Biyari v State [2008] PGNC 277; N5311 (31 January 2008)

N5311

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 1 OF 2008

BETWEEN:

PETER BIYARI
Applicant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Hartshorn, J.
2008: January 31st

Application for Bail – s. 42 (6) Constitution and 9 (1) (a), (c) and (f) Bail Act considered

Cases cited:
Papua New Guinea Cases

Re Bail Application, Fred Keating v. The State (1983) SC257
Re Diawo [1980] PNGLR 148

Overseas Cases

R. v. Slough Justices, Ex parte Duncan and Another (1982) 75 Cr. App.R.384

Counsel:

Mr. M. Norum, for the Applicant
Mr. J. Sebbie, for the Respondent

31st January, 2008

1. HARTSHORN, J: The applicant Peter Biyari, has been charged with 5 different offences. They are:

a) hijacking an aeroplane contrary to s. 260 Civil Aviation Act,

b) conspiracy to hijack an aeroplane contrary to s.515 Criminal Code,

c) unlawfully taking a firearm on board an aircraft contrary to s. 267 Civil Aviation Act,

d) unlawful detention contrary to s. 355 Criminal Code,

e) armed robbery contrary to s.386 Criminal Code.

2. He applies for bail.

3. The applicant has sworn an affidavit in support of his application for bail. In the affidavit the applicant does not admit or deny the charges although his counsel informed the court that the applicant was not involved in the incident that led to the charges being laid.

4. The applicant deposes in his affidavit inter alia, that, he is married with 5 children, he is the only 'breadwinner' for his family, he resides at Gerehu in houses that he owns, he is and has been employed with Air Niugini as a driver for 15 years, he was arrested on 19 November 2007 and was badly assaulted by policemen, he escaped 3 days later from the Waigani National Court cells because he wanted to seek medical attention for his injuries which he believed were life threatening and that he voluntarily surrendered to the Police Commissioner and others on 12 December 2007.

5. The State objects to bail as it contends that since his arrest, the applicant has already escaped from lawful custody and has been found guilty of so doing. There are grounds for believing therefore that the applicant is unlikely to appear at his trial if granted bail as he is likely to abscond. This is a consideration under s. 9(1)(a) Bail Act in respect of which a bail authority, if it is satisfied on reasonable grounds, can refuse bail.

6. The State further objects to bail as it contends that the alleged acts constituting the offences consist of serious assault and the threat of violence to other persons which are considerations under s. 9(1)(c)(i) and (ii) Bail Act in respect of which a bail authority, if it is satisfied on reasonable grounds, can refuse bail.

7. Finally, the State objects to bail as it believes the applicant is likely to interfere with witnesses or persons who are suspected of being involved in the incident out of which the charges have been laid, who are yet to be apprehended. This is another consideration under s. 9(1)(f) Bail Act in respect of which a bail authority, if it is satisfied on reasonable grounds, can refuse bail.

8. The State has introduced into evidence 1 affidavit in support of its objections to bail. This is the affidavit of the current Acting Public Prosecutor Mr. Ravunama Auka. Mr. Auka introduces into evidence by way of an annexure to his affidavit, a true copy of the statement of Detective Chief Sergeant Charles Winuan (DCS Winuan), the investigating officer in the applicant's case.

9. DCS Winuan states inter alia, to the best of his knowledge and belief, the circumstances surrounding and the facts of the applicant's escape and subsequent surrender, that the applicant is the principal offender involved in the planning, conspiracy and execution of the hijacking of the aeroplane and the armed robbery incidents, that the applicant funded and hired 2 dinghies and a Toyota utility to facilitate the commission of the offences, that firearms and a walkie talkie that were used have not been recovered, that if the applicant was granted bail he would conspire with other accomplices still at large to conceal those weapons and other evidence, that the applicant might interfere with witnesses, that the applicant had escaped in the past, that he could be a threat to the investigation officer and state witnesses if released on bail, that two other principal offenders had not been apprehended and that the applicant was not cooperative with police in assisting them with their enquiries concerning the offences.

10. There are 2 affidavits sworn by persons who are willing to be guarantors for the applicant. They both depose that they are aware of the responsibilities of a guarantor and that they both are willing to pledge K500 surety each. The applicant proposes a sum of K2000 that he can post as bail.

11. The right to bail is guaranteed by s 42(6) Constitution. Section 9 Bail Act sets out the criteria for refusing bail. In Re Bail Application, Fred Keating v. The State (1983) SC257, the Supreme Court said:

"When considering the grant or refusal of bail in cases other than wilful murder or treason, the courts and other bail authorities are to be guided generally by s.9. But whilst the Bail Act is a complete code in dealing with the grant or refusal of bail, by s.3, in matters other than wilful murder or treason, the bail authority may still have to consider the question of the interest of justice. This may involve considerations other than the criteria for refusing bail as established in this section."

12. The Supreme Court also held that the existence of any of the factors under s. 9 Bail Act does not automatically operate as a bar to the grant of bail. Instead, the court or the bail authority has the discretion to decide whether to grant bail, having regard to the particular circumstances of each case and in the interests of justice.

13. There is undisputed evidence of the applicant's escape from lawful custody after his arrest. He was convicted by the District Court for the escape. The applicant states that the reason that he escaped was because he required medical attention for the injuries he suffered as a result of being assaulted by policemen. Counsel for the applicant contended that when the applicant escaped he could have remained at large. Instead, he voluntarily surrendered, and that this was evidence that the applicant was not likely to escape again.

14. On the evidence of the applicant however, he did not 'surrender' until about 20 days after his escape. To my mind, if the applicant only escaped to receive medical attention one would have thought that he would have returned to custody after receiving the medical attention sooner than he did. As to the allegations of assault by policemen, these allegations are serious and should be brought to the attention of the Police Commissioner. It is not incumbent upon this court to consider the allegations further unless or until any charges are brought before the court in relation to the allegations.

15. The fact that the applicant states that he escaped only to receive medical attention does not excuse the act of escaping. If the applicant has already escaped for what he believed was a valid reason, it can be rationally assumed that if the applicant has another valid reason he will attempt to escape again.

13. From the Police summary of facts, there are inter alia, allegations of the possession of firearms and the use of those firearms to threaten the pilots. This is based on the belief of DCS Winuan.

14. There is evidence of the belief of the investigating officer that the applicant is likely to interfere with witnesses or with the continuing police investigation into the incident. The grounds for this belief are that the applicant has escaped before, there are other persons thought to be involved in the incident yet to be apprehended, firearms and a walkie-talkie used in the incident are yet to be recovered and the applicant has not been cooperative with the police.

15. In Re Fred Keating (supra) Andrew J. said at p. 140:

"...before the discretion to refuse bail arises, the court has to be satisfied that there are substantial grounds for believing that one or more of the events described in s.9(1)(a) – (g), will happen. It is the existence of substantial grounds with the belief, not the belief itself, which is the crucial factor: See R. v. Slough Justices, Ex parte Duncan and Another (1982) 75 Cr. App.R.384."

Also in Re Diawo [1980] PNGLR 148, Kapi J. (as he then was) reiterated the need to produce evidence to substantiate the belief of the likelihood of interference.
15. I am satisfied on reasonable grounds as to 3 of the conditions listed in s.9(1) of the Bail Act in this instance. I am also satisfied that in the particular circumstances of this case it is not in the interests of justice that I should exercise the court's discretion and grant bail.

16. Accordingly the application by Peter Biyari for bail is refused.
_____________________________________________________________
Office of the Public Solicitor: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent