N4039
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No. 164 AND MP 165 OF 2010

In the matter of an Application for bail under s. 42(6)
of the Constitution and s.6 of the Bail Act

BETWEEN:

SAMUEL ARNOLD AND AMON KALEX
Applicants

AND:

THE STATE
Respondent

Kimbe: Kawi, J
2010: 10th & 11th May

CRIMINAL LAW - Practice and Procedure – Bail application – Practice and – Offence of armed robbery contrary to Section 386(1)(2)(i)(ii)(iii) of Criminal Code – Section 299(1) – Bail Act – Section 9 (1)(c)(i)(ii)(iii) present in commission of crime – section 9(1)(f) of the Bail Act – likely interference with witnesses is a consideration taken into account – No evidence to show the existence of section 9(1)(a) and section 9(1)(d) Constitution section 42(6) interests of justice – Interest of community and law abiding citizens – Crime of armed robbery – a serious crime – Nature of the crime operates as sufficient factor against bail being granted – Need to balance individual interests of an accused person to be out on bail and protection of community interest. Community interests well encapsulated in the phrase “interest of justice” provision in Constitution section 42(6) and section 3 of the Bail Act – Community interests should prevail over individual interests – Interests of community need to be protected from offenders and alleged offenders-Releasing accused persons back to communities not in the interest of the community – Proposed guarantors are family members and relatives of the two of the accused persons – possible apprehension of bias and placing themselves in a conflict of interests situation – guarantors are not approved. Accused persons have not discharged onus of showing why their continued detention in custody is not justified – Bail is refused.
 
Cases cited:

Re Fred Keating -v- The State [1983] PNGLR 133
Re Herman Kagl Diawa [1980] PNGLR 148
The State -v- Beko Job Paul [1986] PNGLR 97
Cletus Waffi –v- The State, Unnumbered judgment of Kawi J dated 2nd March 2010
Casper Wynneberger –v- The State, Unreported Judgment of Kawi J dated 11th March 2010
Philip Maru and Arua Oa v The State [2001] N2045

Counsel:

Mr. R Awalua, for the Applicants 
Mr C. Sambua, for the Respondent

RULING

11th April, 2010

1. KAWI, J: Stanley Arnold and Amon Kalex are co-accused who have been charged with six counts of armed robbery contrary to Section 386(1)(2)(i)(ii)(iii) of the Criminal Code. They are remanded in custody and are awaiting the committal process to be completed. They both applied for bail under sections 4 and 6 of the Bail Act.

Statement of Facts

2. The Police statement of facts which is annexed to the affidavits of both Samuel Arnold and Amon Kulex, alleges that on the 15th August 2008 at Buvusi section 2 Block No. 1485, Kimbe, West New Britain Province, the accused persons in the company of five other accused persons were alleged to have armed themselves with home made guns, bush knives and calling themselves as J. K Junior Kapis gang held a number of people at Buvusi Block including one Philip Kuria. They stole with actual violence a number of properties including, a box of spear tobacco valued at K32-20, and cash money of K1000 giving a total of K1, 032.00. they are alleged to have contravened Section 386 (1) (2) (i) (ii) and (iii) of the Criminal Code 

The Application

3. In making the bail application the two (2) co-accused swore affidavits dated the 16th April 2010 which they all rely upon. In addition, they also rely upon the affidavits of their guarantors also sworn on the same dates. In the case of Stanley Arnold he nominated and proposed his mother one Erkina Arnold and his uncle one Paulus Umba as the proposed guarantors. Amon Kalex on the other hand nominated his wife Jennifer Amon and his brother Julius Amon as his guarantors. All guarantors pledge a surety of K300.00 each and severally for both applicants to be paid if the accused persons are released on bail and then fail to abide by the bail conditions or skip bail.

The Grounds for Bail Application.

Amon Kalex

4. Amon Kalex relies on the following grounds in support of his application for bail:

(a)	The welfare of his family. In particular, he says he has four Children, out of which three are in Primary School. He says that he is the sole bread winner in the family and his being in jail deprives his family of his continued fatherly support and much needed income to the family. 
 
(b)	The accused has three hectares of oil palm block and with him in jail there is really no one to look after his block. The only other person whom he can rely upon is his younger brother who however is a student at Mora- Mora Technical school.

Samuel Arnold

5. Samuel Arnold relies on similar grounds. 

(a)	He has a young wife who alone cannot manage his three hectares of oil palm block. His parents are old and sick and therefore need his support to survive.

