Noki v State [2010] PGNC 68; N4072 (12 March 2010)

N4072

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No. 41 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:

DERRICK NOKI
Applicant

AND:

THE STATE
Respondent

Waigani: Kawi, J
2010: 08th & 12th March

CRIMINAL LAW – Practice and Procedure – Bail application – Offence of armed robbery – Section 386(1)(2)(a)(b)(c) Criminal Code – Considerations under section 9 of the Bail Act apply. Interests of Justice under section 42(6) of the Constitution – Interests of an accused person need to be weighed against interests of community – Interests of community prevails over interests of individual accused – Interests of community need to be protected. Neutral persons as guarantors approved but bail refused.

Cases cited:

Herman Kagl Diawa [1980] PNGLR 148
Re Fred Keating v The State [1983] PNGLR 133
Heisi Tau vs The State [1999] N1937

Counsel:

Mr. A. Furigi, for the Applicant
Mr. D. Kuvi, for the Respondent

RULING

12th March, 2010

1. KAWI, J: Derrick Noki applied for bail pursuant to Section 4 and Section 6 of the Bail Act. He is charged with aggravated armed robbery under Section 386(1) (2) (a) (b) (c) of the Criminal Code. He appeared from custody to move this application through his counsel. In support of his application he filed and relied upon three (3) affidavits.

(a) His own affidavit sworn on the 15th February 2010;

(b) The affidavit of Mr. Kisi Naum sworn on the 22nd February 2010; and

(c) The affidavit of Captain Poana Kalo sworn on the 17th February 2010.

2. Mr. Kisi Naum and Captain Poana Kalo are nominated as the guarantors.

3. Both Kisi Naum and Captain Poana Kalo pledge a surety of K 500.00 to be paid if the accused absconds from bail.

4. From the submissions by learned counsel for the accused, the following emerge as the grounds relied upon in this application: -

(a) The accused should be granted bail and then await the committal process. He argues that the committal process is slow and he has been already in custody for two months. A grant of bail would thus enable him to prepare his case.

(b) The accused’s total denial and knowledge of any involvement in the commission of the offence.

(c) The over-crowdedness, unhygienic and unhealthy conditions of the Bomana cell where the accused is being held in custody. In his regard, the accused obtained a letter from the Commanding Officer of the Bomana Corrective Institution, one Chief Superintendent Mathew Bine who says that due to overcrowding in the cells, there is a risk of contracting contagious diseases in cells.

(d) The accused is also the son of a Senior Committal Magistrate, Mr. Bill Noki and for this reason he has been subjected to abuse, threats, harassment and intimidation from other accused persons and prisoners who were either sentenced to jail or committed to stand trial in the National Court by his father Magistrate, Mr. Bill Noki. Chief Superintendent Mathew Bine also states this in his letter of support.

(e) Finally it was argued that the welfare of his family is a factor that should be taken into account in exercising my discretion. In this regard the accused says that he has an infant child, who needs the tender love and care of his father, and his second child is expected anytime soon.

THE FACTS

5. The accused is charged under Section 386(1) (2) (a) (b) (c) of the Criminal Code. The statement of charge which is marked as annexure “B” to the affidavit of the accused alleges that on Monday 15th November 2009 the accused acting in concert with other accomplishes, namely Henry Siro Kuimare, Patriarch Logie and another unknown person, held up the premises of Cabaran Ikhias (PNG) Limited situated along Aviat Road, Konedobu, National Capital District, and stole money and office equipment with actual violence from one Carolyn Yamuna, the Office Manageress of that company.

6. It is alleged by Police that the accused and his accomplishes drove in a grey Toyota Camry into the premises of Cabaran Ikhias and held up Carolyn Yamuna at gunpoint and ordered everyone including the said Carolyn Yamuna to sleep on the floor, while the accused and his criminal accomplishes allegedly demanded the company payroll in cash money. The accused was identified by the employees of the company as being armed with a pump action shotgun black in colour at the time when the robbery was being perpetrated.

7. It is also alleged that during this robbery the accused and his two accomplishes were armed with two (2) factory made .38 revolver pistols and one (1) factory made pump action shotgun when they walked into the office of Carolyn Yamuna and held her and the staff up at gun point and stole with actual violence the following properties: -

(a) 1 x digital camera valued at K 2, 000.00;

(b) 6 x IBM brand Laptop computers valued at K 15, 000.00;

(c) 1 x Samsung flip top mobile phone valued at K 1, 200.00;

(d) 4 x Nokia brand 1202 mobile phones; and

(e) K 400.00 cash money of K 2, 380.00.

8. All these items were valued at K 20, 980.00.

9. In my view, the fact that the accused was seen arming himself with a factory made pump action shotgun black in colour during this robbery is sufficient to implicate the accused’s role in this robbery despite his vehement denials of any involvement at all in this robbery.

