Osara v The State [2001] PGNC 149; N2042 (26 January 2001)

N2042

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

M. P. NO. 344 of 2000

JEFFREY OSARA

Applicant

-V-

THE STATE

Respondent

LAE: KANDAKASI, J.
2001: 24 AND 26 JANUARY

CRIMINAL LAW- Bail application - Application by applicant in person - Grounds or reasons advanced for bail not substantiated by evidence - Relevant principles summarized and applied - Need to avoid appearance of double standard - Bail Act (Chp. 340) ss. 6, 9, and 16

Cases cited:

Steve Lester v. The State (unreported and unnumbered decision delivered on 22 January 2001) MP 856 of 2000.
John Raikos v. The State (unreported and unnumbered decision delivered on 22 January 2001) MP 206 of 2000.
Francis Kensi Pele v. The State (unreported and unnumbered decision delivered on 25 January 2001) MP 340 of 2000.
Re Fred Keating [1983] PNGLR 133

Counsel:

Applicant in Person
J. Pambel for the State

26 January, 2001

KANDAKASI, J: This was an application for bail under s. 42(6) of the Constitution and s. 6 of the Bail Act (Chp.340) by the applicant himself. I heard the application and refused it on the 24th of January 2001 and gave brief oral reasons for it. At that time, I promised to publish my reasons in a written judgement before the end of the week in full recognition of the requirements of s.16 of the Bail Act. This is the judgement I promised.

The Relevant Law

I set out the relevant law in my judgments in Steve Lester v. The State (unreported and unnumbered judgement I delivered on the 22 January 2001 here in Lae) MP 856 0f 2000 at pages 2 - 4; John Raikos v. The State (unreported and unnumbered decision I delivered on 22 January 2001 here in Lae too) MP 206 of 2000 at pages 2 - 3 of the judgement. The law as discussed in the first case was quoted in full in Francis Kensi Pele v. The State (unreported and unnumbered decision I delivered today 25 January 2001)MP 340 of 2000 at pages 2 - 4 of the judgement. I wish not to repeat them for the purpose of this judgement, save only to summarize the legal principles emanating from those cases and the cases cited or referred to in those judgments. I do so in these terms:

1. A person arrested and charged with an offence is entitled under s.42(6) of the Constitution to bail at any time except for wilful murder and treason but a bail authority still has the discretion to refuse bail "if the interest of justice otherwise requires";
   
2. The Bail Act (Chp.340) by s.9 sets out the circumstances in which bail may be refused;
   
3. The existence of one or more of the circumstances under s. 9 of the Bail Act may form the basis to refuse bail but that is not automatic. There is discretion in a bail authority to grant bail if an applicant for bail is able to show by appropriate evidence that his "continued detention in custody is not justified";
   
4. The burden to produce appropriate evidence to form a foundation for a grant of bail is not a difficult and complicated one because by virtue of s.9(2) of the Bail Act the application of the technical rules of evidence are excluded;
   
5. The list of circumstances under s.9 of the Bail Act is not exhaustive and other factors such as the following may be taken into account before deciding whether or not to grant bail:
   
   1. The applicant being an habitual criminal;
   2. Whether the applicant is a trustworthy person and will meet any bail terms that may be imposed;
   100. The number of bench warrants outstanding for bail jumpers for the kind of offence the applicant is held in custody for;
   4. The costs and expenses the society may be put through in trying to bring the applicant to justice if he breaches his bail terms which may mean delays in a speedy trial which may have the risk of the State loosing vital evidence supporting the charge against the applicant;
   5. The expenses and the trouble the society through the Police Force, has been put through to secure the applicant’s arrest and incarceration;
   6. Whether the proposed guarantors are serious in their proposal having regard to the amount of money they are able to pay in sureties;
   7. Whether the amount of cash bail proposed has any relative correspondence to the offence with which he has been charged; and
   8. Whether the applicant would have already served his penalty without a trial by reference to the offence with which he has been charged and the possible date for his trial.
      

The Present Case

The applicant in the present case argued that, he is entitle to bail under the Constitution and that he should be granted bail and advanced two grounds for the grant of bail. The first relates to family concerns and need. The second relates to overcrowding at Buimo CIS, where he is currently being detained.

