Gabe v Saun [2009] PGDC 59; DC921 (10 July 2009)

DC921

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF CRIMINAL JURISDICTION]

Case Number Comm. No 134/2009

BETWEEN

ALOYSIUS GABE
Informant

AND

JEFFREY SAUN
Defendant

MADANG: J KAUMI,M
2009:13th March – 10th July

CRIMINAL LAW – Bail Application – Application by applicant– Grounds or reasons for bail not substantiated by evidence – Strict rules of evidence do not apply – Long list of bench warrants following breach of bail terms considered - Court need to consider interest of society to deal with offenders according to law once before the court – Stricter and higher bail terms may now have to be imposed.

Cases cited:

Re Fred Keating [1983] PNGLR 133
The State v. Beko Job Paul [1986] PNGLR 97
The Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State (1997) N1641
Steven Lester v The State N2044
Francis Kensi Pele v The State [2000] PNGLR 100
John Raikos v The State (MP.206 of 2000) (Unrept and Unnumbered)
Jeffery Orasa v The State (MP.351 of 2000) (Unrept and Unnumbered)

References:

Bail Act 1977 Ch. 340
Constitution of Papua New Guinea
Criminal Code Act 1974 Ch. No.262

Counsel:

K. Naneii for the Applicant
Sgt P Nonao for the State

26 January, 2001

1. Kaumi, M: This is an application for bail under s. 42(6) of the Constitution and s.4 & 6 of the Bail Act (Chp.340) by the applicant and my judgment for an appreciation of the reasons and to meet the requirements of s.16 of the Bail Act. This is the judgment.

INTRODUCTION

2. The applicant was charged with armed robbery with threats of violence and detained at Beon CI in the Madang Province.

3. The applicant applied for bail under Section 42 (6) of the Constitution and Section 4 and Section 6 of the Bail Act Chapter 340.

RELEVANT FACTS

4. The applicants personally filed their applications for bail on the 25th of June 2009.

5. The application comprised of the Bail Application, supporting affidavits from the defendant, and two guarantors, Mr. Desmond Saun (defendant’s brother), and Mr. Martin Wintu, a Village Court Magistrate at Sisiak No1.

6. The allegation against the applicants is that, having being armed with a bayonet and knife on the 20th of February 2009, at about 2:15 pm the applicant and three others held up the driver and crew of a PMV bus registered number P.0345E,Route: 17A and stole a waist bag containing K15.00 in coins and fled. Subsequent police investigation resulted in the applicant being arrested and charged and placed in custody..

7. The grounds for his application are:-

a. The living conditions at the remand cell block (CIS) are unhygienic.

b. The cell block is crowded.

c. As a result of overcrowding, the spread of all kinds of skin diseases and other dangerous illnesses such as TB are very common thus life threatening.

d. No proper medical check up.

e. No balanced diet

f. Concern for wife and two children as well as his small business, as a result of this incident, my two children are affected and attending school regularly and my business is not being operated properly.

THE RELEVANT LAW

8. For general principle, I adopt Kandakasi J’s consideration of the relevant law in Jefferey Orasa v The State [1] at page 2-3which he summarized in this way:-

"1. A person arrested and charged with an offence is entitled under s.42(6) of the Constitution to bail at any time except for willful murder and treason but a bail authority still has the discretion to refuse bail "if the interest of justice otherwise requires";

2. The Bail Act (Chp.340) by s.9 sets out the circumstances in which bail may be refused;

3. The existence of one or more of the circumstances under s. 9 of the Bail Act may form the basis to refuse bail but that is not automatic. There is discretion in a bail authority to grant bail if an applicant for bail is able to show by appropriate evidence that his "continued detention in custody is not justified";

4. The burden to produce appropriate evidence to form a foundation for a grant of bail is not a difficult and complicated one because by virtue of s.9(2) of the bail Act excludes the application of the technical rules of evidence;

5. The list of circumstances under s.9 of the bail Act is not exhaustive and other factors such as the following may be taken into account before deciding whether or not to grant bail:

a. The applicant being an habitual criminal;

b. Whether the applicant is a trustworthy person and will meet any bail terms that may be imposed;

c. The number of bench warrants outstanding for bail jumpers for the kind of offence the applicant is held in custody for;

d. The costs and expenses the society may be put through in trying to bring the applicant to justice if he breaches his bail terms which may mean delays in a speedy trial which may have the risk of the State loosing vital evidence supporting the charge against the applicant;

e. The expenses and the trouble the society through the Police Force, has been put through to secure the applicant’s arrest and incarceration;

f. Whether the proposed guarantors are serious in their proposal having regard to the amount of money they are able to pay in sureties;

g. Whether the amount of cash bail proposed has any relative correspondence to the offence with which he has been charged; and

h. Whether the applicant would have already served his penalty without a trial by reference to the offence with which he has been charged and the possible date for his trial.