THE LAW ON BAIL

10. The law on bail has been clearly stated in many cases. Section 42(6) of the Constitution guarantees ‘’every person charged, arrested or detained for an offence other than treason and willful murder to bail at all times from arrest or detention to acquittal or conviction unless the interest of Justice otherwise requires’’. In the case of Herman Kagl Diawa [1980] PNGLR 148, Kearney, DCJ reiterated an accused person’s right to bail as follows; ‘’it is clear from Section 42(6) of the Constitution that an applicant is entitled to bail during the course of his trial, unless the interest of Justice otherwise requires.”

11. The Bail Act then gives effect to Section 42(6) of the Constitution. This right to bail is however not automatic. The right to bail is qualified by the prescriptions enumerated under Section 9 of the Bail Act. This means that Section 9 of the Bail Act sets out the criteria which may operate as a bar to the grant of bail. However bail should not be refused for this reason alone. The Supreme Court decision in RE Fred Keating [1983] PNGLR 133 now makes it clear that even if one or more of the considerations under Section 9 are shown to exist, the court still has the discretion to grant bail, with the applicant bearing the onus of satisfying the court as to why his continued detention in custody is not justified. Section 9 of the Bail Act is in the following terms;

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.

STATE OBJECTIONS

12. Learned counsel for the State objected to this application raising the existence of the considerations enumerated under Section 9 of the Bail Act as the ground upon which bail should be refused.

13. The first objection is based on Section 9(1) (g). It is argued that the alleged robbery offence involves property of substantial value that has not been recovered and the accused if released would make efforts to conceal or otherwise deal with these properties.

14. The summary of facts highlights the properties which were stolen and their combined value. Included amongst these valuable properties is a large amount of money that was also stolen.

15. The State says that all these properties are still missing and releasing the applicant on bail may hamper police efforts to recover these monies and properties.

16. I accept this submission and find that the State has made out the consideration under Section 9(1) (g) of the Bail Act. In arriving at this conclusion, I take into account the fact that the accused was positively identified by the company employees during the robbery as one of the gun totting gangsters who had armed himself with a factory made black pump-action shotgun.

17. The next objection is based on Section 9(1)(f). The State submitted that the accused and his co-accused, one Patriarch Logie had approached certain witnesses and had interfered with them. For this reason the State submits that bail should be refused. Admittedly the State did not file any affidavit materials to lay the factual basis of this allegation. I am therefore unable to arrive at the conclusion which I am being asked to draw. I therefore make a finding that the objections based on Section 9(1) (f) have not been made out.

18. The other objection is that the alleged acts constituting the offence of robbery involved;

(i) serious assaults,

(ii) threats of violence and actual violence was used in perpetrating this robbery,

(iii) possessing offensive weapons, namely high powered factory made firearms in execution of the robbery.

19. In my opinion although the accused vehemently denied any involvement at all in this armed robbery, that alleged fact of him being identified as one of the gun totting gangsters is sufficient to bring into play the considerations enumerated under Section 9(1)(c)(i)(ii)(iii). I do find that the State has established the objections based on Section 9(1) (c) (i)(ii)(iii). The State submitted that the co-accused, Patriarch Logie had his bail refused and so I should like wise refuse bail here. I cannot refer to Patriarch Logie's case as learned counsel failed to provide a copy of the judgment in that case to me and so I will deal with this case on its own merits. But the denials by the accused and his plea of innocence does not absolve him of the existence of the considerations under Section 9(1)(c)(i)(ii)(iii) when this robbery was perpetrated.

OTHER CONSIDERATIONS

20. Counsel for the accused submitted that I consider the grounds which he submitted and relied upon and nonetheless exercise my discretion to grant bail citing the often cited case of Re Fred Keating v. The State [1983] PNGLR 133 as authority for the proposition that even if one or more of the considerations under Section 9 exists, I should nonetheless exercise my discretion to grant bail. He says the grounds he cited are sufficient to discharge the onus of showing why his continued detention is not justified.

21. It was argued that the accused is the son of a Senior Committal Magistrate in the District Court and for this reason, he has been abused, threatened, harassed and intimidated by other inmates who were imprisoned by his father Magistrate Mr. Bill Noki. The letter from Chief Superintendent Mathew Bine the Commanding Officer of Bomana goal was tendered and cited in submissions as supporting this contention. I find that if anything this is a complaint which squarely falls within the jurisdiction of Chief Superintendent Mathew Bine to address. Instead of shifting that responsibility to the Courts, Chief Superintendent Mathew Bine as the Commanding Officer of Bomana Jail, should take ownership of his complaint by putting in place strategies and measures to counter and attend to such complaints from inmates. The Bail Act is not the avenue to solve such problems and it is not intended to solve problems of inmates fighting, harassing, threatening or intimidating each other.

22. I find that the letter from Chief Superintendent Mathew Bine is really nothing but a self serving letter calculated to simply advance the cause of an applicant for bail.