(b)	He argues that he is the only bread winner in the family and his family will suffer with him not being there to support them.

(c)	He owns three hectares of oil palm block which he needs to manage. He needs to be released on bail to do so.

6. The main ground which the accuseds rely upon is that they argue that bail is really a constitutional entitlement and so it must be granted as a matter of course. In this regard heavy reliance was placed upon section 42(6) of the Constitution and the presumption of Innocence provision under section 37(4)(a) of the Constitution. Reference was also made to the often cited case of Re Fred Keating –v- The State [1983] PNGLR 133 for the proposition that even if one or more of the considerations under the section 9 of the Bail Act exists, the Court still has the overriding discretion to grant bail.

Objections by the State

7. Counsel for the State objected to bail being granted. His objection was all based on the section 9 considerations. The first of these objections is based on section 9 (1)(a). It is argued that if released on bail there is a likelihood of the accused absconding bail. The second objection is based on section 9(1)(c)(i)(ii)(iii). It is argued that there were actual threats and actual violence used. The violence consisted of using home made shot gun and bush knives to perpetrate the crime. During the commission of the crime a female victim, one Ms Soti Sika was slashed with a bush knife and punched and kicked. She had to be hospitalized as a result of these severe assaults. The third objection is based on section 9(1)(d). It is argued that the accused may commit other indictable offences while on bail. The final objection is that based on section 9(1)(f). It is argued that the accused may try to interfere with other state witnesses who are all based in the Buvusi oil palm block. 

THE LAW ON BAIL

8. The law on bail is trite law which has been the subject of countless judgments of both the National and Supreme Courts in this jurisdiction in many cases. Since it is trite law, I need not repeat minute details of it save to reiterate the following summary of the legal principles which has been said many times: 

(i)	A person arrested and charged with an offence is entitled under section 42(6) of the Constitution to bail at anytime except for wilful murder and treason but a bail authority still has the discretion to refuse bail “if the interest of Justice otherwise requires’’. See Re Herman Kagl Diawa [1980] PNGLR 148.

(ii)	Section 9 of the Bail Act prescribes circumstances in which bail may be refused. These section 9 prescriptions qualify the right to bail under Constitution section 42 (6). 

(iii)	The existence of one or more of the considerations under section 9 of the Bail Act may operate as a bar to or form the basis for the refusal of bail but that is not automatic. There is a discretion vested in the Bail Authority to grant bail if any applicant for bail is able to show by appropriate evidence that his continued detention in custody is not justified. The existence of one or more of the considerations under section 9 is no reason to refuse bail - See Re Fred Keating [1983] PNGLR 133.

(iv)	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 section 9(2) of the Bail Act, the application of strict and technical rules of evidence and procedure are excluded. 

(v)	The list of circumstances under section 9 of the Bail Act are not exhaustive and conclusive and the court has the discretion to take into account any other considerations forming the basis of a particular bail application.

 9. BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.
 (1) Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:–

(a)	that the person in custody is unlikely to appear at his trial if granted bail;

(b)	that the offence with which the person has been charged was committed whilst the person was on bail;

(c)	that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of–

(i) a serious assault; or

(ii) a threat of violence to another person; or

(iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive;

(d)	that the person is likely to commit an indictable offence if he is not in custody;

(e)	it is necessary for the person’s own protection for him to be in custody;

(f)	that the person is likely to interfere with witnesses or the person who instituted the proceedings;

(g)	that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;

(h)	that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;

(i)	that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody;

(j)	that the alleged offence is one of breach of parole.

9. Let me address the objections put forward by learned counsel for the State and the submissions in reply by the learned counsel for the accused. 

10. The first objection is based on the considerations under section 9(1)(a). That is to say that the accused person may abscond from attending his trial. Apart from relying on the Police Statement of facts, the State did not adduce other affidavit evidence to lay the factual foundation for the court to draw the conclusion which I am being asked to draw. For this reason I find that the State has not established the ground under section 9(1)(a).

11. The second objection is based on section 9(1)(c)(i)(ii)(iii). It is argued that there were threats of violence and actual violence used when the armed robbery was perpetrated. Such violence consisted in the use of offensive weapons namely home made firearms, and bush knives. During the armed holdup a female victim Ms Soti Sika was chopped up with a bush knife, punched and was kicked. She sustained serious bodily injuries and was hospitalized for sometime. I am satisfied as to the existence of all the considerations enumerated under section 9(1)(c)(i)(ii)(iii). I therefore find that the State has made out the considerations prescribed under section 9(1)(c)(i)(ii)(iii). The third objection is based on the consideration under section 9(1)(d). Here it is argued that the accused person is likely to commit an indictable offence if he is released on bail.

