Bob v Mick [2022] PGDC 3; DC8000 (20 January 2022)

DC8000

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

COM NO 28-31 OF 2021

BETWEEN:

MIRIAM BOB
[Informant]

AND:

QUINNIE MICK
[Defendant]

Waigani: Paul Puri Nii

19th January 2022

COMMITTAL PROCEEDINGS: -Charges- Deprivation of Liberty-Section 355(a)-Armed Robbery-386(1)(2)(a)(b)-Threatening-359(a) and Unlawful assault- 340 of the Criminal Code Act 1974, Chapter No. 262. Police detectives should supply prima facie balanced evidence supporting all elements of the charges against the Defendant.

PRACTICE AND PROCESS: Application to revoke police bail under Section 4 of the Bail Act. Dangerous weapons used by the Defendant to commit the allegation. Firearms never Used-Application refused.

PNG Cases cited:

Nil

Overseas cases cited:
Nil

References

Legislation

Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40
Bail Act

Counsel

Police Prosecutor: Joseph Sagam For the Informant
Edward Sasingian: Sasingian Lawyers For the Defendant

DECISION TO REVOKE BAIL

19^th January 2022

INTRODUCTION

NII, P. Paul Magistrate. My declaration on an Application to revoke Bail filed pursuant Section 4 of the Bail Act. Defendant was arraigned on 10^th January 2022 for the allegations of Deprivation of Liberty, Armed Robbery, Threatening and Unlawful assault against another female. Defendant is on police bail, however, after she was arraigned the prosecutor made an application to revoke the Defendant’s bail on the basis that Police had no powers to grant bail for offense involving Armed Robbery. Subsequently now is my ruling on the application to revoke police bail.

INSTANTANEOUS OF FACTS

1. Defendant is identified as Quinine Mick and aged 24 of Kupin village of Ambun in the Enga Province who’s married to person called Sengol Parkop and they both reside at Gerehu in NCD. Police statement of facts says on Tuesday 30^th November 2021 at 9am to 1pm, Defendant used her husband’s phone to message the victim pretending to be her husband and asked her to meet with him (which is the Defendant’s husband) at Shangri La Motel at Waigani, NCD. Police allege that the victim without any second thoughts made her way to the location and there she was approached by several people from behind and started attacking her. Police further says Defendant was taken away in a car and was driven around in certain parts of NCD and repeatedly in an attempt to find out whether the victim was having an affair with the Defendant’s husband.
2. Police moreover says, Defendant and several men threatened to harm her with small knives and also attempted to remove her trousers in the car. Defendant also called some people that she was bringing a pig for them to kill and eat referring to the victim. Although the victim begged them to stop their accusations as she was innocent, they did not listen and continued their assault until she was rescued by police and was taken to the Pacific International Hospital for medication. On 17^th December 2021, Defendant was arrested and charged for the 4 allegations.
   

CHARGES

2. Accused is charged with four charges under the Criminal Code Act
   

“355. DEPRIVATION OF LIBERTY.

A person who unlawfully–

(a) confines or detains another in any place against his will; or

(b) deprives another of his personal liberty,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.”

“386. THE OFFENCE OF ROBBERY.

[1](1) A person who commits robbery is guilty of a crime.

Penalty: [2]Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2)[3] [4]If a person charged with an offence against Subsection (1)–

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life”.

“359. THREATS.

A person who threatens to do any injury or cause any detriment, to another person with intent–

(a) to prevent or hinder the other person from doing an act that he is lawfully entitled to do; or

(b) to compel him to do an act that he is lawfully entitled to abstain from doing,

is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.”

“340. ASSAULTS OCCASIONING BODILY HARM.

(1) A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years”.

ISSUE

3. Whether the Defendant’s bail would be revoked and whether or not there was firearm used in the commission of the crime?
   

THE LAW OF BAIL

4. ONLY NATIONAL OR SUPREME COURT MAY GRANT BAIL IN CERTAIN CASES.

[5](1) A person–

(a) charged with wilful murder, murder or an offence punishable by death; or

(b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or breaking and entering a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence,

shall not be granted bail except by the National Court or the Supreme Court.

(2) For the purposes of Subsection (1), “firearm” includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile.

