State v Paul [1986] PGLawRp 344; [1986] PNGLR 97 (7 April 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 97 - The State v Beko Job Paul 

[1986] PNGLR 97

N537

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

BEKO JOB PAUL

Lae

Wilson J

6-7 April 1986

CRIMINAL LAW - Practice and procedure - Bail application - Nature of offence may be significant - Break, enter and steal - Stealing firearms from police station armoury - Bail refused - Bail Act 1977, s 9(1) - Constitution, s 42(6).

The Bail Act 1977, s 9(1), provides that bail shall not be refused unless the bailing authority is satisfied on reasonable grounds as to one or more of the considerations enumerated in s 9(1).

The Constitution, s 42(6), provides that a person arrested or detained for an offence other than wilful murder or treason is entitled to bail unless the interests of justice otherwise require.

On an application for bail on a charge of break, enter and steal involving the stealing of firearms from a police station armoury,

Held

N1>(1)      Notwithstanding the consideration enumerated in the Bail Act, s 9(1), the nature of an offence itself may have the effect of operating as a sufficient factor to refuse bail, unless the court is convinced that the continued detention is not justified.

Re Fred Keating [l983] PNGLR 133 at 135, 136, considered and applied.

N1>(2)      In the circumstances, the offence, involving as it did a clear intent to secure arms, negated any presumptive right to bail under the Constitution, s 42(6) or under the Bail Act, and as the interests of justice would not be served by failing to give special significance to the nature of the offence, bail should be refused.

Case Cited

Fred Keating, Re [1983] PNGLR 133.

Bail Application

This was an application for bail by a person charged with the offence of break, enter and steal.

Counsel

R J Everingham, for the applicant.

M Mosoro, for the respondent.

Cur adv vult

7 April 1986

WILSON J: This was an application for bail by a youth charged with the offence of break, enter and steal.

On the application of defence counsel I was given the following information to support the application:

—       charge, break, enter and steal

—       youth, sixteen years of age

—       no prior offences

—       from Bulolo, lives with uncle and aunt who have substantial employment in the town and  would provide surety

—       worked as bowser attendant at uncle’s service station

—       in custody since 28 January 1986

—       unlikely to abscond.

Based on this information I was urged to grant bail as there was nothing in the nature of the grounds set out in s 9(1) of the Bail Act 1977 which would operate against the applicant. Section 9(1) provides as follows:

N2>“9.      Bail not to be refused except on certain grounds

(1)      Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:

(a)      that the person in custody will not appear at his trial if granted bail; or

(b)      that the offence with which the person has been charged was committed whilst the person was on bail; or

(c)      that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of:

N5>(i)       a serious assault; or

N5>(ii)      a threat of violence to another person; or

N5>(iii)     having or possessing a firearm, imitation firearm, other offensive weapon or explosive; or

(d)      that the person is likely to commit an indictable offence if he is not in custody; or

(e)      it is necessary for the person’s own protection for him to be in custody; or

(f)      that the person is likely to interfere with witnesses or the person who instituted the proceedings; or

(g)      that the alleged offence involves property of substantial value which has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property.”

The State Prosecutor indicated that the State opposed bail. The State’s ground was that the applicant was unlikely to appear: s 9(1)(a). During this submission it was indicated to me for the first time that the break and enter offence involved the Police Station at Bulolo. The stealing aspect involved eight (8) shotguns which were stolen from the armoury within the station.

The State Prosecutor then asked for an adjournment to call evidence to support his contention that the applicant would not appear for his trial. I indicated to both counsel that I was most concerned about the serious nature of the offence, namely the break and enter of the police station and the object of that action, the taking of weapons, and I indicated to both counsel that, leaving aside the issue of whether the applicant would appear if granted bail, they should be prepared to address me on the question of whether the offence itself was of such a nature that it would have the effect of operating as a sufficient factor to refuse bail. I referred both counsel to Re Fred Keating [1983] PNGLR 133, particularly at 135, 136.

On resumption of the case on the following day the State called Justin Hiap, an officer of the CID and the officer in charge of the investigation. His evidence regarding the likelihood of the applicant appearing was of little value as it amounted to assertion rather than anything in the form of evidence to back such assertion. However, he did give evidence that two suspects (including the applicant) had been arrested and two were still at large. One shotgun was, as yet, not recovered. He said the applicant had made admissions. I asked whether ammunition had been taken and he said it had not been.

I then listened to counsel’s submissions which centred on the question of whether bail should be refused due to the nature of the offence which was accepted by me as an extension of s 9(1) but within the power of the court following the reasoning in Re Fred Keating at 135.

Mr Mosoro for the State urged me to refuse the application because the Police Station should be respected, it was a joint crime, one shotgun was still to be recovered and two accused were still at large. He also submitted that armed robbery and other armed offences had increased greatly in recent times and this was also a factor. This assertion was not challenged by the defence.

Mr Everingham for the applicant said that the fact that it was a police armoury and that guns were stolen should not be overemphasised. He tried to draw an analogy with break and enter of a department store and stealing guns there for commercial disposal. I rejected this analogy. He indicated that the applicant was not the ringleader, which it appears is a correct assertion. He claimed that the alleged crime was not preparatory to commission of any other act of a criminal nature.

The central theme in this matter that has concerned me is whether this type of offence where a police station armoury has been the object of a break and enter for the express purpose of stealing arms, in this case shotguns, should be considered by the court to be a factor in itself which should lead the court to the conclusion that bail should be refused, unless the court is convinced that the continued detention is not justified. I have come to the conclusion that it should. I have not reached this decision lightly.

Section 42(6) of the Constitution provides that a person arrested is entitled to bail (except in cases of wilful murder and treason) unless the interests of justice otherwise require. The Bail Act reinforces this primary right and the presumption of bail.

However, I consider that the offence the nature of which involves the clear intent to secure arms negates that presumption and that the interests of justice are not served by failing to give special significance to this type of crime and the consequences that flow, or could flow from it. On the basis of this reasoning I refuse bail, there being nothing in the application which convinces me that the continued detention is not justified.

There are some other matters I wish to raise. They are, I believe pertinent, but did not affect my decision. The admission of guilt asserted by the police was not contested. I examined the record of interview under the powers set out in s 9(2) of the Bail Act. The applicant there states his age as eighteen (18). He states that after the break and enter and steal offences, a further offence involving the use of the guns, masks and threats took place. (No ammunition was used.)

I did not think that much turned on whether the guns in such an incident, were recovered.

Further I note that the applicant immediately following this matter was another applicant, part of a group, who are alleged to have broken into the police armoury in Finschhafen and stolen seven shotguns.

Certificate of refusal of bail handed down.

Bail refused

Lawyer for the applicant: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.