 12. Again there is no other evidence adduced by the State to lay the factual foundation for me to arrive at this conclusion. I am not satisfied that this ground has been established by the State. The final objection is based on section 9(1)(f) – That is to say that if the accused is released on bail he may be likely to interfere with State witnesses. The fact that this crime was committed at the Buvusi oil palm block means that primarily the State witnesses will all have to come from Buvusi block. The accused Samuel Arnold proposes to live with his mother at section 1, Buvusi Block, while Amon Kalex also proposes to reside with his wife Jennifer Amon at Buvussi block section 1 block No.1402. In those circumstances there is therefore a risk that releasing the accuseds on bail will result in the accused persons possibly interfering with some State witnesses. 
I am therefore satisfied that the State has established the consideration under section 9(1)(f).

Other considerations

13. Are these the only considerations that I look into? In my view, the factors enumerated under section 9 of the Bail Act are not conclusive and exhaustive. Section 9 of the Bail Act does not prevent the Court from taking into consideration other factors to consider whether bail should be granted or not. This leads me to consider the grounds relied upon by the accused persons in their bail applications. 
 The principal grounds which both applicant rely upon in their applications is their concern for the welfare of their families which includes their wife and children and the health of their parents. Both accused also claim that they are the sole bread winners in their respective families and that their three hectares of oil palm blocks would not be tended to and looked after while they are in jail. 

14. Nothing was put before the court on how each of these respective applicants were caring for or looking after their respective parents before their detention. In fact I would doubt the veracity of these statements from the accused persons. There is nothing on file to show the general living conditions of their families and how the families are now suffering because of the absence of the accused persons who are being held in custody. 

15. In my view the applicants must point to specific instances of suffering; they cannot just rely on some general statements that their family will suffer if they are not released on bail. I agree with the submissions by the learned State Prosecutor, Mr Sambua that the consequences of one's own careless conduct should not form the basis of a bail application. I endorse Mr Sambua's contention that accused persons should have considered the welfare of their families first and foremost before styling themselves as JK junior Kapis and holding up innocent people. After being implicated in this armed holdup and being locked up in custody, family welfare suddenly becomes a matter of great concern and priority. The accused persons did not adduce any evidence at all to show the general living conditions of their respective families prior to them being taken into custody and how the families are now suffering as a result of their detention. I am not convinced at all that family welfare and concerns is a ground on which I can exercise my discretion to grant bail. Being released on bail for the purposes of looking after the oil palm blocks is never a convincing ground warranting the exercise of my discretion to grant bail.

16. I adopt what my brother Kandakasi J said in relation to Family Welfare being raised as a ground for bail in the case of Philip Maru and Arua Oa v The State [2001] N2045
 
"Finally, it is a common claim by all bail applicants that their family will suffer unless they are released from bail. There is the presumption of innocence on the one hand and on the other hand is a presumption that a legitimate process has been set in motion on some proper legal basis. If an applicant's family is put to some suffering of some sort by their arrest and detention, it is their own doing. The effects of their conduct should not form the basis for an exercise of the discretion vested in a bail authority, to decide whether or not to grant bail". 

17. I adopt those comments and apply them as being equally applicable in the circumstances of this case. The consequences of their conduct is not a good convincing ground at all for a bail authority to exercise its discretion to grant bail.
The accused persons have not discharged the onus of satisfying the court as to why their continued detention in custody is not justified.

18. Another ground which I will consider here is the nature of the offence itself. Neither Counsels addressed the Court on this issue. But this does not stop me from considering this aspect in the exercise of my discretion. 

19. In Beko Job Paul [1986] PNGLR 97 Wilson J, made it clear that the nature of the offence itself may have the effect of operating as a sufficient factor to refuse bail, unless the Court is convinced that the continued detention is not justified. In my view, the nature of this case falls into a classic statement by Wilson, J in The State –v- Beko Job Paul 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." In my view the serious nature of this crime of armed robbery warrants the continued detention of the accused persons in custody.

20. The other factor that I have to consider is the interest of the accused person to be released on bail and return to their community, and I must balance those individual interests with the interests of the law abiding citizens of a society at large. 

