, the matter was pending the applicant’s first appearance at the District Court.

3. Relying on a Police Charge sheet, instead of an Information laying the charge, which was not available at the time of making of this application, Mr. Pilamb of learned counsel for the applicant, submitted that the applicant Ryan Alinea has been charged with one count of Possession of Dangerous Drug, pursuant to section 3 of the Dangerous Drug Act (DDA)^[1]. The maximum penalty for the offence is a term not less than three months and not exceeding two years.

4. The Brief Statement of Facts also was not available at the time of hearing of this application. On instructions and upon reliance on the charge sheet, Mr. Pilamb submitted that the allegations are that the accused was suspected of dealing with or possessing dangerous drugs. On the 28^th January 2022, at about 5:30 pm, he was on the road, driving with his family when the Police pulled him up. They searched his vehicle and found two grams of methamphetamine. He was arrested and charged for possessing a dangerous drug.

Grounds for Bail

5. The applicant formally applied for bail relying on the Bail Forms in the Bail Rules 2021. His grounds for bail are his medical condition and as I understand the submissions by counsel, a denial of the charge. Mr. Pilamb also argued that the drug methamphetamine is not a dangerous drug according to the schedule 1 of the DDA. Consequently, the accused is not charged for an offence known by law.

6. Mr. Pilamb made further submissions that according to the Certificate of Refusal of Police Bail, the Prosecutions have not shown that the applicant is a fight risk and that there is a real likelihood that he will interfere with the state witnesses or commit an indictable offence whilst on bail.

Prosecutions Reply

7. State Prosecutor Mr. Siminji objected to the application for bail on the basis that section 9 considerations are present, namely that applicant is unlikely to appear at trial, that he is likely to interfere with state witnesses and that a dangerous drug is allegedly involved.

8. Mr. Siminji also argued that the first medical report is outdated. The applicant was examined on the 04^th October 2018, which is three plus years ago. He submitted that the photograph attached to the application for bail only show the arm of a patient and the reading on the blood pressure machine. The photograph does not show whose arm it is and whose readings and results are shown. He also submitted that the current results for the applicant’s medical condition, that is showing diagnosis of hypertension, diabetes mellitus and gout, do not show any urgency whereby he is needed to be urgently seen by a Doctor. For these reasons, State submitted that the applicant has not shown sufficient cause why bail should be granted.

9. On the argument that the drug methamphetamine is not covered under the DDA, and therefore is not an offence known by law, State submitted that the methamphetamine is a narcotics substance under the Customs Act, and therefore is a prohibited item. Consequently, State submitted that it’s use and possession becomes unlawful.

Law on Bail

10. The applicable legal provisions on bail are section 42 (6) of the Constitution and section 4, 6 and 9 of the Bail Act.

11. Section 42 (6) states:

‘’A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.”
12. Section 3 of the Bail Act give effect to s 42 (6) of the Constitution.

13. Section 6 of the Bail Act says:

“(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.

(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.

(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section 9”.

14. The Constitutional provision (s 42 (6)) avails bail at all times to all persons
charged with a criminal offence except for wilful murder and treason where the right to bail, although available, is not automatically granted as of right to those charged with wilful murder (or treason).

15. Section 9 (1) (a) – (j) of the Bail Act sets out the grounds on which bail
may be refused if one or more of the considerations is present. However, the guidelines under s 9 is not exhaustive as there are other considerations such as the interest of justice to refuse bail or discretion of the bail authority to grant bail if exceptional circumstances can be shown by the applicant. See Re: Fred Keating (1983) PNGLR 133.

The onus in bail applications

16. In Re Fred Keating (supra), the prosecution has the onus of proving the presence of the elements of section 9 of the Bail Act. If one or more considerations are present, it does not automatically follow that bail should be refused. The next question becomes one of whether the applicant’s continued detention is unjustified. According to Malaki Kongo v State (1996) N1544, the applicant must show ‘sufficient cause’ why his continued detention is not justified. On whether the continued detention of the applicant is unjustified, the onus then shifts to the accused or the applicant. What may amount to an unjustified detention is assessed on a case-by-case basis. The Bail Act does not say what matters the court should take into account after finding that the section 9 considerations are present but it becomes a matter of discretion. The court is entitled to take into account all the prevailing circumstances of the case and then determine whether the interest of justice require bail to be granted. Principle in the case of Re Henry Mane [2009] N5472 is applied.

