Losein v Police [2021] PGDC 230; DC7090 (13 December 2021)

DC7090

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CRIMINAL JURISDICTION]
MP 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. RICHARD LOSEIN
2. NIGEL WILLIE
3. BOTI ROBINSON

Defendant /Applicant(s).

POLICE/STATE.
Respondent(s).

Popondetta: Michael W. Apie’e

2021: December 10^th, 13^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. Objections not substantiated by provision of evidentiary material. Value of Property allegedly destroyed in Arson is relevant.

Cases Cited:
Vela Wari Vele v. The State [2003] PGNC 2: N2701
Talpa v. the State [2016] PGNC 173; N6367
State v. Kelly Mua [1997] PGNC 51; N1548
Kou Dua v. Police [1984] PNGLR 22

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

Representation;
Mr. Tony Sua for the Applicants.
Senior Sergeant Waimona for the Respondent.

RULING ON BAIL APPLICATION(S).

Background.

1. The Defendant were each and severally Charged with 41 x Counts of Arson contrary to Section 436 (a) of the Criminal Code Act as read in conjunction with section 7 and 8 of the Criminal Code Act as Principal Offenders.
   
2. Each of the information’s pertaining to the 41 Counts relates to Buildings and Premises owned by different people/Individuals at the Binadere Compound at Double Cross Bridge at Sangara in the Sohe District of the Northern Province.
   
3. By virtue of the Provisions of Law laid against the Defendants, it is apparent these defendants did not actively participate in the actual setting of fire to the buildings and premises but rather they by their presences in company of others that did this crime are charged as Principal Offenders pursuant to sections 7 and 8 of the Criminal Code Act.
   
4. The Applicants with a Fourth person not covered by this bail application appeared before me on Friday the 10/12/21 and were arraigned on the 41 counts and their substantive matter further adjourned for mention to the 05^th of January 2022.
   
5. This court was also led to believe then that several more people were likely to be arrested in relation to these charges within the coming days and weeks.
   
6. The Defendants were taken into custody at various dates as follows. Richard Losein on the 29/11/21, Nigel Willie on the 29/11/21 and Botty Robinson on the 27/11/21 and thereafter brought to court on the 10/12/21 for arraignment, at the most after almost two weeks in custody.
   
7. They now seek bail pursuant to Section 6 of the Bail Act whilst awaiting their Committal Processes in the District Court.
   

Bail Application.

8. The Defendants rely on Their Various Applications dated and filed the 08/12/21 and also their Individual Affidavits and also the Affidavits of their Proposed Guarantors as follows;

Richard Losein:

1. Mr. Nohora Akai of Oro Provincial Administration PMB Popondetta, Ph: 71641346
2. Mr. Rodney Viambu Provincial Administration PMB Popondetta, Ph: 71016470.
   

Nigel Willie:

3. Mr. Jonathan Kawaro of Mendi-Tari Compound, Ward 3 Popondetta Urban LLG, PMB Popondetta, Oro Province-Ph: 72781190.
4. Mr. Clive Jambarata, Popondetta LLG, Popondetta Oro Province Ph: 70244499
   

Botty Robinson.

5. Mr. Francis Dira, Oro Provincial Administration, PMB Popondetta, Oror Province Ph: 73424040/6297345.
6. Mr. Max Dira, Popondetta Urban LLG Po. Box ....Popondetta Oro Province Ph: 70244499
   

9. The essence of Applicants grounds for the Application for bail are as follows;
   
   1. The Defendants rely on the Constitutional Presumption of Innocence until proven guilty by a count of Competent Jurisdiction, pursuant to Section 37(4) (a).
      
   2. They further claim their constitutional right under Section 42(6) and Section 6 of the Bail Act to be allowed on bail pending the finalization of their Committal matters before the District Court.
      
   3. They also each and severally undertook to stringently comply with any and all conditions to be imposed in respect of their bail should they be allowed on bail.
      
   4. They have each and severally proposed two Stable and reasonable members of their Community in Popondetta to guarantee their bail as listed above in Paragraph 8 of this ruling.
      

Prosecutions Response.

10. The Prosecution via Senior Sergeant Waimona opposed bail and submitted a verbal Submission in opposition to the Bail Application on the date of the Application, and the essence of the objections to bail are that;
    
    1. Defendants were in the company of a rowdy and aggressive mob of people who went and threated people, looted and pillaged people’s houses and then burn such houses down.
       
    2. The Prosecution also further relied on a ‘Statement of Facts’ to alleged that there were three firearms used in the commission of these offences, however such allegations is not substantiated with Witnesses affidavit or other evidentiary maters such laying of information against the relevant Defendant.
    3. hat the 41 x victims and their families are still traumatized by their losses and could potentially pose threats to the Defendants.
       
    4. However, Senior Sergeant Waimona admitted that bail was a discretionary matter and if the court was inclined to grant bail, then appropriate monetary conditions commensurate to the number of houses burnt down and other appropriate conditions ought to be imposed on the applicants and their guarantors.
       
11. 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 in this case 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 three firearms by people who were at the scene of the crime especially the Defendant Richard Losein is alleged to have being holding onto a pistol, wherein threat of violence or actual violence might be held against the Complainants if they are allowed on Bail
      
   2. Many other people might be arrested and also, there might be some personal safety issues for the Defendants if they are allowed on bail.
      
4. Regarding these Allegation’s, I will observe as follows;
   
   1. A Bail Application is a Process of law which still carries with it a Burden of Proof on the Prosecution if and when they oppose the Application for Bail to produce evidentiary matters to prove its contentions against the Defendant(s) application for bail.
      