21. The interests of the society to see offenders deal with promptly and effectively according to law is well encapsulated in the phrase "interests of justice". The notion of interest of justice is included in the provision of Section 42(6) of the Constitution and Section 3 of the Bail Act. In The State –v- Heisi Tau (1999) N1937 Sakora J stated that it:

 "is concerned with protection of the community, the law abiding people, from those who offend (or are alleged to have offended) against them until such time as guilt or innocence are fully and finally determined according to law."

22. His Honour further stated: 

"In my opinion, the inclusion of those exceptions (to the availing of the right or entitlement) was a deliberate legislative act to ensure that interests of justice is accorded due recognition and consideration, and, where appropriate, held to prevail over the individual rights and interests of the accused person. This would suggest that the criminal laws of the country are to be enforced without exception, and equally, and that those who have (or are alleged to have) offended against society or community's laws and rules are made to realize that they have forfeited their right to live and move around freely."

23. The "interest of justice" involves all those considerations prescribed under Section 9 of the Bail Act, considerations such as the prevalence and the nature off and the seriousness of the offence. Bail should not be refused unless the Bail Authority is satisfied on reasonable grounds as to the existence of one or more of those factors or considerations. 

24. Clearly it is in the interests of an accused person to be released on bail. But I am also very mindful of the interests of the society as noted above and the law abiding citizens which needs to be protected at all times from offenders or from those who are alleged to have offended. In my view the interests of the wider community of law abiding citizens should prevail at all times over an individual interest of an accused persons.

25. Accused persons must realize that they have forfeited their rights to live and move around freely in society, the moment they are suspected of a crime and are arrested and taken into lawful custody. They have forfeited that freedom. The interests of the law abiding citizens must be protected from such offenders or those who are alleged to have offended. 

26. The Court therefore finds that the nature of and the seriousness of the crime of aggravated armed robbery in this case is a serious matter warranting the continued detention of the accused in custody. The interests of the wider community of law abiding citizens militate against the accused persons being released on bail.

27. The other consideration which I address is the arguments by learned counsel for the applicants around the accuseds right to bail under Constitution section 42(6) and his presumption of innocence guaranteed by section 37(4)(a) of the Constitution. 

28. It is true that every person charged with an offence is presumed innocent until proven guilty according to law. It is also true to say that a person charged with or arrested or detained for an offence (other than treason or wilful murder) is entitled to bail at all times form arrest or detention to acquittal or conviction unless the interest of justice otherwise require.

29. However, it is important to note that the right to bail prescribed under section 42(6) of the Constitution is not an absolute, automatic and self executing Constitutional right. 

30. In my opinion the section 42(6) right to bail is a qualified right and not an absolute, self executing right. It is qualified by the prescriptions or the considerations under section 9 of the Bail Act.

31. It appears that the submission by the learned counsel for the two (2) accused persons proceeded on the basis that because of Constitution section 42(6) and 37(4)(a), bail is a matter of course. In other words, bail is automatic. This in my judgment is quite erroneous. In my view, a person cannot be unnecessarily detained in custody unless he or she is suspected of having committed a crime, whilst the whole criminal justice process to determine his or her innocence commences. While an accused person remains innocent, until proven guilty according to law, the same Constitution also provides for a legitimate legal process to be set in motion, the moment he or she is taken into custody. There is therefore a presumption that an accused person who is charged and detained is so held on some proper legal basis. 

32. This is so in the present case. The two (2) accuseds are held in custody because it is alleged that they acted in concert with each other to perpetrate an armed hold in which one of the victims was injured and sustained serious bodily injuries.
They are therefore held in custody for good legal reasons.

33. In my view under Constitution section 42(6) and section 9 of the Bail Act, bail is not automatic as submitted by learned counsel for the two accused persons. It would therefore be erroneous to think that because of these constitutional prescriptions bail would come as a matter of course, or that bail is automatically granted when an applicant requests for bail. 

34. In the Courts view a Bail Authority should carefully consider the interests of the applicant to be left out on bail and the wider interests of society to have offenders dealt with according to law once they are brought before the Courts in a manner that is prompt, effective and less costly. This involves the Bail Authority taking into account the considerations under section 9 of the Bail Act and such other factors the Bail Authority considers appropriate in deciding whether or not to grant bail. 

35. For all these reasons, I find that the two (2) accused persons have not discharged the onus of showing why their continued detention in custody is not justified. 

36. Bail is therefore refused and the accuseds are to be further remanded in custody until the trial of this matter or until such a time when the Supreme Court or a differently constituted Court grants bail pursuant to section 13 of the Bail Act.

Guarantors 

37. The accused persons have nominated two persons each as guarantors. 

38. In the case of Stanley Arnold, he nominated his own mother, one Mrs. Erkina Arnold and his uncle Mr Paulus Umba. Amon Kalex on the other hand nominated his brother Julius Kalex and His Wife Mrs. Jennifer Amon. 
In their respective affidavits all guarantors pledge a surety of K300.00 each which they say they will pay if the accused persons are released on bail and either skip bail or breach their bail conditions. They further depose that the offenders have been "decent, honest and peace loving persons". They further undertake to ensure that the offenders do not skip bail and abide by every bail condition that is set by the Court if bail is granted. 

39. In their respective affidavits, all the guarantors depose that the offenders have been "decent, honest and peace loving persons". I find this statement to be a contradiction with the fact that the accuseds are now charged with a serious indictable offence, the very nucleus of it being acts of dishonesty, deceit, indecency and violence. To classify the accused persons as "decent, honest, peace loving persons" may turn out to be a misnomer after all. I accept all the pledges of the guarantors. But what concerns me is this: All guarantors are family members of the accused persons. Being family members there is really no guarantee that the accused persons will listen to or take heed of the advice of a family member let alone, the wife of an accused person or his brother as in the case of the accused Amon Kalex or an old sick mother and an uncle as in the case of the accused Stanley Arnold. I have very grave doubts that these guarantors will ever exercise some kind of restraining influences upon the accused persons if released on bail. So even if I release the accused persons on bail, there is no guarantee that they will ever listen to their mothers, wives, brother or uncle and place themselves again under their restraining influence. I therefore have very grave doubts about the strict observance and adherence to the bail undertakings by the applicants and their guarantors. I find that the bold Statement that the accused persons have been "decent, honest and peace loving persons" may be more a misnomer than a genuine expression of frankness at its highest.

40. No doubt I would have readily approved of the guarantors, but for the fact that they are the biological family members of the two applicants. In so saying I am very mindful of the caution issued by the Supreme Court when dealing with guarantors who are relatives or family members. The Supreme Court has said in no uncertain terms that relatives and family members run the risk of placing themselves in a conflict of interest situation or by acting as guarantors for relatives and family members there is an apprehension of bias involved. The Supreme Court when refusing bail in Charlie Posanau & David Koyama v. The State made these cautionary remarks in relation to guarantors who are related to the applicant: - 

 "We have noted that, the proposed guarantors are all related to the two applicants. On these grounds we are of the view that there may be some apprehension of bias and conflict of interests involved. The risk of absconding bail would be much higher as compared to a guarantor who was a neutral person." Malaki Kongo & Joe Akusi v. The State [1996] N1544. See also Paul Guan v. The State [1999] N3576.

41. I reiterated this caution in a number of cases where I refused bail. In Cletus Waffi –v- The State, unnumbered judgment of Kawi J dated 2nd March 2010, I refused to approve the elder brother and uncle of the prisoner as guarantors. Similarly in Casper Wynneberger –v- The State, Unreported Judgment of Kawi J dated 11th March 2010, I refused to approve the wife of the prisoner as the proposed guarantor. In both cases I said this: 

As much as possible applicants for bail must be very careful when nominating relatives and family members as guarantors. Persons who accept to be guarantors should be neutral persons. I do accept that because these are all family members there is a reason to argue that there may possibly be some apprehension of bias and conflict of interests involved. The fear of absconding bail is real here than if a neutral person was nominated. I would not approve the two guarantors as proposed.

42. I would adopt and apply those comments here. The chances of the guarantors placing themselves in a conflict of interest situation is very real here than if neutral persons were nominated. There is also the possible apprehension of bias on their part which I find is real here than if neutral persons were to be nominated. I doubt that the guarantors will do any better job now than they were before the commission of the crime. Despite their many undertakings I am not convinced at all the accused persons will ever listen to their guarantors or bring themselves under their restraining influences. If the two (2) accused persons were law abiding, "honest, decent and peace loving" citizens as they claim they are, then they would not have styled themselves as "JK Junior Kapis" and allegedly involved in the armed hold up.

43. For all these reasons the court will not approve the nominated persons as guarantors and bail is hereby refused and the accused persons are further remanded in custody until a proper trial of this case. 

_______________________________________________________________
Paraka Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent