Titus v The State [2001] PGNC 150; N2043 (26 January 2001)

N2043

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

M. P. NO. 351 of 2000

BENSON TITUS

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 to confirm with the requirements of s.16 of the Bail Act. This is the judgement I promised.

Relevant Facts

The applicant personally filed an application for bail on the 9th of June 2000, using a pro-forma form. I gather that the Lae National Court has designed the form. I also gather that, as new detainees enter Buimo CIS, they are given the form to fill if they want bail. Once the forms are filled in and filed with the National Court, a date would then be allocated and the applications would be heard.

In this case, the applicant has filed the bail application form with an attachment to it headed "Reasons or Grounds for Bail". Also on the Court’s file is a copy of the information charging the applicant and the summary of facts in support. The relevant facts are therefore extracted from those materials.

It is alleged that the applicant in the company of two others went to a dwelling house and held up a Nelson Waba on the 14th of March 2000 at Busu Compound, Lae, Morobe Province. At that time, the accused and his accomplishes were armed with a homemade gun and knives. They use those weapons to hold up the victim and drive of in a Morobe Provincial Government vehicle the victim had taken home on the date of the offence. The victim, his family members and those who were with him at that time were ordered to lie down and they did at the threat of being shot at if they did not comply. Police say the applicant admitted to having committed the offence.

For his grounds or reasons for applying for bail, he says he is the only one in the family assisting his old mother to provide for the family. His father is deceased. He has started a small trade store and a chicken poultry project, which require his attention. His incarceration is jeopardising those. There is however, no evidence whatsoever to support these claims.

The Relevant Law

Upon reading and a consideration of cases like that of, The Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State (1997) N164; The State v. Beko Job Paul [1986] PNGLR 97; Re Fred Keating [1983] PNGLR 133 and my own most recent 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; John Raikos v. The State (unreported and unnumbered decision I delivered on 22 January 2001 here in Lae too) MP 206 of 2000 and Francis Kensi Pele v. The State (unreported and unnumbered decision I delivered today 25 January 2001) MP 340 of 2000, the law on bail is clear. I summarised the position in Jeffrey Orasa v. The State (unreported and unnumbered judgment I delivered today as well) MP 351 of 2000, in these terms and I quote:

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 willful 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

Applying those principles to the present case, I refused the applicant on the 24th of January 2001. I arrived at that decision because of a number of factors. First no evidence was produced to support the grounds advance for the application. It was not in my view, a difficult thing to do because the technical rules of evidence are excluded by virtue of s.9(2)of the Bail Act, but the applicant failed to take advantage of that. Secondly, the offence the applicant allegedly committed involved dangerous or offensive weapons, namely a homemade gun and knives which were used to threat serious assault or danger to the victims if they failed to comply with orders to lie down and for the main victim to surrender the keys to a vehicle. This placed the application under s.9(1)(c) of the Bail Act. That meant that the application could be refused unless the applicant was able to show by appropriate evidence, that his continued detention was no justified going by the Supreme Court decision in Re Keating (supra) at pages 138 and 140, per Kapi DCJ and Andrew J. respectively. This led to the third ground for a refusal of the application, the applicant failed to produce any evidence and show that his continued detention in custody was unjustified. Fourthly, the amount of money proposed for cash bail and surety was a mere K100 each, which I consider insignificant, both in terms of the nature of the offence with which the applicant is charged and the need to show some seriousness with the applicant’s need to comply with any bail terms that may be imposed. A higher cash bail and surety may make an accused person who is granted bail to comply with the terms of the bail, if any, to protect or save guard against their forfeiture. This may eliminate the risk of him breaching his bail conditions, which is a risk a bail authority has to consider and if satisfied that there will be no breach of bail conditions, bail may be granted. Finally, nobody came forward to guarantee the applicants obligation to comply with bail terms if he was granted bail with terms. This adds to what has just been said. In order to show to the satisfaction of the bail authority that the applicant will answer bail until excused by the court, a person or persons with some standing and position in society has to come forward and provide such guarantees. Simply, naming people as possible guarantors without the people themselves coming forward and indicating their willingness to be guarantors and undertake to the court that they will personally see to the applicant meeting any bail conditions that may be imposed, is not good enough. A lacking in this area fails to assist a bail authority to be satisfied that there is no risk of the applicant meeting any bail conditions that may be imposed, and therefore grant bail.

In Steve Lester v. The State (supra) at page 3 I said:

As was stated by Akuram J., in The Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State (supra) and Wilson J., in The State v. Beko Job Pau(supra) the list of circumstances under s. 9 of the Bail Act do not necessarily limit the factors a bail authority can take into account to decide whether or not to grant bail. Other factors may be taken into account in order to determine what does "the interest of justice otherwise requires". In other words, bail authorities should not proceed to grant bails as a matter of course. Instead as already stated above, it should carefully consider the interest of the applicant to be left out on bail and the interest of the society to have offenders dealt with according to law once brought before the Courts in a manner that is prompt, effective and less expensive. This may involve the bail authority taking into account all of the factors under s. 9 of the Bail Act and such other factors the bail authority considers appropriate before deciding whether or not to grant bail.

In the present case, I took into account all the above factors as well as the need to be more cautious in view of the long list of outstanding bench warrants for people who have been granted bail and have breach the terms of their bail. To some offenders it seems a grant of bail is taken as a license to freedom and are never seen again in court. They have been able to do that because bails have been readily granted without carefully considering the question of whether the applicant for bail is a person who can be trusted and one that will faithfully meet any conditions that may be imposed for his bail. It has also been possible because the terms, more particular the cash bail amounts and sureties have been almost negligible.

Finally by way of a final comment, I repeat the comments I made in John Raikos v. The State (supra) in relation to the arguments centred around family difficulties and needs at page 4:

...the grounds advance are factors that should have been consider well before the offence was committed, if indeed, the applicant was involved in the commission of the offence. I hold the view that such factors should not form the basis to grant bail. This is because the kinds of difficulties and hardships advanced are the natural consequences of committing a crime at the first placed. In holding that view, I am also mindful of the fact that an accused person remains innocent until proven guilty according to law. At the same time I am mindful of the fact that a legitimate process also provided for by the Constitution as been set in motion. There must therefore, be a presumption that the applicant has been charged and detained on some proper basis. I believe that is why the Bail Act as been enacted with the provisions of s.9 in it.
_______________________________________________________________
Applicant in person
Lawyer for the State: Public Prosecutor.