In relation to the first ground, he says he is the 4th born in a family of 5. His first two elders, both sisters are married. One of them has formal employment and the other is a housewife and is involved in a small poultry project. He helps out in the poultry project and baby-sits for his sisters. He was enrolled with CODE but has since stopped due to the death of his father. His arrest and incarceration as left a vacuum in the kind of serves he has been giving to his family and he says he needs to go out on bail to fill it up the vacuum again.

The applicant denies the charge of armed robbery of a dwelling house at night with actual and threats of further violence. He says he has never been in trouble before and this is his first time to be charged with any offence and being detained in lawful custody. There is no evidence in any form whatsoever, to confirm this or any of the above.

Likewise, there is not a shred of evidence supporting the applicant’s claim of overcrowding at Buimo CIS and anything that may be made out of that.

Although, two of his relatives an uncle and one of his elder sisters was named has possible guarantors, there is nothing from those persons confirming their prepared and willingness to be his guarantors. There is also no evidence to show that these person do have the means and capability to ensure the applicant meeting any bail terms that may be imposed in the event of bail being granted.

A cash bail of K100.00 is proposed. A similar amount is also proposed for any surety requirements.

The applicant is the co-accused to Francis Kensi Pele. I refused that person’s application for bail. The relevant judgment is Francis Kensi Pele v. The State (supra). I refused bail in that case because there was no evidence supporting any of the grounds put forward, the application was caught by s.9(1)(c) of the Bail Act and the applicant failed to show by appropriate evidence that his "continued detention in custody was not justified". I also found that there was no person with the means and ability to see to the fulfilment of any bail terms that could be imposed if bail were to be granted. Further, I found that the amount proposed for cash bail and surety did not have any correspondence to the offence with which the applicant was charged. I was therefore, not satisfied that the applicant made out a case for him to be granted bail. Accordingly, his application was refused.

In this case, the applicant has also failed to make out a case for grant of bail. He did not produce any evidence in support of the grounds he put forward in support of his application. Bearing in mind what I said in the case of Steve Lester v. The State (supra) at pages 5 – 6, I find that the cash bail and surety proposals in the amounts of K100.00 each are nothing compared to the seriousness and the amount of violence (actual and threatened) involved in the commission of an offence that is on the increase and is effectively preventing our society from developing because of the fears and other negative impacts this sort of offences are having on our society. Those who commit this sort of offence need to know that the offence they are committing is a serious one. The courts therefore, have the duty on behalf of the society to show that such offenders will not be dealt with lightly. Thus, in the case of bail applications as in the present case, the amount of cash bail has to be more than a mere K100.00. In my humble view cash bails and sureties in such cases have to be increased and start at K1,000.00 and go up wards depending on the circumstances of the case.

Further to the above, the applicant has not been able to demonstrate in any way how his continued detention in custody is unjustified. This leaves the Court with the undisputed fact of the applicant being charge with armed robbery with actual and threaten violence where dangerous or offensive weapons were used. That gives this court no choice but to follow the dictates of the Supreme Court in Re Fred Keating [1983] PNGLR 133, namely, the application should be refuse if one of the factors under s.9(1) of the Bail Act is established unless the applicant shows his continued detention in custody is not justified: See per Kapi DCJ., at page138 and Andrew J at page 140 of that judgment. Accordingly, I refused the application on the 24th of January 2001.

There was an additional reason to refuse bail in this case. The applicants co-accused Francis Kensi Pele was refused bail on the 24th of January 2001, the full reasons for which were given in writing on the following day, the 25th of January 2001. It is a well-accepted principle in criminal law in our jurisdiction that co-accuseds should be given similar treatments to avoid disparities especially in sentences. This principle in my view should equally apply to bail applications to avoid an appearance of unfairness and therefore injustice by giving different treatment and results to applicants for bail who are co-accused in the alleged offence. Applying that principle helps to eliminate the appearance of having double standards and being accused for it.
____________________________________________________________
Applicant in person
Lawyer for the State: Public Prosecutor.