Application of Paul Tohian for Bail [1990] PGNC 30; N860 (3 May 1990)

Unreported National Court Decisions

N860

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
BAIL APPLICATION OF PAUL TARCCICIUS TOHIAN

Waigani

Hinchliffe J
2-3 May 1990

CRIMINAL LAW - Bail Application - Treasonable offence - Factors considered - Serious offence - Undermining of Constitution - National security - Interference with State witnesses - Access to lawyer - Need for a fair trial.

Application

This was an application for bail.

Counsel

L Gavara-Nanu, for the applicant.

G Toop, for the State.

P Ume, for the Police Department.

Cur adv vult

3 May 1990

HINCHLIFFE J: This ispplication for bail bail by Paul Tarccicius Tohian who is charged as follows:

“That Paul Tarccicius TOHIAN formed an intention to levy the war against the Queen and Head of State in order by force to put force upon the Prime Minister and the Executive Government of the Independent State of Papua New Guinea and that the said Paul Tarccicius TOHIAN manifested that intention by ordering the Mobile Squad Officers and Policemen to arm themselves and go with him to the Parliament House to have the Prime Minister under House Arrest for the purposes of said Paul Tarccicius TOHIAN to take over as the Prime Ministerand the executive Government of the Independent State of Papua New Guinea.”

There is no doubt that this is one of the most serious criminal charges and attracts a penalty of up to life imprisonment.

The applicant has denied the charge and it is clear to me that he intends to hotly defend it at a later date. On the other hand the State is confident that it has a strong case and proposes to call a large number of witnesses. I am satisfied that the State case has substance.

Mr. Gavara has indicated that his client has been behaving impeccably since the incident and has gone public in advising people to keep calm.

But it cannot be forgetten that the allegations against the applicant are enormous and that a firearm was involved. It is such an allegation that what the applicant in fact attempted to do was to undermine the Constitution of the country and do away with the democratic process. The people of Papua New Guinea, in effect were under attack. The enormity of the alleged crime is something I cannot ignore.

A senior police officer, Mr. Francis Mugugia has said that in some quarters of the police force loyalty is still strongly in favour of the applicant and that all is not calm. It appears from the allegations that if correct, the applicant has a large number of supporters in the police force and the defence force who presumably have access to arms.

Up until now all has been relatively quiet but now the applicant has been charged that quietness is not guaranteed. Mr. Muguguia was of the view that with leadership, trouble could erupt. I don’t believe I can ignore that statement as it carries a lot of sense. Clearly the situation has changed now that the applicant has been charged.

I am of the view that having access to such a large number of people it must be likely that there would be interference with witnesses.

The lawyer for the applicant has addressed me in relation to his client having access to his lawyer and obviously to instruct him in relation to committal proceedings and then if necessary for a trial in the National Court.

That is something of course that I must take into account and there is ample case precedent in relation to it. But Mr. Gavara can travel to the remand area of Bomana CIS. Sometimes it is not quite so possible for the Public Solicitor for example to travel but I don’t see that as any great problem in this instance.

The fact that Mr. Baki was released on bail is not really relevant. That application was before another judge with different circumstances. The applicant in this case, it must not be forgotten, was the Commissioner of Police for Papua New Guinea and the person in charge of the operations on Bougainville. He controlled many members of the defence force and the police force.

Now that he as been charged I am of the view that it would be creating an enormous risk in regard to a fair trial and the security of the country to release the applicant on bail.

I therefore order that bail be refused.

Lawyer for the Applicant: Les Gavara-Nanu.

Lawyer for the State: Kina Bona, Public Prosecutor.

Lawyer for the Police Department: Peter Ume.