N3613

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO. 538 OF 2008

THE STATE

V

TAMARA PLAYER

Waigani: Batari J
2009: 11, 17 March

CRIMINAL LAW — Practice and Procedure — Bail Application — Offence of accessory after the fact — Applicant alleged to have assisted prison escapee involved in two bank robberies involving millions of kina - Grounds for bail - Onus of Proof — State to show one or more of considerations under s.9 of the Bail Act exist - Exercise of discretion — Interest of justice — Serious nature of case – Whether release on bail is in interest of justice - Onus of proof on applicant — Onus not discharged.

Bail Application

This is an application for bail on a charge of being an accessory after the fact.

Case Cited:
Re: Keating [1983] PNGLR 133
The State v. Beko Job Paul [1986] PNGLR 97.

Counsel:
D. Dotaona, for the Applicant
L. Wawun, for the State

17 March, 2009

1. BATARI J: The applicant, a British citizen of Britain and PNG parentage is alleged to have received or assisted another person namely, William Kapis Nanua, an escapee who was to her knowledge, wanted by police for the BSP Kerema and BSP Madang bank armed robberies, in order to enable him to escape punishment. She is charged with the offence of being an accessory after the fact pursuant to Sections 519 and 10(1) of the Criminal Code. Tamara was initially charged with armed robbery upon her arrest and detention on 23rd July 2008. She has been held in custody since. 

2. She now applies to be released on bail pending her trial. In support of her application, she relies on her own affidavit and the affidavits of her two proposed guarantors, Thomas Kahai and Dr. Karol Popei. The three affidavits were filed on 28th November, 2008. 

3. The application is opposed by the State on a number of contentions. The objection is supported by two affidavits each sworn by Ms Laura Wawun of Counsel for the State, filed on 5th and 10th March 2009 respectively. In her first affidavit, Ms Wawun attached the affidavit of Const. Manson Tutuni which sets out the basis for the objection to bail. The second affidavit which attached the statement of Sgt. Apollos Terry is confined to circumstances surrounding the arrest of the principal accused William Kapis Nanua and others, suspected in the robbery of the BSP Madang bank. 
 
4. Sections 3 and 6 of the Bail Act gives a person who has been arrested or detained for an offence (other than treason or wilful murder), the right to apply to a court for bail at any time or stage of a proceeding. These sections follow the constitutional right to bail under s.42 (6) of the Constitution which makes it obligatory on the bail authority to grant bail unless the interest of justice requires otherwise. The onus is on those who oppose bail to show why bail should not be granted and the criteria for refusal of bail is set out under s. 9 (1) of the Bail Act. 

5. It is apparent from the scheme of the Constitutional provision and the Bail Act that the entitlement to bail is vested in the defendant at all times until the case is finally determined by conviction or acquittal. This constitutional and statutory entitlement to bail gives the applicant in a bail application a head start with huge presumption in his or her favour. 

6. In opposing bail, the State raises a number of matters under s. 9 (1) of the Bail Act. The grounds are not precisely spelt out, but may be summed up from the affidavit of Const Manson Tutuni and the allegations that:
 
1.	The alleged offence, constituting the principal offence in respect of which the applicant is currently detained consist of a serious assault and possession of offensive weapon, namely firearms (s. 9 (1) (c)),
2.	It is necessary for the applicant’s own protection to be in custody (s. 9 (1) (g)),
3.	The principal offence of robbery involved property of substantial value that has not been recovered and the applicant if released may jeopardize police investigations. (s.9 (1)(h), interference with witnesses and s.9(1)(g) likely to conceal or deal with the properly).

7. When deliberating the question of bail, one need not consider the material or information available in support of or against bail in minute detail and apply to it, the higher standard of proof. This follows from s. 9 (2) of the Bail Act which provides that the Court is not bound by technical rules of evidence but may act on such evidence as are available to it. This in my view extends to discretionary admission of facts in the interest of justice. If I am satisfied on reasonable grounds that one or more of the matters set out in s. 9 (1) is established on the evidence available to the Court, bail must be refused. 

