State v Ombul [2019] PGDC 2; DC3087 (9 March 2019)

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE
SITTING COMMITTAL JURISDICTION COM]

THE STATE
Informant/ Respondent
-V-

DONATUS OMBUL
Applicant/Defendant

Kimbe: B.TANEWAN

2019: 8 – 9^th MARCH

CRIMINAL LAW- Practice and Procedure – Bail Application – Applicant charges with Five charges of Willful damage to property and Serious Assault – Onus of Proof on Prosecution to Prove Existence of one or more Considerations under section 9 of the Bail Act – Onus Shifts to applicant to show why is detention is unlawful – circumstances warranting exercise of discretion to grant bail

Cases Cited:

Fred Keating v. The State [1983] PNGLR 13
Lance Moha –vs- the State [2009] N3998
Re Major Benjamin Edimani -v- the State (2016) CR 2-12 of 2016
Paul Louise Kysely –v- the State [1980] PNGLR 36
State v. Paul Tohian (1990) PNGLR 173, SC 385

Counsel:
Mr. Doko Kari, for the Applicant
Inspector Peter Singenawe, for the Prosecution

1. TANEWAN PM: This is a Bail application made pursuant to Section 42(6) of the Constitution and Sections 4 & 6 of the Bail Act. The defendant DonatusOmbul is charged with five charges , one count of Wilful and unlawful damage to property under section 444 (1) of Criminal Code Act, three counts of Without Lawful Occasion Armed in Public and Acting in a Manner to Cause Terror to three (3) persons under section 70 of the Criminal Code Act and one count of Serious Assault under section 341(1) (a) (i) of the Criminal Code Act.
   

Brief Facts

These charges stem from an incident that occurred on 2^nd March 2019 at Kimbe Police Station.It is alleged the defendant was armed with a pistol and threatened one Dianne Daniel, one Roselyn Laki and a Michael Ben and then consequently assaulted the said Roselyn Laki causing her harm. He was subsequently charged and detained in the police cells since 2^nd March 2019. He is now appearing from custody to apply for bail before the Kimbe District Court.These matters are still in the committal court thus the defendant has been in custody for more than a week and wishes to exercise his rights to bail thus this application.

Applicant’s Submission

2. In his application Mr. Ombul submitted through his lawyer Mr. Doko Kari of the office of the Public Solicitors that he has been in custody since his arrest on 2^nd March 2019. The applicant stated in his affidavit that prior to the incident and his arrest he was a police committal prosecutor for five (5) years and he feels unsafe in custody as people he prosecuted their matters are also in custody. He further depose in his affidavit that he has a permanent resident at section one (1) Police Barracks and will not discord bail when granted bail. He is willing to pay K500.00 as cash surety whilst his guarantors undertake to pay K200.00 each. Further the applicant stated that he has been sleeping on the solid concrete at the Police Cell for one (1) week and may affect his health. He wants courts to grant him bail as he will be denying the charges and needs to seek further legal advice.
   

In support of the applicant, two (2) guarantors also filed their affidavits. Basically the two (2) guarantors are: Pastor IssacWalbo and Paul Kaogowho deposed in their affidavits that the applicant is a law abiding, well respected person and they know him since childhood. They both pledge K200.00 as guarantors if court grants him bail.

3. Prosecution’s Submissions
   

In reply to the bail application, Inspector Peter Sangenave submitted that the court should consider certain provisions of the bail act particularly; section 9 (2), section 9(1)(c)(i)(ii)(iii) and s.9(1)(f).

The Prosecution stated to the Court that the applicant has an outstanding criminal matter before the National Court and was on bail when he committed these new offences therefore Section 9(2) of the bail Act applies.

He further submitted that these new offence constituted serious assaults and threats of violence against the three (3) victims. Further, the prosecutor submitted that thealleged offences were committed whilst the applicant was in possession of a firearm being a pistol loaded with a live load of ammunition.Inspector Sangenawe pointed out that if bail is granted these is likelihood the defendant will interfere with state witness as he is a serving Policeman and may interfere with state witnesses if granted bail. The Prosecution also submitted that if the Court is to grant bail, the amount proposed by the Applicant is low given the five charges he is being charged with. He submits for a higher amount of cash bail as well as the guarantors’ surety.

In reply to the prosecutors submission Mr. Kari submitted that even though considerations under section 9 of Bail Act are present, bail is a discretionary matter for the court. He further stated that, the suggested amounts in the application are just propositions and he submitted that it be left for the court to decide.

4. The Relevant Law
   

The relevant legislations are correctly pointed out by Mr. Kari are the constitution section 32 and 42 and Bail Act, Section 4 and 6. Below is the relevant provisionon Bail

Having considered the application and the submissions by parties, it is trite law that Bail is a discretionary matter. However, the court must exercise that discretion with caution and within the ambits of law.

Considerations under Section 9 of the Bail Act.

1. Offence Committed whilst Applicant on bail – section 9 (2)
   

Even though section 9 (2) provides that strict technical rules of evidence are not required. The prosecution must produce evidence by way of a sworn affidavit attaching previous charges or bail certificate with conditions.