APPLICATION TO REVOKE BAIL

4. Police prosecutor based on Section 4 of the Bail Act and asked the court to revoke police bail since dangerous weapons were used. Prosecutor said police had no authority to grant bail for offenses in which dangerous weapons were used.
   
5. The Bail Authority said he authorized bail because the Defendant was a lone female, the holding cell was crowded and the case was a special one.
   
6. Defendant's Lawyer said under Section 4 of the Bail Act, there should be evidence of firearms used for the refusal of bail but that was not done and thus police acted within the law to release the Defendant on police bail.
   

RULING

7. Section 4 of the Bail Act both including the repealed and the old one provides the legal basis upon which Police and the courts may exercise their authorities to either grant or refuse bail. Section 4 provides that Police and the District Court may grant bail to All offenses except certain cases where the National or the Supreme court shall grant bail. The offense which the National or Supreme court shall grant bail are all mentioned as:
   

a) Willful Murder,

b) Murder or an offence punishable by death

c) Rape, abduction, piracy, burglary, stealing with violence

d) Robbery, kidnapping, assault with intent to steal or

e) Break and enter a building, or dwelling house.

And in which a firearm is involved, irrespective of whether or not the firearm was actually sued in the commission of the alleged offense.

8. The Law under Section 4 of the Bail Act clearly says, one of the requirements for police and the District Court to refuse bail for the above named offenses is the use of Firearms regardless of whether or not the firearm was essentially used in the commission of the crime. For some offences such as Willful murder, Murder and offence punishable by death may not necessarily require firearm to effect the crime however, due to the nature of such crimes bail may be refused. However, other than that the evidence of use of firearms shall be regarded an essential requirement for refusal of bail.
   
9. Defendant was charged with 4 allegations of Deprivation of liberty, Armed Robbery, Threatening and Unlawful assault. The other offenses against the Defendant are not mentioned in Section 4 of the Bail Act except Armed Robbery. The question is whether or not firearms or any imitation of firearms was used in the commission of the offense? I have carefully studied the police summary of facts and noted the following:
   

a) Victim was attacked and punched by the Defendant and others

b) Victim was forced into a while sedan

c) Victim was threatened with small knives

d) There was an attempt to remove the victim’s trousers.

e) Defendant was communicating with some of her relatives that she was bringing a pig for them to feast on by referring to the victim.

10. The above stated facts formed the basis of the allegations against the Defendant. Police Summary of facts demonstrates there were instances of violence’s used when the victim was threatened with small knives and threatening words. The manner in which the victim was approached and threatened by the Defendant and others is uncalled for and therefore Bail should have been refused.
    
11. When you study the Bail Act, the word “and” between the words “dwelling-house” and “in” of Section 4(1)(b) of the Bail Act obligates the preceding provision of the cited Act is to be read together with the succeeding provision to complete the provision and thus the word “and” makes the use of firearms as a condition precedent to the offenses listed in the category for bail to be refused. Nevertheless, in my assessment firearms or any imitation of firearms were not used by the Defendant other than assault and using of small knives and threats. Law is Law and thus everyone must comply with the laws and the courts in the interpretation of the laws must rule within the laws.
    
12. Therefore, in the exercise of my judicial functions, I have noted that Defendant’s cases do not fall within the confinement of cases to be only considered by the National or Supreme court and grant bail. THEREFORE, police bail was applicably granted to the Defendant.
    

ORDERS

12. My Final Orders

1. The Application by Police to revoke Defendant’s bail of K1,000 is refused.
2. Defendant’s police bail is upheld and converted to district court bail.

100. Matter adjourned to 24^th of February 2022 @ 9.30am for mention.

4. Defendant’s bail is extended with conditions.
   

Sasingian Lawyer For the defendant
Police Prosecutor For the State

[1] Section 386 amended by Act No. 29 of 1983, s5.
[2] Section 386(1): penalty clause repealed and replaced by the Criminal Code (Amendment No. 2) Act 1986 (No. 17 of 1986), s20(a).
[3] Section 386(2) amended by the Criminal Code (Amendment No. 2) Act 1986 (No. 17 of 1986), s20(b). .
[4] Section 386(2) amended by the Criminal Code (Amendment No. 2) Act 1986 (No. 17 of 1986), s20(b). .
[5] Section 4 repealed and replaced by the Bail (Amendment) Act 1993 (No. 11 of 1993).