   2. First of all, apart from the Statement of Facts that came with the Bail Application, No Evidentiary Affidavit or Witness were produced before the Court by the Prosecution, disclosing any factors relied on to oppose bail for the court to note on face value.
      
   100. The Prosecution has not specifically pleaded any of the consideration under Section 9 of the bail act, but rather relies on the Statement of Facts proffered by the Informant and also the Projections or belief by the Informant that many other people are to be arrested soon to oppose this application.
        
   4. In the Supreme Court Case of Fred Keating v. The State [1983] PNGR133 per Kidu CJ, Kapi DCL and Andrew J asthey then were, established the general guidelines for refusal or granting of Bail by courts/Bail Authorities and the guidelines relevant to the case at hand are as follows;
      
      1. The Grant or Refusal of Bail Pursuant to Section 9(1) of the Bail Act is Discretionary in all cases other that Willful murder and Treason. This is correctly cited by Sgt Waimona
         
      2. Where one or more of the considerations in Section 9 (1) are proved bail should be refused unless the Applicant shows cause why his detention in custody is not justified.
         
   5. In the case of Vela Wari Vele v. The State [2003] PGNC 2: N2701 Mogish J observed that even an affidavit deposed and filed by an investigator without reference to real witnesses or evidentiary matter to oppose bail is not sufficient for the court to refuse bail. Mogish J stated ‘ It is the existence of Substantial Ground for the Belief, not the belief itself which is the crucial factor. It is not enough for the State Through the Investigating officer to State its Beliefs; it is Oblige to call or rely on credible evidence to substantiate its belief’
      
   6. In the case of Talpa v. the State [2016] PGNC 173; N6367 Liosi J in Kundiawa echoed the above sentiment by Mogish J in the Vela Wari case to reject the Objections by the Public Prosecutors to grant bail in a Willful murder case because the State Prosecutor Involved was not relying on Affidavits or other evidentiary matters in mounting his objection to the Bail Application.
      
   7. Also, as per the unreported case of The State v. Kelly Mua N1548, Batari J stated, ‘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.’ And such to be by the Provision of actual Evidentiary matters.
      
   8. Even though Strict Rules of Evidence might not apply in regards to objections to Bail, it is still incumbent on the Opposing Party (Prosecution) to produce oral or material evidence to sustain their objections to bail, rather than offering or proposing evidence from the bar table.
      
   9. 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.
      
   10. 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.
       
   11. Even when such is established, the ultimate decision on Bail is still a discretionary matter for the Court The Prosecution has not specifically discharged that requirement in its objections to this Bail Application.
       
   50. The Court in the Talpa case above, also considered the Applicants medical condition and decided to grant bail even despite the existence of the consideration in section 9(1) of the bail Act.
       
   13. In the current case, the Defendants are all Gainfully engaged members of the Popondetta Society as follows in that Richard Losein is a Senior Public Servant with Oro Administration. Nigel Willie is the Current Town Mayor for Popondetta, while Botty Robinson was the previous Town Mayor for Popondetta and a senior citizen of Popondetta.
       
   14. I am not convinced that that the ‘Interest of Justice’ requires the Defendants continued incarceration as per section 42(6) of the Constitution.
       

12. All matters that come before the Courts must be considered on their own merits and the following facts are noted in this case;
    
    1. The Applicants were charged for the Offences alleged in conjunction with Section 7 and 8 of the Criminal Code.
       
    2. The Applicants are all gainfully engaged members of the Popondetta Community and it has not been suggested that they are a flight risk or that they might reoffend.
       
    3. The Court is not Convinced that their continued detainment is in the Interest of Justice.
       
    4. No independent Evidentiary material has been presented to disqualify each of the Applicant from their right to Bail.
       
13. 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.
    
14. I am not convinced as it is, that their Application for Bail should be refused at this time.
    
15. 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 various Proposed Guarantors for the Applicants listed in Paragraph # 8 above are all approved and confirmed as guarantors for each of the Applicants.
       
16. The Court is also mindful of the nature of the Charges preferred against the Defendants as regards he following matters
    
    5. The Potentiality of many other people being brought in and charged on the same charges.
       
    6. The gravity of the case in that 41 x people/families lost their properties dwellings and their very lives drastically affected.
       
    7. There remains the need for parity to be struck between the Defendants right to bail and the Interest of justice and the victim’s peace of mind regarding the processes of Court and the Law at this early stage in the Committal Proceedings.
       
17. 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 K3000.00 each.
2. Each Guarantor for Each of the Applicants will pay K1000.00 each as surety for their Guarantee.
3. Total for each Defendant/Applicant is a t K5000.00 total.
   

CONDITIONS OF BAIL

4. The Defendants are further ordered as follows;
   
   2. 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.
   100. 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 this week Wednesday the 15/12/21.
   4. They are ordered not to Leave Popondetta or the Northern Province Without first obtaining permission from the District Court, until their matter is finalized before the District Court.
   5. They are not to openly consume liquor or alcoholic beverages or any other intoxicating substances whilst on bail.
   6. The defendants are to return to their various residences in Popondetta when on bail, and a further ordered to remain within their premises between 7.00pm to 6.00am each evening for reason of their own safeties.
      
5. The Approved Guarantors are to sign their Bail Sureties and leave their Contacts including Postal, Electronic mail details and also Telephone and or Current Mobile Phone Numbers with the clerk of Court.
   
6. 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 05/01/22 before the District Court to answer their bail and be further dealt with according to Law.
   

Police Prosecutions for the State.
Sua and Sons Lawyers for the Applicants.