In Lance Moha –vs- the State [2009] N3998, KarikoJ, held;

“While section 9 (2) provides that strict technical rules of evidence is not required, I am of the view that this section does not mean that no evidence is required. It is necessary that evidence is produced so that a bail authority can be satisfied on reasonable grounds as to those considerations comprising section 9(1). Because strict rules of evidence is not required, witnesses statements and documents could be handed up in court without being in form of or being attached to affidavits for example these matters may well include matters that would otherwise be objectable , such as hearsay evidence. But I do think section 9(2) intended that evidence from the bar table is sufficient. Otherwise, applications for bail could merely consist of submissions only without any evidence.”

In reMajor Benjamin Edimani -v- the State (2016) CR 2-12 of 2016 the State adduced evidence from the bar table and submitted that section 9 (2) allowed evidence to be tendered from the bar table. Defense Council objected arguing that although section 9 (2) flexes the strict technical requirements of evidence, it does not provide an exception to procedure for adducing such evidence which was required. To come in form of affidavit filed and properly served. It does not authorize evidence to be presented from the bar table. It however allows the court to be flexible in its assessment of evidence. The court upheld the objection and refused evidence being tendered from bar table.

There is no evidence from the prosecution to support the above proposition.

2. Serious Assaults, Threats of Violence & Use of Firearms – section 9 (1)(c)(i)
   

One or more of these grounds must be proved to warrant the exercise of the court’s discretion to refused bail.In Lance Moha –v- the State (2009) N3998, Kariko J said:

“The offence contemplated by Section 9 (1) (c) must be “the offence in respect of which the person is in custody’it is clear that the offence to be scrutinized is the offence for which the applicant has been charged and remanded in custody”

In this particular case there was serious assault and the Applicant was armed with a pistol and that is evident through the charges or information laid by the police against the defendant.

3. Likelihood of Interfering with State witnesses – section 9 (1)(f)
   

The Prosecution submitted that the Applicant is a serving member of the police force and thus he is likely to interfere with state witnesses.

In Paul Louise Kysely –v- the State [1980]PNG CR 36 at page 39, Wilson J considered the term likely as used in section 9 (i) (f) of the Bail Act and held that;

“....the word likely in phrase “likely to interfere with witness in section 9 (i)(f) to mean. Likely in the sense of a tendency with real possibilities. it does not mean more likely than not probably or very likely it is honor held in those terms. After having regard to all the case of Livingstone Thomas –v- Associated Newspapers Ltd [1969]90WN (PTI (N.S.W)223 at page 229 where Wallace P said;

The word likely can scarcely mean more likely that ‘not’ in section 5 if not only for the reason that the section does not say so. Similarly such suggestion as probability and very likely are to be rejected. I think the legislature has meant likely in the sense of a tendency or real possibility.”

Having regard all the evidence placed before him , his Honor Woods J, held that he was satisfied with the evidence that interference has already occurred and that there was a a possibility in that instant case that witness would be interfered with if the applicant was to be released on bail. Bail was refused. The views of Woods J, were considered and approved by the Supreme Court in State v. Paul Tohian (1990) PNGLR 173, SC 385, there the Court said;

“It must be stated again that the likelihood of interference with witnesses has to be more than just a possibility. In this case there is no evidence of any attempted interference with any Statewitnesses. The State merely states that there is a probability of interference with State witnesses and that is not what the law means. Therefore, the State has failed to support its objections under s. 9(1)(f) of the Bail Act with any evidence showing that there is a tendency or real possibility of the Applicant interferingwith State witnesses.”

There is absence of any evidence to show that the Applicant is likely or will interfere with State witnesses.

Given the circumstances of this particular case, I find the following;

(i) There is no evidence from the prosecutor from the Prosecution by way of sworn affidavits to show that the offence in which the defendant is remanded were committed whilst he was on bail.

(ii) There is evidence that the offence in which he is remanded constituted seriously assault and was allegedly committed, whilst he was in possession of a firearm.

(iii) There is no evidence of any interference of state witnesses or any attempted interference so as to find a conclude that is a real possibility of the applicant interfering with the state witnesses

Having made the above observations, there appears to be presence of a consideration under section 9 (1)(c)(i) of the Bail Act for the Court to refuse bail, being so, the onus now shifts to the Applicant to show why hisdetention is unjustified or unlawful.

In doing so I am led to consider the Applicant’s sworn affidavit of the filed on 7^th March 2019. In his second paragraph he deposes that he has been detained since 2^nd March 2019 to date of this application. In paragraph three of his affidavit he stated that he was detained for a week without being brought to Court.

Section 42 of the Constitution provides for persons charged with criminal offences to be brought to Court as soon as possible. Further to that the Constitution and the Bail Act, provides for that protection of citizens thus availing them with the right to bail.

The defendant’s prolonged detention without being brought to court after one week, in my view renders his detention to date unjustified and unlawful and he should be accorded his right to bail as interest of justice dictates.

Therefore, in the exercise of my discretion in accordance with case laws and legislation it is in the interest of justice to grant bail to the Applicant and I so do with the following conditions;

1. The applicant shall pay cash bail of K1, 000.
   
2. The appointed guarantors are Pastor Isaac Walbo and Paul Kaogo who shall pay cash surety of K300.00 each.
   
3. The defendant shall not interfere with state witnesses or possible state witnesses.
4. The defendant shall not commit any offences whilst on bail
   
5. The defendant must report to the Kimbe Police Station fortnightly Wednesdays anytime between the hours of 8;00am and 4:00pm
   
6. The defendant shall attend Court on all mention dates.
   
7. The defendant shall not take or consume any alcohol or any prohibited drugs.
   

Orders accordingly,