That came from a reading and consideration of the judgements in The Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State [2] The State v. Beko Job Paul [3]; Re Fred Keating [4]. It also came from my own most recent judgments in Steve Lester v. The State [5] John Raikos v. The State [6] (unreported and unnumbered decision I delivered on 22 January 2001 here in Lae too) and Francis Kensi Pele v. The State (unreported and unnumbered decision I delivered today) [7]. "

9. Section 6(2) of the Bail Act provides that:

"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."

THE PRESENT CASE

10. Applying the principles discussed above to the present case, I refuse the application. My decision is based on a number of factors.

11. First no evidence was produced to support the grounds advance for the application. It was not in my view, a difficult thing to do because to technical rules of evidence are excluded by virtue of s.9(2)of the Bail Act, but the applicant failed to take advantage of that.

12. Secondly, the offence the applicant allegedly committed involved dangerous or offensive weapons, namely a bayonet and a knife which were used to threat serious assault or danger to the victims if they failed to comply with orders to and for the main victim to surrender the takings of the bus. This placed the application under s.9(1)(c) of the Bail Act. That meant that the application could be refused unless the applicant was able to show by appropriate evidence, that his continued detention was no justified going by the Supreme Court decision in Re Keating (supra) at pages 138 and 140, per Kapi DCJ and Andrew J. respectively.

13. This led to the third ground for a refusal of the application, the applicant failed to produce any evidence and show that his continued detention in custody was unjustified.

14. Fourthly, the amount of money proposed for cash bail and surety was a mere K100 and K50 respectively, which I consider insignificant, both in terms of the nature of the offence with which the applicant is charged and the need to show some seriousness with the applicant’s need to comply with any bail terms that may be imposed. A higher cash bail and surety may make an accused person who is granted bail to comply with the terms of the bail, if any, to protect or save guard against their forfeiture. This may eliminate the risk of him breaching his bail conditions, which is a risk a bail authority has to consider and if satisfied that there will be no breach of bail conditions, bail may be granted.

15. In Steve Lesterv. The State [8] at page 3 Kandakasi. J said

"As was stated by Akuram J., in The Matter of an Application for bail by Sergeant Pokou Steven & Others v. The State [9] and Wilson J., in The State v. Beko Job Pau[10] the list of circumstances under s. 9 of the Bail Act do not necessarily limit the factors a bail authority can take into account to decide whether or not to grant bail. Other factors may be taken into account in order to determine what does "the interest of justice otherwise requires". In other words, bail authorities should not proceed to grant bails as a matter of course. Instead as already stated above, it should carefully consider the interest of the applicant to be left out on bail and the interest of the society to have offenders dealt with according to law once brought before the Courts in a manner that is prompt, effective and less expensive. This may involve the bail authority taking into account all of the factors under s. 9 of the Bail Act and such other factors the bail authority considers appropriate before deciding whether or not to grant bail".

16. In the immediate case I have considered all of the above as well as the need to be more cautious in view of the long list of outstanding bench warrants for people who have been granted bail and have breached the terms of their bail.

17. In the Madang Province alone as at 06/07/2009 there were 399 Bench Warrants outstanding of which 106 were for Armed Robbery dating back to 1987.

18. The trend in this province seems to be that a grant of bail is taken as a one way ticket into oblivion and are never seen again in Court.

19. They have been able to abscond bail because bail has been readily granted without the Bail Authority carefully considering the question of whether the applicant for bail was a person who could be trusted to faithfully meet any conditions that may be imposed for his bail.

20. This has been possible because the terms more particular the cash bail amounts and sureties have been almost negligible.

___________________________

Paraka Lawyers for the Applicant
Police Prosecutor for the State

1. [2000] MP351
2. [1997] N146
3. [1986] PNGLR 97
4. [1983] PNGLR 133
5. [2000] N2044
6. [2000] MP206
7. [2000] MP340
8. Supra Note 5
9. Supra Note 2
10. Supra Note 3