23. The fact that the accused is a son of a Committal Magistrate is not a convincing reason in itself that warrants the exercise of my discretion in his favour. I do not find this ground convincing enough to warrant me exercising to my discretion to grant bail.

24. It was also argued that the cells housing the accused is overcrowded with other inmates and so the chances of contracting contagious diseases are very high indeed. Again the commanding officer of Bomana Jail, Chief Superintendent Mathew Bine in his letter also mentioned this factor. The accused in his affidavit does not depose to any facts at all concerning over-crowdedness in the cells. Neither does he point to the maximum number of prisoners a cell block can hold and the minimum number a cell block can take. I am only left with what Chief Superintendent Mathew Bine says. Since what Superintendent Mathew Bine says is not deposed to in anyway by the accused, I find that, what he says is simply an excuse calculated by a Senior Prison officer to advance the cause of an applicant for bail. Sakora, J was confronted with a similar argument as a ground for exercising his discretion to grant bail in the case of Heisi Tau v. The State [1999] N1937. I quote what His Honour said; -

"As for the overcrowded, unhygienic and unhealthy environment at the Buimo Gaol, this problem is not an isolated one. All prisoners throughout the country suffer from these conditions, arising directly from a continuing lack of political will to adequately fund the operations of the Corrective Institutions Service.

All inmates of the institutions throughout the country suffer because of insufficient funds to house, feed, clothe and attend to the health, social and religious welfare of the inmates. And the direct responsibility for these rests with the Executive Government of the country. Thus, the Bail Act is not intended to be used to solve problems of overcrowding and unhealthy conditions."

25. I say that the concerns expressed by Chief Superintendent Bine remains the responsibility of the Executive Government of the day. The Bail Act is therefore not intended to be used to solve problems of overcrowding in cells, and their unhealthy conditions.

26. This is not a compelling reason that warrants the exercise of my discretion to grant bail.

27. During the course of arguments learned counsel for State strongly submitted that the applicants must show what he termed as "exceptional circumstances" to convince the Court to exercise its discretion to grant bail. Nowhere in the statutory scheme of either Section 9 of the Bail Act or Constitution Section 42(6) is there a requirement to show exceptional circumstances. Showing exceptional circumstances maybe is requirement under Section 10 of the Bail Act, i.e. Bail after Conviction, but it is not a requirement I should consider now. I therefore reject any submissions that the applicant must show exceptional circumstances in support of his bail application.

28. The last argument advanced by the accused in support of his application or bail is that he has a very young family and therefore needs to be out on bail to look after his family. He argues that he has an infant child and his young wife is expecting their second child. It is argued that his release on bail will be for the welfare of his family.

29. The accused did not depose to any facts in his affidavit outlining the living conditions of his young family. Neither did he depose to the state of the health of his wife or his young child and the unborn child. He did not even annex a medical or a welfare Report of the health and living conditions of his family. In the absence of this documentary evidence, how does he expect me to believe him? There is nothing on file to show the general living conditions of his family.

30. The accused deposes that he lives in his father's house along Henao Drive, Gordons in NCD. If I were to release the accused on bail he would return to the Henao Drive and the wider Gordons community. So I ask myself, is releasing the accused on bail in the interest of the community? The interests of the community is encapsulated in the phrase in "the interests of justice" as stated in Section 42(6) of the Constitution and Section 3 of the Bail Act. Furthermore, interests of justice involves in my view those considerations under Section 9 of the Bail Act. In my opinion the notion of "the interests of justice" in Section 42(6) of the Constitution is concerned with the protection of the community, the law abiding citizens, from those who offend or are alleged to have offended such as the accused against them until such a time as guilt or innocence are fully and finally determined according to law.

31. Thus, when I do a balancing act between an interest of an individual accused seeking to go on bail and the community interests, I find that the "interests of justice" or the interests and protection of the community is more paramount and should prevail over the individual rights and interests of an accused person. This would suggest that the criminal laws of the country are to be enforced without exception and equally, and those who have or are alleged to have offended such as the accused has against society or community laws and rules should be made to realize that they have forfeited their right to live and move around freely in that community.

32. In the end result, I am satisfied that the factors under Section 9(1)(c)(i)(ii)(iii) and Section 9(1)(g) have been made out. The accused has however failed to discharge the onus of showing why his continued detention is not justified.

GUARANTORS

33. The accused nominated two persons, one an Airline pilot and the other a private contractor to be his guarantors. I find that these two persons are men of standing in the community and are not related in any way at all to the accused. They are therefore neutral persons, and I would readily approve their nominations.

34. But for reasons already given I would refuse bail.

35. The accused will be further remanded in custody until his matter goes on to trial and under Sections 6 and 13 of the Bail Act the applicant may make further application to this Court or the Supreme Court at any stage of the proceedings.

___________________________________
Furigi Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent