Arura v Police [2021] PGDC 197; DC7054 (6 August 2021)

DC7054

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]
DCC NO: ... /2021.

In the matter of Bail Application pursuant to Section 42 (6) of the Constitution and Section 4 and 6 of the Bail Act

IN THE MATTER BETWEEN:

1. SIMON ARURA
2. FRANK GUADA
3. DENIS KASI

Defendant /Applicant(s).

POLICE/STATE.
Respondent(s).
.

Popondetta: Michael W. Apie’e

2021: July 30^th, August 06^th.

CRIMINAL LAW. Objections to Bail Applications-Bail Applications pending committal to Trial-Offence of Arson under section 436 of the Criminal Code Act-Onus of Proof-State/Police to establish/Show one or more of considerations under section 9 of Bail Act exist. Applicability of Section 4 (1) (b) of the Bail Act where no firearm is used in offence. Value of Property allegedly destroyed in Arson is relevant.
Cases Cited:
State v. Kelly Mua [1997] PGNC 51; N1548

References:
Constitution of Papua New Guinea
Bail Act of Papua New Guinea.

Representation;
Mr. E. Yawisa for the Applicants.
Senior Sergeant A. Pasitara for the Respondent.

RULING ON BAIL APPLICATION(S).

Background.

1. The Defendant were each and severally Charged with one Count of Arson of a Toyata Hiace 15 seater bus belonging to on Frederick Oyambo on the 14^th of May 2021 at At Embi village in the Oro –Bay LLG area off Ijivitari, Northern Province, Contrary to Section 346(f) of the Criminal Code Act chapter 340.
   
2. The Defendants were taken into custody and charged and thereafter brought to court on the 26^th of July 2021.
   
3. They now seek bail pursuant to Section 6 of the Bail Act whilst awaiting their Committal Process in the District Court.
   

Bail Application.

4. The Defendants rely on Their Application dated and filed the 27/07/21 and also their Individual Affidavits and also the Affidavits of their Proposed Guarantors Mr. Murray Koupa of Embi village Ward 10 Oro-Bay LLG and Mr. Samuel Kaisa of Ambogo village Ward 9 Oro-By LLG both in Ijivitari Northern Province, all filed deposed and filed on the 27/07/21.
   
5. The Applicants each filed their own affidavits and their Proposed Guarantors named above also filed an affidavit each.
   
6. The essence of Applicants grounds for the Application for bail are as follows;
   
   1. The Defendants with deny the Charge preferred against them.
      
   2. They are not used to incarceration.
      
   3. They are law abiding citizens.
      
   4. If allowed on bail they undertake to comply with the conditions under paragraph 13 of their various affidavits.
      
   5. They are will to pay K400.00 towards their bail or alternately whatever amount the Court is to reasonably set, and other conditions the court deems meet.
      
   6. They have proposed two Stable and reasonable members of their Community in the Oro-Bay LLG to guarantee their bail.
      

Prosecutions Response.

7. The Prosecution via Senior Constable A. Pasitara opposed bail and submitted a verbal Submission in opposition to the Bail Application on the date of the Application, and apart from the considerations in Section 9 of the Bail Act, the essence of the objections to bail are that;
   
   1. Defendants are not likely to attend or appear in court if allowed on Bail, as they were on the run after the offence until they were arrested by citizens and taken to Police.
      
   2. That the Defendant each and severally pose serious threats to the Complainant and his family.
      
   3. Defendant Daniel Kasi is believed to be in possession of a firearm. (unlicensed firearm)
      
   4. All these are matters raised from the bar table, no affidavits or Witnesses being produced to attest to these contentions.
      
8. Observations /Assessments. Having heard the Submissions in respect of this Bail Application, I make the following observations and assessments;
   
   1. Section 42 (6) of the Constitution provides as follows that;
      

‘A person arrested or detained for an offence (other than treason or willful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.’

2. The offence for which the defendants are in court carries an automatic right to bail as it is not cover by section 4 of the bail act.
   
3. Allegations made by the Prosecution about the Requirements under section 9 of the Bail Act, are mentioned as follows;
   
   1. The possession of a Gun or firearm by one of the defendants –Daniel Kasi, wherein threat of violence or actual violence might be held against the Complainant is they are allowed on Bail
      
   2. That the Defendants are a flight risk and might not attend court should they be allowed on bail given their flight prior to their arrest.
      
