In the Matter of The Bail Act (Chapter 340); Application for Bail by Steven and Johnnes, Peso, Kinbaga Reuben, Sawang Wabut, Amatus Jacob, Akipe Aju, Villie Morris, Sailas Peter, Tomai Freddy, Kaman Amos, [1997] PGNC 138; N1641 (23 October 1997)

Unreported National Court Decisions

N1641

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1189 OF 1997
CHAPTER 340 IN THE MATTER OF THE BAIL ACT
BETWEEN
IN THE MATTER OF AN APPLICATION FOR BAIL BY SERGEANT POKOU STEVEN & BAKANGILI JOHNNES, TAPOL PESO, KINBAGA REUBEN, SAWANG WABUT, AMATUS JACOB, AKIPE AJU, VILLIE MORRIS, SAILAS PETER, TOMAI FREDDY, KAMAN AMOS, ORERE FREDERICK, PANGA PHILIP - APPLICANTS
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - RESPONDENT

Mount Hagen

Akuram J
22-23 October 1997

BAIL APPLICATION - after committal - Defence Force Personnel - National Security as against interest of Justice s.42(6) and factors under section 9(1) of Bail Act - considerations.

Cases Cited

Re Fred Keating (1983) PNGLR 133

St v Paul Tohian (1990) PNGLR 173

Counsel

Korowi & Kelaga for Applicants

Kesan for Respondent

23 October 1997

AKURAM J: This is an cation for bail bail pursuant to sections 42 (6) of Constitution and 6, 7 8 & 9 of Bail Act, Ch. 340.

The thirteen Applicants are Defence Force Soldiho were arrested and charged under section 52 (1) (b) of Crof Criminal Code Act - “quasi-military organization”. Thlicants were arrested ined in June at Wabag and transferred to Mount Hagen where they were committed to National Court for trial3rd of September. The matter wan set down fown for trial on and from 16th to 24th Marh March 1998.

There was a similar application made on 29th August and ruling made by His Honour Sevua, J on the 5th September refusing bail in Waigani National Court. (MP 247/97 and 248/97). I had the benefit of readireading His Honour’s Ruling which was annexed to the affidavit of Korowi, Counsel for Applicants. Both Ms Kelaga and Mr Korowi in their affidavits in support of this application deposed that since the first refusal in His Honours ruling, there has been certain changes, thus the need for this application. Mr Korowised t/p>

3.&#13. < ; &#1 note from hrom his Hono Honour’s Ruling that one of the prime reasons why was refused was because of principles considered relevant to the interest of justice. #160; His Honour’s view regarding interest of justice are set out at pages 4 and 5 of the Ruling.

4. ;ټ With reth respect pect to his Honour Sevua J&#8217ew, I am instructed and verily believe that circumstances wces which His Honour considered relevant at that time have changed since rl of ail wdo not not warrawarrant cont continuous detention of the applicants. What may be considered toebe reasonably justifiable in the interest of justice depends on the circumstances of each particular case.

Some of these changes which his honour considrelevant in refusing bail to the Applicants have since chan changed. Some of these circumstances have been described by Jennifer Kelaga in paragraphs 6 and 7 of her affidavit sworn on 21st October 1997.

5. ټ&##160; F60; Furthetrthethe matters relevant to change in circumstances deposed to d to by Ms Kelaga in her affidavit, I have been instructed of further chanhich /p>

(a) &#1hose inse involvevolved lved in the Sandline Crises since March 1997 have been granted bail by the Courts and are currently undergoing prosecution before the Defence Court Martial and before the ordinary Committal Courts at Port Moresby.

(b) &#16 Walter Enuma, who was was alleged to have been principally involved in the Sandline Crises and also charged under section 51 of the Criminal Code was granted bail pending committal proceedings at Port Moresby.

(c) ټ Dlscipanne and Norm Normalcy in the Defence Force hierarchy has been restored. All persons involved i dise disintegratr desisati the Defence Force have been properly dealt with under the provisions oons of thef the Defe Defence Act and in the ordinary court at Moresby.

(d) ;&#16e AppliAppliApplicantscants have been penalised by the Defence Force by being put off the payroll. Aesult, their families in s in Port Moresby have been without food and money.