Application

17. The applicant advanced the following reasons for seeking the grant of bail: medical condition; innocence and that he is charged for an offence not defined in law. Through his lawyer he argues that the Police have failed to show that he is unlikely to appear for his case or that he will abscond, he will interfere with witnesses and he may commit an indictable offence whilst on bail.

18. The State opposed bail on the basis that the alleged crime involves the possession of dangerous drugs, a consideration present under section 9 (1) of the Bail Act. State further argued that the applicant has not demonstrated that his medical conditions are life threatening. State Prosecutor also relied on the same reasons advanced by the Police in refusing bail and objected to bail in this instance. State argued that the applicant is a flight risk and may interfere with witnesses.

19. I respond to the submissions in the following way.

Medical condition

20. On the medical grounds, I accept the state’s submission that the medical report is outdated, being produced three plus years ago. Whilst a more recent medical report showed that the applicant suffers from hypertension and other medical conditions such as diabetes and gout, there is no evidence of any emergency and or life-threatening situation. I am not satisfied that bail can be granted on the medical grounds advanced.

Proclaimed Innocence

21. Innocence or guilt are matters for trial proper. The principle underlying this argument is that a legitimised process of arrest and charge had taken its course, and the appropriate trial court will test whether or not the defence is available Maru and Oa v State (2001) N2042 applied. To raise innocence now as a basis for bail is premature.

22. In many National and Supreme Court decisions, grounds of innocence were held to be irrelevant for bail. In Felix Kange v The State [2016] PGSC 51; SC1530 (2 September 2016) the Supreme Court, said this:

“..... The applicant’s proclamation of his innocence is irrelevant to his bail application and should be rejected. A similar result was arrived at in the case of Dr Theo Yausase v. The State. There Dr. Yausase was charged with wilful murder. Pending his trial in the National Court, he applied for bail. One of the reasons he advanced was his innocence. The Court rejected the proclamation or the applicant’s claim of innocence as irrelevant in a bail application.”

23. I am well guided by the wisdom of the above reasonings. For similar reasons, I say that whilst the applicant remains innocent until proven guilty, and whilst he raises that he may have a good defence in law, there is no similar presumption available in bail applications consideration for grant of bail for a serious charge of wilful murder.

Likelihood of Interference with State witnesses

24. The State has the onus of showing that the applicant is likely to interfere with state witnesses. Section 9 (1) (f) of the Bail Act says that if the applicant is likely to interfere with State witnesses, then bail must be refused. In Paul Loiuse Kysely v State [1980] PNGLR 36 at 39, the court considered the term ‘likely’ in the phrase ‘likely to interfere with witness’ to mean a tendency with real possibility. It does not mean more likely than not or probably or very likely. Some indication that the applicant may interfere with a witness is where he had already interfered or attempted to interfere with a state witness. In this instance I do not find that the State had established that the applicant has a real possibility to do so.

Abscondment

25. Evidence showed that the applicant is in country on a valid work visa. The current work visa is for three years. He has been in the country for seven months. He is the operations manager of BKJ limited. His passport and visa have been confiscated by the Police. According to submissions, his family is here with him in country. On that basis, I do not think he is a flight risk.

Is Being in possession of Methamphetamine an offence under the law?

26. Schedule 1 of the DDA does not include methamphetamine as a dangerous drug under the DDA. Consequently, the section 3 offence provision of the DDA does not apply. The applicant cannot be charged under this law. The Constitutional law provision of section 37 (2) guarantees that right to any person arrested, a right to full protection of the law. This provision states:

“37. PROTECTION OF THE LAW.

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.”

27. Consequently, by operation of section 37 (2) of the Constitution, the applicant cannot be charged for possessing methamphetamine, as a dangerous drug under section 3 and Schedule 1 of the DDA where possession of that substance is not included in the schedule and therefore not prescribed by law as an offence.

Position of the Police

28. In bail applications, strict rules of evidence do not apply. Relying on anecdotal evidence, it seems to suggest that the position of the Police hierarchy in relation to arrest and charge of persons in possession of, producing and using methamphetamine within jurisdiction is that the Police will not arrest and charge someone for these until and when changes are made to the existing DDA^[2]. Reference to use of anecdotal evidence in criminal proceedings are found in State v Benny [2018] at paragraph 84 when Toliken J was referring to whether long sentences actually deter offenders and Rose v Acting Solicitor General [2007] PGNC 147 at paragraph 64 on a contempt charge when Sakora J was referring to an increase in such charges. I also rely on anecdotal evidence and the case if State v John Pang [2021] PGDC 189, DC7045 (16 December 2021), at [2] and [6] in saying that the Police have made their position known that they will not charge for possessing, using and producing methamphetamine unless the laws are updated.

29. In so far as the law is concerned, the Police hierarchy’s position based on this anecdotal evidence is consistent with section 37 (2) the Constitution. Persons arrested and charged are entitled to the full protection of the law. Until and when amendments are made to the existing DDA, no person can be arrested for an offence of possessing, using or producing methamphetamine, a drug not named in schedule 1 of the DDA and for an offence not prescribed by law.

30. Consequently, I say that the arrest and charging of the applicant in this instant, for allegedly possessing only two grams of methamphetamine is outrages, and in my respectful view, a show of lack of command and control within the Police Force. This makes me wonder whether the arresting officer Richard Koipa of the Boroko Police Station is aware of the stand made by his superiors and the law as it stands. The decision to arrest and charge is therefore inconsistent with section 37 (2) of the Constitution. Until and when the laws are amended, there is no offence of possessing or using methamphetamine in the country under section 3, and schedule 1 of the DDA.

Conclusion

31. In conclusion, I am not satisfied on the evidence that the acts constituting the offence in respect to which the applicant is in custody for, come within section 9 of the Bail Act, namely, having or possessing a dangerous drug. Methamphetamine is not a dangerous drug for the purposes of section 3 and schedule 1 DDA. The offence of possessing Methamphetamine is therefore not an offence known by law.

32. Further, based on the above discussion, I am also not satisfied on the evidence that the Police and State Prosecutor have shown that the applicant is likely to interfere with State witnesses, a consideration under section 9 (f) of the Bail Act or that he is a flight risk.

33. The principle of interest of justice connotes to fairness. Fairness requires the court to be mindful of the fact that possessing methamphetamine is not an offence punishable by law in PNG. The DDA is long overdue for repeal and amendment. Considering all the above discussion, the interest of justice therefore dictates in this circumstance that bail should be granted.

34. I also say this in closing. The Police may reconsider their decision. The applicant’s lawyer is at liberty to make the necessary applications for discharge.

35. For the above reasons, the application for bail by Ryan Alinea is granted with the following conditions:

1. Applicant shall pay a cash bail sum of One Thousand Kina (K1, 000).
2. Applicant shall surrender his Philippines passport and Information on his PNG Work Visa to the National Crimes Court Registry.
3. Applicant shall reside at Section 64, Allotment 128, Leander Street, Boroko; National Capital District.
4. Applicant shall not leave the National Capital District without the leave of Court;
5. Applicant shall not commit any offences whilst on bail.
6. Applicant shall not interfere with state witnesses whilst on bail.
7. Applicant shall attend to court as and when his case is called.
8. Applicant shall report to the National Court Registry, every Mondays between the hours of 9: 30 am to 3:30 pm.
9. Mr. Bernard Eliuda and Ms. Michelle Enriquez are each appointed as guarantors. Both shall pledge surety sums of K500 each. In the event that bail is breached, these sums of monies will be forfeited to the State.

Orders accordingly.

________________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent

^[1] Chapter No 228 of 1952

^[2] Reference is made to an article published on line in the Pacific Beat by reporter Bethanie Herriman and Edwina Seselja, posted on Wednesday 24^th November 2021 at web page https://www.abc.net.au/news/2021-11-24/australian-jamie-pang-png-hotel-alleged-meth-lab-drug-bust/100643446 and the case law of State v Pang [2021] PGDC 189, DC7045 (16 December 2021), at paragraphs 2 and 6 where facts showed alleged possession of methamphetamine, the offender was arrested, charged, found guilty and sentenced only for illegally possessing firearms and not producing, using and possessing methamphetamine.