4. Regarding these Allegation’s I will observe as follows;
   
   1. First of all, No Evidentiary Affidavit or Witness were produced before the Court, disclosing any aggravating factors for the court to note on face value.
      
   2. Also, as per the unreported case of The State v. Kelly Mua N1548, as per Batari J, the Onus is on the State (In this case Police) to show or establish that one or more of the considerations under section 9 of the Bail Act Exists, in order for the Court to refuse bail.
      
   100. Even though Strict Rules of Evidence might not apply in regards to objections to Bail, it is still incumbent on the Opposing Party to produce oral or material evidence to sustain their objections to bail, rather than offering or proposing evidence from the bar table, such as in this case.
        
   4. Even any suggestion of Potential threat of violence or Potentiality of Flight if allowed bail, must be properly put before the Court by affidavits or people willing to come to court to testify on names, places, times and incidences rather than by statements from the bar table by Litigants, in this case the Police Prosecutor.
      
   5. The Standard of Proof in bail cases is that One or more of the contentions/elements in Section 9 exists pertaining to the Application before the Court. The Prosecution has not discharged that requirement in its objections to this Bail Application.
      
   6. The Proposed Guarantors relied on seem to be stable and reliable members of the Oro-Bay Community.
      
   7. Any concerns the Prosecution might have regarding the Defendants absconding bail or breaching any condition of bail could easily be cured in the opinion of this court with the imposition of appropriately tailored conditions of Bail.
      

9. Since I have ruled that Section 4(1) (b) of the Bail Act did not apply to this case, the Defendants will therefore be deemed at Law to have the automatic right to bail under section 42 (6) of the Bail Act in this instance.
   
10. In the final Analysis, the Court finds and Rules as follows that;
    
    1. The Objections to Bail are not made out.
       
    2. The Application for bail by the Defendants are made out.
       
    3. The Proposed Guarantors Messrs Murray Koupa of Embi village in Oro-Bay LLG and Mr. Samuel Kaisa of Ambogo village Ward 9 Oro-By LLG both in Ijivitari Northern Province, are hereby approved as guarantors for the Defendants.
       
11. Accordingly, the Court will allow bail and Order Conditions of Bail as follows;
    

BAIL ORDER(S).

1. The Defendants are each and severally allowed bail in the sum of K1000.00 each.
   
2. The Guarantors Mr. Murray Koupa of Embi village ward 10 and Mr. Samuel Kaisa of Ambogo village Ward 9 Oro-By LLG both in Ijivitari Northern Province are each approved as Guarantors for the Applicant with Non-Cash Sureties of up to K2000.00 each in the event of any breach of Bail Conditions.
   

CONDITIONS OF BAIL

3. The Defendants are further ordered as follows;
   
   1. They are hereby ordered not to Directly or Indirectly Interfere or attempt to Interfere with Witnesses or Potential witnesses against them in the matter before the Court.
      
   2. The Defendants are to Report to the District Court Clerk of Court Every Working Wednesdays between the hours of 9.am to 3.pm, until their matter is finalized before the District Court, their first Reporting to be next week Wednesday the 11/08/21.
      
   100. They are ordered not to Leave Popondetta or the Northern Without first obtaining permission from the District Court, until their matter is finalized before the District Court.
        
   4. They are not to openly consume liquor or alcoholic beverages or any other intoxicating substances whilst on bail.
      
   5. The defendants are to return to their various village when on bail and not to leave the Northern Province with the leave of Court until their matter is finalized and they are discharged from the strictures of this bail and its conditions.
      
4. The Approved Guarantors are to sign their Non-Cash Sureties and leave their Contacts including Postal, Electronic mail details and also Telephone and or Current Mobile Phone Numbers with the clerk of Court.
   
5. Once released on bail, the Defendants are to each attend every mention date of their case before the District Court without fail, and they are to next appear on the 20/08/21 before the District Court to answer their bail and be further dealt with according to Law.
   

Public Solicitors for the Applicant.
Police Prosecutions for the Respondent.