State v Bora [1997] PGNC 19; N1515 (27 February 1997)

Unreported National Court Decisions

N1515

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP NO. 104 OF 1997
THE STATE
v
CHRISTOPHER BORA

Waigani

Batari AJ
26-27 February 1997

CRIMINAL LAW - Practice and Procedure - Bail Application - Pending committal - Offence of robbery - alleged acts constituting offence - Proof of - Onus - Failure to show cause - Discretion - Bail refused - Bail Act, Ch. No. 34.

Counsel:

B Takin for the Applicant

Ms Suwae for the Respondent

RULING ON BAIL APPLICATION

27 February 1997

BATARI AJ: The Applicant seeks to be released on Bail pursuant to s.6 of the Bail Act, pending completion of committal proceedings in the District Court at WAIGANI. He has been charged with one count of armed robbery. He will next appear at the Committal proceedings on 7 March, 1997. The application is opposed by the State, Respondent.

The circumstances of the alleged offence are set out in the Affidavit of the Applicant’s lawyer which in essence adopted the statement of facts prepared by the police in support of the information charging the offence. The allegations in brief are that, the applicant held up employees of Rainbow Estate Big Rooster Shop and stole from them K2,000.00. He was with three others and armed with firearms. Shots were discharged when police intervened, resulting in the death of two of the robbers while the Applicant allegedly escaped in a stolen vehicle with the fourth robber. The robbery was committed on 18 December, 1996. The Applicant was arrested and detained on 3 February, 1997.

The Applicant is aged about 32 years and comes from Daboit Village, Iomba in the Oro Province. He is married with five children and resides at Oro Settlement adjacent to the PNGDF Air Transport Squadron premises at Jackson’s Airport. He previously worked with Ilimo Farm until his termination at the end of 1996. It is not known what occupation (if any) he had at the time of his arrest. I would assume for the purpose of this application, he was unemployed.

Nothing else was said about the accused’s personal history or particulars of his wife and his children, their welfare, their ages, their names and whether or not the wife is working or the children are in school.

The Applicant’s lawyer submits his client should be released on bail because:

(i) he has a fixed place of abode;

(ii) he is unlikely to abscond Bail;

(iii) he requires medical treatment which can only be obtained if given freedom of movement;

(iv) he would put up sufficient funds for cash Bail and would comply with reporting conditions.

And further that none of the grounds under s.9 of the Bail Act applies.

State opposes the application on the grounds that:

(i) the allegations against the Applicant involved threat of violence and possession of firearm;

(ii) that investigations into the Applicant’s involvement has not been completed.

I infer from attachment ‘A’ to the Public Prosecutor’s Affidavit that the application is opposed also on the basis that the proceeds from the robbery has not been recovered and if released from custody, the applicant is likely to conceal or otherwise deal with it. It is also feared the applicant might interfere with witnesses if allowed Bail.

The applicant has a favourable start under the Bail Act, in this application. The opening words in the Act which confirm that advantage state:

“Being an Act:

(a) to provide for Bail to be granted more readily...” (emphasis mine)

Section 42(6) of the Constitution, also confers on the accused person entitlement to Bail at all times following his arrest and/or detention in custody. However it does not follow that bail is to be given in every case as a matter of course or as a matter of right because under s.9 of the Bail Act, if one or more of the matters stated are satisfied, the exercise of discretion should be made against grant of bail. It is sufficient that one of the considerations under s.9 is proven and it does not matter which one. In Re: Keating [1983] PNGLR, 133 Kapi, DCJ held at p.138 that:

“The exercise of the discretion to grant bail should be used readily unless any one of the matters under s.9 is established. The Act treats each consideration as equal. One is not to be considered as less serious than the other for the purposes of refusing bail. That is the effect of s.9. However s.9(1) provides for refusal of bail on “one or more” of these considerations. This envisages a case where objection to bail may be taken on more than one of these considerations. I am of the opinion that when one of these considerations is established, the court should exercise its discretion to refuse bail.”

The Respondent’s lawyer objects to the application on a number of contentions. However, its stronger argument in my view is that two of the alleged acts constituting the offence were:

(i) threat of violence to another person; and

(ii) possession of a firearm.

These alleged acts are disputed by the applicant on the basis of general denial. The Public Prosecutor stated in his Affidavit that the robbery involved high powered guns and shots from these guns were discharged in exchange with the police resulting in the death of two robbers and a subsequent death of the fourth. The Applicant says he was not there. I am satisfied on reasonable grounds that the robbery took place and that the alleged acts constituting the offence involved threats of violence to other persons and possession of firearm under s.9(1)(a)(ii) and (iii) of the Bail Act. Whether or not anyone was hurt is immaterial. It is sufficient to show that property was taken following threats of violence to the victims by use of firearms. I am also satisfied that the arrest and detention of the Applicant resulted from reasonable suspicion of his involvement and that he is sufficiently implicated on police information available before me. Therefore, I should exercise my discretion to refuse Bail.

However, there is a discretion to admit the applicant on bail even if one or more of the considerations under s.9 of the Bail Act, is proven and the onus is on the applicant to show cause why his detention in custody is not justified. See re: Keating, ibid, where Andrew, J stated at page 140:

“In my judgment the use of the word ‘shall’in s.9(1) of the Act shows that it can be seen that the bail authority must refuse bail if one or more of the conditions are proved unless the applicant shows cause why his detention in custody is not justified. Such an exercise is always discretionary.”

The Applicant says that he has a fixed place of residence and that his wife and his five children are the reason he would not abscond. He would also comply with other Bail conditions that might be imposed for their sake. However as I have indicated earlier, there is bare minimum information about his family background and welfare. There is no information touching their present circumstances and how their welfare and livelihood might be affected by further incarceration of the Applicant. Further, the information on his proposed place of residence is insufficient. The exact loation and address remains uncertain, as a result. These are relevant considerations which in my view will assist the Court exercise its discretion one way or the other on a bail application.

The Applicant also submits he should be released from custody on medical grounds. Whilst I accept that he might have been assaulted upon his arrest, there is no evidence of injuries sustained. The Applicant is represented. He could have arranged medical examination and obtained a report but this was not pursued. His lawyer’s submissions were based solely on instructions that the Applicant has untreated injuries which presently cause him pain and discomfort. If that were so, the matter should have been given priority in support of this application. Without medical proof of the Applicant’s injuries and the effect of detention on his general health, I am not inclined to give this ground much weight.

The Applicant is charged with a very serious offence and police is yet to complete its committal file. The delay in his arrest his lawyer contended supports lack of evidence against the applicant. I consider it immaterial that he was not arrested immediately. The delay in his arrest could be explained from the alleged facts that two of the robbers fled the scene in a stolen vehicle. Immediate arrest in the circumstances would have been difficult. Delay in the arrest may have also resulted from continuing investigations which led to his apprehension at Gordons Market on 3 February, 1997. In the statement of facts tendered, it was also alleged the Applicant, up to the time of the arrest, was on the run. That may also explain the delay on his arrest. In making this observation, I bear in mind that the guilt or innocence of the applicant is not on issue here.

I am not satisfied that the Applicant has shown his further detention in custody is not justified.

I refuse the Application. Applicant is at liberty to make further application for Bail.

Lawyer for the State: Public Prosecutor

Lawyer for the Applicant: BT Gobu & Associates