Kasieng v State [2014] PGNC 13; N5541 (26 February 2014)

N5541

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

IN THE MATTER OF BAIL APPLICATION ACT CH. 340
CRAP. 26 OF 2014; CRAP. 27 OF 2014; CRAP. 28 OF 2014; CRAP. 29 OF 2014; CRAP. 30 OF 2014; CRAP. 31 OF 2014; CRAP. 32 OF 2014.

SAKAWAR KASIENG & 6 OTHERS

V

THE STATE

Vanimo: Geita AJ
2014: 24, 26 February

CRIMINAL LAW - Practice and procedure - Bail application – Only National Court and Supreme Court may grant bail - Bail Act Ch.340, ss. 3, 4, 9 - Constitution s. 42(6)

CRIMINAL LAW - An applicant for bail who is charged with rape, arson and serious assault is not entitled to bail unless it is shown that there are either special or certain grounds - Bail not to be refused except on certain grounds, Section 9(1) Bail Act Ch. 340.

CRIMINAL LAW – Special and exceptional circumstances - The likelihood of harm done to law enforcing agency officers including policemen and women and lawyers finding themselves on the wrong side of the law remains real – Becoming targets for remand and convicted inmates in retaliation - Special circumstances shown – Bail granted with conditions.

Cases Cited.

Philip Maru & Ors v The State (2001) N 2045;
Mathew Yanor MP 20;
State v Beko Job Paul [1986] PNGLR 97.

Counsel.
William Tekwie, for the applicants.
Augustine Bray, for the respondent.

26 February, 2014

APPLICATION FOR BAIL

1. GEITA A J: Sakawar Kasieng and 6 co-accused were charged with four (4) criminal charges resulting from the raid conducted at Kawanumbo village, Wewak West Coast on 7th December 2013. They were all charged with rape, wilful damage and unlawful wounding and applied for bail pursuant to s. 4, 6 and s. 9 of the Bail Act Ch.340 and Section 42 (6) of the Constitution.

2. For purposes of convenience the 7 applications were grouped together as the criminal charges all arouse out of the same incident. Each application was however moved separately by Mr. Tekwie and responded too by Mr. Bray. This reasons for decision is therefore applicable to all applicants each and severally.

3. Mr Tekwie appeared for all the applicants and submitted as follows:

a) Six of the applicants are all policeman working in Wewak with lengths of service ranging between 2 years up to 36 years accept one who is a security guard with a private security firm also in Wewak;

b) Applicant Sakawar gave his concern for his family (11 children) as one of his reasons for bail.

c) Five of the applicants are married with families except two who are single;

d) The crimes were committed during the cause of carrying out their duties: the execution of Wewak National Court Bench Warrant 19 November 2012. The arrest and apprehension of a convicted prisoner sentenced to 40 years by the Wewak National Court.

e) The thrust of their application is based on their personal safety and security concerns if held either at Wewak Police Cells or at Corrective Service Buimo, where they fear being remanded with common criminals, most of whom they have interacted with and or arrested during the course of their police duties.

f) They fear that there is a real likelihood of their personal safety being jeopardised if held in remanded for a longer period;

g) The applicants were arrested on 10 and 12th February 2014, and have been in custody since then;

h) All applicants are able to deposit Five Hundred Kina (K500) in cash if bail is granted. They were all able to obtain two guarantors each who are willing to pledge K250 each and severally for their release on bail.

4. Mr. Augustine Bray who appeared for the respondent opposed the application on the grounds that:

a) The alleged act or acts constituting the offence in respect of which the appellants were in custody, namely rape, unlawful wounding and arson were serious in nature and the likelihood of their interference with witnesses if granted bail remain real and high; s. 9(1)(c)(i) & (1) (f) of the Bail Act Ch.340;

b) Furthermore there is existence of threat of violence by use of firearms.

5. Mr. Bray submitted affidavits from two senior Police Officers in charge of investigations resulting in the arrest and detention of the 7 accused. They include Detective Senior Constable Ron Poki and Detective Superintendent Philip Rambaliki. Both officers deposed the real likelihood of witness interference, intimidation and threats of harm on them as investigators and those policemen they associated with during investigations.

6. Mr Bray argued that all grounds relied upon to make bail application were not valid grounds and should be dismissed. Family hardships advanced in support were the applicants own doing and should not find leniency in grant of bail as they pose no real exceptional circumstances. (Philip Maru & Ors v The State (2001) N2045 Kandakasi J; Mathew Yanor MP 20; State v Beko Job Paul [1986] PNGLR 96.) Seriousness of offences can cause court to refuse bail.

7. He further submitted that the applicants cause for harm done to them under Correctional Service custody at Buimo is unfounded as they all can easily be kept in a separate holding cell.

8. My reading of Section 3 and 4 of the Bail Act and Section 42 (6) of the Constitution provides that a person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) are entitled to bail at all times from arrest or detention and to acquittal or conviction unless the interests of justice otherwise require. And only National and Supreme Court may grant bail in certain cases. Interest of justice for the time being at least in this instance would be to see that the applicants are speedily investigated, prosecuted and properly dealt with by a court of competent jurisdiction with the least interference and intimidation.

9. All seven (7) applicants have been charged with rape, serious assault, which are some of the offences specified in Section 9 (1) (c) (i) (ii) of the Bail Act. It follows that they are not entitled to bail unless it is shown that there are either special or exceptional circumstances. I am of the view that the matters put to me by Mr Tekwie on behalf of the applicants, taken either separately or cumulatively, does show some special or certain grounds. I am here referring to the often perceived but common occurrence and reported instances of police officers, correctional Service officers and generally those men and women, including lawyers in the law enforcement agencies who find themselves on the wrong side of the law becoming targets of remand or convicted prisoners. There is nothing substantive before me on threat of flight; threat of harm and interference to prevent me from exercising my discretion in the applicants favour. I am also satisfied on the information before me in the nature of grounds set out in s 9(1) of the Bail Act Ch.340 which would operate against the applicants. Section 9(1) provides as follows: Bail not to be refused except on certain grounds.

10. Bail is therefore granted to all applicants with reporting conditions. Cash bails of K1000 each and severally with no cash surety of K250 on their guarantors each and severally is posted. The conditions include:

(a) The each and severally remain in Wewak and must not leave the jurisdiction without leave of court;

(b) They must not interfere with witnesses;

(c) They must each and severally report to Wewak National Court Registry every two weeks between the hours of 9am and 3pm;

(d) All other conditions to be observed.

Bail granted.
_________________________________________________

Public Prosecutor: Lawyers for the State.
M.S Wagambie Lawyers: Lawyers for the Accused.