I have assisted in the conduct of the commitroceedings for the Applicants and believe that their continuous detention is not justified fied in view of the change in circumstances. I believe that they shoe g be granted bail.

Ms Kelaga deposed as follows:

3. I am inttruchad tost mr alor all of the Applicants reside in settlements outside the perimeters of the National Capital Distrith tfamilue tommodaproblhat is currently being faced by the PNGDFPNGDF.

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4.&#16. < &; Sihe dete detention the Aphe Applicants have been refused bail by the Mount Hagen District Court. A further application by Pato lawyers in Wa NatiCourtalso ed by His Honour Justice Sevu Sevua.&#1a. T60; Thus, hus, the necessity to make this application before the National Court hereount Hagen.

5. ҈& B60; Be0; Because ause this is the second time such an application is being made befoe National Court the onus inus is on the counsel for the Applicant to show that special circumstances have arisen since the application was last entertained or in the alternative there was such a special change in the circumstance surrounding the bail application.

6. I have fherebere insn ucteructed that the following changes in the circumstance have occurred since the Applicants last applied for bail for the National Court.

(a) ټ&#About tout two mono months ago from the date of this application salaries due and owing to all the Applicants herein have been withheld by the PNGDF. This has d great difficulticultor thlicants and theirtheir fami families who apparently are all resident in the National Capital District.

(b) &##160;ndly due to the dete deteriorating jail conditions, als, alot of the Applicants have contracted dysentery, developed boils and ff heae.&#1his may not look alarming but a notable case is Applicant Johaness Bang Bangangueangue who who has developed a crippling disease in both knees and is now walking with the aid of crutches.

(c) dlyirnd fare-most, the pena penalty prescribed under Section 52, Criminal Code Act - “QUASI MILITARY ORGANISATION” is “a fine not exceeding K5 or ionmen a tet excg one year”.<21;.

Givp>Given then that scat scenario, the Applicants have already served an equivalent of a third of the maximum penalty by being in custody, whilst being refused bail by various Courts.

7. & I60;he trcumitances, the, their continued stay in custody will impinge on their constitutional rights to liberty, bail and fultecti the /p>

8. &ـ B6il afil after coer committal for trial or sentence

Subject to Section 4, where a court commits a person whin cu for or sce in the National Court, the, the court shall consider and accordinglyingly gran grant or t or refuse bail to that person in accordance with section 9.

He submitted that this has been the position for the applicants. Section 42 (6), he submits, further says this and it reads:

(6) &#160ersop arrested or deta detained for an offence (other than on or wilful murder as defined by an Act of the Parliament) is entitled to bail at all time times from arrest or detention to acquitt convn unlhe interestsrests of j of justicustice otherwise require.

I agree with the Counsel on this and further that sections 6 & 7 fortifies the intent and purpose of section 42 (6) where they say:

6. ; Applicafion air bail may bmay be made at any time

(1) ҈ pl aptiocation for for bail may be made to a court at any time af perss beeestedetain at any stage of a of a proceproceedingeding.

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(2) ;&#16court shallshall consiconsider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the mant the aation wion would ould be mabe made.

7. ; Bail onuadjontnment

Subject to section 4, where a person is in custody in connexion with any proceedings, including proceedings for committal for trial or sentence in the Nal Cothe Cshall, on each occh occasiocasion than that it adjourns the proceedings before conviction, consider and accordingly grant or refuse bail to that person in accordance with Section 9.

Mr Korowi submitted that under section 42 (6), the only offences for which bail may be refused are Treason and wilful murder as prescribed by an Act of Parliament or in a case where interest of justice requires not to grant bail. Even iful murder or Treasoreason, courts have readily granted bail. Herred to the case of St v St v Paul Tohian (1990) PNGLR 173 where Supreme Court in granting bail set down certain principles. Ts, an Applicant is ent tont to bail as a matter of Constitutional law unless it is in s in the interest of justice not to grant bail and in addition to the provs in section 9 of Bail Act. It held that matterstters ters material to the interest of justice need not be strictly proven as the Bail Authority is not bound by strict Rules of evidence as prescribed in section 9 (2) which reads:

(2) &##160;ons cerindering a ma a matter under this section a court is not bound to apply the technical rules of evidence but may act ch intion available to it.