8. There is however discretion to grant Bail. The onus is on the applicant to satisfy the court on reasonable grounds that his or her further detention in custody is against the interest of justice.

9. On the first ground of objection, the alleged facts directly implicated Ms Tamara Player in assisting a prison escapee and principal suspect in the Kerema BSP robbery on 17 June 2008 and Madang BSP Bank robbery on 5 July 2008 to escape punishment. About a week after the Madang robbery in which K2,407,315 was stolen, police detained Ms Player and found in her possession, K127,000. Police also recovered from her home, police issued uniforms, firearms and ammunition. The money and items recovered from her home were allegedly connected to the bank robberies. 

10. I am satisfied the facts alleged against the prime suspect of the bank robbery and escapee, William Kapis Nanua involved threats of violence and possession of firearms. The applicant is charged as an accessory to the escape and robbery allegations. Section 9 (1) (c) against bail is in my view, established.

11. On the question of whether the further custody of the applicant is necessary for her safety, there is no direct evidence or suggestion supporting potential security risk against her if released from custody. The affidavit of Manson Tutuni merely asserts protective custody and may be speculative. 

12. But when one considers the nature and enormity of the two bank robberies, the millions of kina which were stolen and the possibility of a network of others implicated still at large, the potentiality of collusion, conspiracy, threats, intimidation and other underarm tactics to avoid detection is a real possibility. It is not hard to imagine stakeholders and other beneficiaries of the bank robberies proceeds adopting means or extreme measures to hush up or even eliminate sources of threats for their own self preservation. 

13. So, it might just be possible that, release of the applicant from custody will be to her own detriment at this time. I conclude that s. 9(1) (g) is a legitimate proposition against bail unless she shows otherwise that the interest of justice requires her release from custody. 

14. The ground against bail in paragraph 3 mounted under the auspicious of jeopardizing police investigations, raises the issues of interference with witnesses (s. 9 (1) (h)), and a likelihood of concealing or otherwise dealing with substantial amount of property that has not been recovered (s.9(1)(g)). 

15. It is relevant on this issue to consider the extent of implications against the applicant. Tamara Player is alleged to have hired a vehicle used by escapee and principal bank robberies suspect, William Kapis Nanua in his attempts to evade detection and arrest. She was arrested with K127,000, a set of police uniforms, two pistols and ammunition in her possession. A dinghy allegedly used by the principal suspect to escape to the National Capital was also kept at her premises. There is prima facie, a strong case against her. 

16. The bank robberies in Kerema and Madang left a trail of possible suspects traversing several provincial locations including Madang, Lae, Kimbe, Kerema and Alotau, Aroma in the Central Province and Port Moresby. This suggests a well planned and organized network of myriad proportions involving many people to raid and siphon-off millions of kina from the two banks. The plan initially worked smoothly until someone ‘spilled the bean’. The magnitude and complex nature of the principal robbery offences allegedly masterminded by an escapee is no doubt, difficult to investigate by police and it is not surprising that investigations are still continuing. 

17. The applicant is only one of the many that are implicated. The information before me thoroughly implicates her in assisting a prison escapee and principal robberies suspect, William Kapis Nanua subsequent to the Kerema and Madang bank robberies. She does not appear to be related to him. Hence, her involvement suggests a personal relationship with the principal suspect. It can also point to others having her in their confidence and trust to assist in the plight of William Kapis Nanua and cover-up of the robberies. Many of those involved are still at large and being investigated by police. 

18. There may be less obstruction to smooth police investigations if those already detained remain in custody until completion of investigations or a change in circumstances favouring bail, occurs. Real possibility of interfering with police investigations and witnesses or accessing and dealing with monies of substantial amount that has not been recovered exists, if persons alleged to be accessory after the facts are released on bail. They can easily make contact and collude with associates, currently at large. This is not mere conjecture. The millions of kina stolen have raised the stakes very high. The money could not have just vanished into thin air. 

19. In my conclusion on the matters raised, reasonable grounds exist to believe that the principal offence in respect of which the applicant is currently detained consists of threats and possession of firearms (s. 9 (1) (c)). I am also satisfied on reasonable grounds that, it is necessary for the applicant’s own protection to remain in custody (s. 9 (1) (e)). 

20. Further, the principal offence of robbery involved property of substantial value that has not been recovered and the applicant if released may jeopardize police investigations. This generalized statement from the affidavit of Manson Tutuni is suggestive of possible interference with witnesses (s. 9 (1) (h) and likelihood of concealing or otherwise dealing with the properly if released on bail (s.9 (1) (g)). 

21. In my view, the possibilities are real and reasonably grounded on facts and inferences to be drawn from all the circumstances of this application.

22. Notwithstanding those considerations enumerated in s. 9 (1) of the Bail Act, other relevant considerations like the nature of the offence itself or the strength of evidence against the accused may be considered as sufficient factor to refuse bail unless the court is persuaded that the continued detention of the applicant is not justified: Re: Keating [1983] PNGLR 133; The State v. Beko Job Paul [1986] PNGLR 97.

23. In this case, the enormity and complex nature of the case is seen in successful infiltrations and violations of bank securities, to rob two banks in succession. And the success of those bank robberies had attracted huge public interest. Against the applicant, there is clear and prima facie conduct which suggested intimate knowledge and a deliberate choice to assist hide a fact to help suspects escape punishment. Millions of kina have just been stolen in the two bank robberies and the applicant had provided transport and offered a safe haven to the prime suspect in his bid to escape detection. She is heavily implicated. 

24. These considerations in my view are sufficient to negative the presumptive right to bail under s. 42 (6) of the Constitution and the Bail Act. In my view, the nature of this case falls into a classic statement by Wilson J in The State v. Beko Job Paul (supra) which I adopt that, "the interests of justice are not served by failing to give special significance to this type of crime and the consequences that flow, or could flow from it". 

25. I would refuse bail for the foregoing reasons.

26. On the discretionary question of whether I should grant bail "in the interest of justice", the applicant has the onus to show her detention in custody is not justified: per Andrew, J in Re: Keating (supra).
 
27. In this case the applicant has, in support of her application, set out in her affidavit, personal particulars and undertakings she would make if granted bail. The main ones are that:
 
1.	she is separated with two young children ages 3 years and 5 years.
2.	she has lost her job as Logistic Manager with Digicel.
3.	her British passport has expired and pending renewal.
4.	she would live with her mother at Rainbow Estate, Gerehu.
5.	she would not commit any offence whilst on bail.
6.	she will not interfere with witnesses.
7.	she has 2 guarantors who would each pledge K500.
8.	she is prepared to post K500 cash bail if imposed by the court.
9.	she would comply with other bail conditions the court may impose.

28. The applicant has not submitted anything of substance beyond personal background and the usual undertakings on matters under s.9 (1) of the Bail Act. The state has on the other hand, established a strong basis for refusal of bail. I have also raised relevant issues that are open on the information before the court and pertinent to the question of discretion. The applicant paid no or little attention to those matters. 

29. I do not consider the applicant's mere assertion of personal and family background sufficient to justify her immediate release on bail in such a serious case of public importance as this. 

30. If anything, the information before me suggests the applicant’s children are well housed with her own mother - their grandmother and there is no suggestion of any difficulty with that arrangement. She has been terminated from her job so; there is no fear of losing a job. She has not raised any health issue or conditions of her current detention that might be detrimental to her own heath or defence. Besides her instructions to deny the charge and her proposed undertakings, there is virtually nothing else submitted in response to those matters raised against bail to show that her further detention is not justified.
 
31. In my conclusion, Ms Tamara Player has not shown reasonable circumstances to sway my discretion in her favour. Bail is refused. The applicant is at liberty to make further application under s.6 of the Bail Act at any stage of the proceedings to this court or the Supreme Court.

________________________________
Public Prosecutor: Lawyer for the State
Dotaona Lawyers: Lawyer for the Applicant