It was also held in that case that where courtcourt cons considersiders one or more of section 9 (1) of Bail Act, bail should be refused unless Applicant shows why his detention is not justified. Heitted that it may appearppear that this is a case of public interest versus interests of the Applicants. Unless matters of publterenterest are put forwardre the Court, he submits application be granted.

Stap>State opposed this application vigorously. His grounds were basicahat National Court has already entertained the bail applicaplication and had refused so this court has no jurisdiction to entertain iin unless there is a change in circumstances. He then submitted the appl applicants ants affidavits were the same ones filed in previous application and therefore nothing has changed since. ferred to Mr Korowi’8217;s affidavit, paragraph 5 (a); (b) that there are no chao changed circumstances but are common knowledge. He also refuted paragra(c)5 (c) & (d). AMs Kelaga&;s affidavitdavitdavit, he said the applicants did not mention that in their affidavits of their deteriorating conditions aat thalty of K500 maximum fine or 1 year imprisonment ment is not a change in circumstances but but were in existence at the time.

On the issue of interest of justice Counsel referred to case of Fred Keating (1983) PNGLR 133 where it is held that Court has an over and above discretion to give considerations under section 9 (1) of Bail Act. In sup he relied on the afhe affidavit of Brigadier General Leo Nuia sworn on 17-10-97. That affidavivery brief anef and reads:

1. ـ I am tme Coerand the PNG DPNG Defence Force;

2. &##160; Since being appointpointed as Comr in 1997 e seen thare was a lot of instability in the PNG Defence Force resultinulting in g in the sthe securiecurity of the Nation being compromised;3.&##160;; Sinc Since taki taking up g up office, I have been attempting to instil and or reinstate cohesiveness, discipline and ty ba all of the PNG Defence Force. Thisot an easy task given iven the tume tumultuoultuous evus events during and following the Sandline Crisis and the recent national elections. I verily believe the AppliApplicants will if released on bail have a negative influence on all my efforts to restore normalcy in the PNG Defence Force. (emphasis added)

The Respondent’s Counserefore had no further evideevidence except the above affidavit in support of his opposition to Bail in paragraph 2, where Brigadier Gl or Commander only said “I have seen that there was was a lot of instability in the PNG Defence Force resulting in the security of the National being compromised” since he was appointed Commander in July 1997. What he meant by “the security of the Nation being compromised” is not clear. Furtn paragraph 3, he says says “...Applicants will if red on bail have a negative influence on all my efforts to restore normalcy in the Defence Foce Force” again is only his belief at yet a reality.

Frop>From his affidavit and those of Applicants and their Counsels, I can say that the issues in this Application are; (1) interest of National Security as against (2) interest of justice of each of these thirteen applicants. As tointerest of National onal Security, there were no submissions made and authorities cited to clarify what constituted the Nationaurity as far as their charge is concerned.

The Applicants are charged under section tion 52 (1) (b) in that “they being members of the PNG Defence Force were organised for purposes of enabling them to be employed or display of physical force in promoting any political object”. Basically they were nohorithorised by the PNG Defence Force headquarters to do so. Alh the issue of national onal Security was raised in TOHIAN’s Case it was not argued. Howeapi, DCJ discusseunderunderissue of “i220;in the interest of justice”. I therefore t find evideevideevidence in support of this allegation or ption.

As to whether the release of applicants wouldwould have a negative impact in all the efforts to restore normalcy, againe is no evidence. It ; It is on assumption.&ion. It is not cleether this wiis will happen. Itbut it is not more than than likely to happened.

I now come to the seriousness of this offence. This is not a treasonablenoffence or crime as ed unection 39 of the the Criminal Code. Both the offencefences of treason and Wilful murder are excluded under section 42 (6) of Ctution as held in the Fred Keating’s case as stated bted by majority at page 135, when relating to the Bail Applications, that:

There are two categoriesories of bail applicants - (A) those who are charged with wilful murder or treason and (B) those charged with other offences.

Category A applicants:

(a) They must apply to the Nalional Court and the Supreme Court for bail.

(b) &##160;; Their aeir applicaplications for bail are not subjected to the &;inte of jeR#160; s. 42 (6) of the Cthe Constionstitutiotution.)

Category B applicants:

(a) &ـ They arey are guar guaranteed bail at all times by s.42(6) of the Constitution.

(b) &##160; Their aeir applicataons ube subjectethe &;interests of justice” by s. 42 (6) of the the ConstConstitution.

(c) They cal app P toocu Ls ists istricttrict Courts for bail.

In case of C of Categoategory B applicants, I hold the view that s. 9 of the Bail Act 1977 does ontai constions are ant as to whether bher bail sail shouldhould be r be refuseefused “in the interests of justice”. Section 42 (6) ofConstituttitution does not say that the phrase “interests of justice” may be defined by an Act. There arereasoy these must must be given a very wide meaning anng and application:

(a) #160; ټ It says “ints;ints” - ie. the plural of the word “interest” is used; and

(b) &160;
e0; Sn sch. 2) saat &#Al &#All provisions of, and all words, expreexpressionssions ands and propositions in, a Constitutional law shall be given their fair and al me&#822p>

The applicants for bail for this offence come usection 9 (1) of the Bail Aail Act plus section 42 (6) of the Constitution. Therefore in s. 9 (ovisionisions, I have not been referred to any of the provisions from (a), (b), (d) to (j) except c (iii) but the applicant’s Counsel refuted that by sayiere was no evidence in the Committal proceedings showing usng use of firearms.

As to section 42 (6) of the Constitution, the evidence and proceedings so far show that the Applicants have been arrested in June, committed to stand trial in National Court on 23rd September 1997. Thelied for bail whilst thst the Committal proceedings were still in progress. Although His Honourua J di J did not comment on the consequences of applicants being convicted, I am of the view that the resultant effect is a maxof K500 fine or in default 1 year imprisonment. If they are refbail, they they would ould be in custody as of 24th March 1998, a period of 9 month. In all thercumstances, is , is that justice, of course, not forgetting that they may be acquitted resg in greater injustice.&#16. It woulrefore not be in thin the interest of justice for the Applicants to be remanded in custody longer that justifiable in the circumstances.

I have also noticed in Court when they appeared yesterday before me that one of them is in crutches. The othersot look healthy lthy at all. Thre Defence Force Soldierldiers who are usually on medical treatment every so often. By being inody for over 4 er 4 months, they have not been getting their treatment. Further custould only dorariorate their heir health conditions. Again, is that justicefor for whom. Even though theylicants) mts) may be De Force Soldiers, they are charged in the Civil Courts and not under the ary couy couy courts or court martialled and so the la the that apply to anyo any ordering citizen of the land apply tply to them as well, as stated by section 203 of the Constitution. Sn 203onstitution readsreadsreads:

203. Applicatiogene al law

Since it is necessary that the Defeorce and the members of the Defence Force have no special position under the law except to t to such extent as is required by the natf thee as ciplineplined ford force ance and its peculiar functions, duties and responsibilities, it is hereby declared that, except as is specifically provided by a Constitutional Law or an Act of the Parliament, the Defence Force and the members of the Defence Force are subject to all laws in the same way as other bodies and persons.

Therefore, if the Commander is of the view that their release may have a negative effect or influence on his efforts to restore normalcy in the Defence Force, he has the powers under the Defence Act, Ch. 74 with its Regulations and the Standing Orders to take any disciplinary action within the Defence Force.

In view of above circumstances and reasons given, I am of the view that Respondent has not established any grounds under section 9 (1) of the Bail Act. Further in the interest of justice in this case, I grant their application for bail.

I will now hear submissions on Bail conditions.

After hearing submissions on Bail conditions, I impose following:1.&##160; #160;&#160 l; Alrtthi applicants tnts to be Released on Own Recognizance.

2. & A60; A return Air fares to be purchased in the sum of K326 each, a total of 13 tickets at K4238.00 and provided to Assistant Registrar/ Hageionalt forting e release from CIS CIS custody.

3. &160; &#160 &#The The return tick tickets from POM to Hagen on 15th March 1998 to be placed in custody of Assistant Registrar, National Court, Waigani and to be obtained upon A/Registra17;s nt onefore 15/3/98.

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4.&#14. &##160; R60; Report ti Nat Cnalt Rurt Registrar, Waigani each Fridays on Government fortnights until matter is finalised.

5. N t toicartte pa anynactivactivities which inres whe nofunctionctions ofns of the the PNG Defence Force.

Lawyers for Applicant: Kunai Lawyers

Lawyer for Respondents: Public cutor