Enj v State [2014] PGNC 199; N5832 (14 August 2014)

N5832

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. (APP) NO 241 OF 2014

BETWEEN:

JACKSON ENJ
Applicant

AND:

STATE
Respondent

Mendi: Ipang, J
2014: 13 & 14 August

CRIMINAL LAW – Bail Application – bail after conviction and before sentence – applicant must show 'exceptional circumstances in order to be granted bail – whether applicant has shown exceptional circumstances.

BAIL ACT – Application for bail pursuant to section 10 – whether grounds relied on by the applicant such as, he has a trade store to operate, he has outstanding bank loan to service, and family to look after amount to exceptional circumstances.

Cases

John Jaminen v State [1983] PNGLR 122
Arthur Smedley v State[1978] PNGLR 452
Walter Enuma v State SC 538
Yaki v State [1990] PNGLR 513
Sam & Denden Tom v Superintendent of CIS [2004] PNGLR 43
Joey Charlie v State [2004] PNGLR 249
Rakatani Mataio v State [2004] PNGLR 124
State v Yabara (No.1) [1994] PNGLR 133
Chong Kong Cheng v State [1977] N169
Acting Public Prosecutor v Andrew Lalaiva & Angelo Ume SC 201
Logalio Piaro v Kamkumung[1986] PNGLR 283
Jacob Wana Kelekawa v State (2003) N2356

COUNSELS

Ms. Cecilia Koek, for the Applicant
Mr. T. Ai, for the Respondent

RULING ON BAIL APPLICATION

14 August, 2014

1. IPANG, J: This is a bail application made after conviction and before sentence. The applicant was convicted by the National Court on the charge of armed robbery contrary to section 386 (1) (2) (a) (b) of the Criminal Code Act, Chapter 262. Pending his sentence before Kassman, J the applicant files his application for bail pursuant to section 10 of the Bail Act.
   

Brief Facts

2. The brief facts surrounding the offence of armed robbery are these:
   
   1. It was alleged that on the 27th day of January 2009, at Kama village, Poroma, SHP, between 8.00pm-9.00pm, the said six (6) accused, Jacob Kanj, Jackson Enj, Simon Kau, Isaac Michael, Buka Ore, Michael Enj, and others, held up Mr. Inabiya Michael and three (3) others, with bush knives axes and sticks, stole k4, 862.00 in cash, and fled into darkness
      
   2. On the date, time and location mentioned above the victim, Mr. Inabiya Michael, HEO of Pimaga Rural Hospital, Lake Kutubu, SHP, his wife Mrs. Susan Michael, Nursing Officer, Homego Rabbie, security guard, and Mr. Ugiga Sawa, driver, all employed by Health Department and attached to Pimaga Rural Hospital. They left Mendi and proceeded back to Pimaga with a dead body. They (victims) were travelling with their hospital ambulance, Toyota 10 seater white in colour Reg. No. ZGC 621 and Mr. Ugiga Sawa was the driver, Mrs Susan Michael was sitting in the middle while her husband, Mr. Inabiya Michael was the offsider, and security guards, Mr. Homego Rabbie and Tupsy were at the back with the dead body. At about 8.00pm-9.00pm, the driver and others came and approached a PMV Dyna truck which was stopped on the road junction of Kunjulu village, between Moro and Mendi, and truck was surrounded by some men.
      
   3. The victims came and stopped on the road, about 10 – 15meters away from that PMV truck and to see what was happening there, and at that very moment, the said accused and others rushed to them and surrounded the Ambulance with bush knives, axes and sticks. And then the accused Simon Kau, and others told the driver that, "yurait man, mipela waitim yu istap," (yu are the right man, we are waiting for you) and same time pointed knives at him, grabbed the vehicle key from the ignition, and also pulled the driver out of the vehicle (ambulance) and same time, accused Simon Kau grabbed the driver's shirt, cut his string bag containing K250.00 in cash and took it away.
      
   4. The driver was dragged away into the darkness by the accused and others while some others about five (5) men rushed to the crew side and held up Mr. Inabiya Michael and his wife, forced both of them out of the vehicle and woman/victim was dragged into the bushes, and also the HEO, Mr. Michael Inabiya was dragged into different direction and stole his K4, 862.00 in cash with a bag. The victim/woman was kept in darkness by the accused and repeatedly raped her till next day.
      
   5. The victims were in the custody of the accused till day break and the victims were released so they (victims) came back to their vehicle/ambulance and confirmed that the dead body was left and other items were gone. And on the same day, 28th/01/09, they went to Pimaga Station and reported the matter to Police. At the same time the rape victim was taken to Pimaga rural Hospital for Medical examination.
      
3. The s. 10 of the Bail Act reads:
   

10. Bail after conviction and before, sentence

"where a court convicts a person but adjourns the proceeding before passing sentence, it may, in its discretion, grant the person bail."

4. The principles governing granting of bail after conviction and before sentence are well settled or have been established in this jurisdiction. See State v Yabara (No. 1) [1994] PNGLR 133, the Supreme Court re-affirmed Schbert v State [1978] PNGLR 394; Smedley v State [1978] PNGLR 452 & John Jaminen v State (No.1) [1982] PNGLR 122. This has been noted in Tom v Superintendent of Corrective Institute [2004] PNGLR 43 at p.47 by Lay, J.
   
5. The applicant must show exceptional circumstances before bail can be granted. See Mogish, J in Rakatani Mataio v State [2004] PNGLR 124 at p. 125 as to what amount to exceptional circumstances. Basically, the applicant has the onus of demonstrating the factors which he considers constituting the exceptional circumstances to the satisfaction of the court.
   
6. Lay, J. (as he then was) stated in Tom -v- Superintendent of Corrective Institute (supra) that 'after conviction the court must be vigilant and cautious in its consideration of the finality of the verdict: Chong Kong Cheng -v- State [1977] N169; (b) easy access to bail may encourage numerous unmeritorious appeals: Yaki -v- State [1990] PNGLR; (c) persons admitted to bail easily persuade themselves that they will never have to be returned to custody: Acting Public Prosecutor -v- Andrew Lalaiva & Angelo Ume SC 201; the appellate court may, on grounds of humanity, be in something of a dilemma should the appeal fail and the question arise as to his return to the custody (Logalio Piaro -v- Kamkumung [1986] PNGLR 283) where the application is based on personal circumstances, such as the medical condition of the prisoners the applicant must make out an extra – ordinary case: See Jacob Wana Kelekawi -v- State (2003) N2356.
   
7. In support of his bail application, the applicant filed his affidavit dated 11th August 2014. He relied on paragraphs 7 & 8 of his affidavit. He adduced the following grounds as exceptional circumstances for seeking bail. The grounds are:
   
   • He has the sole responsibility to look after his six children
     
   • He operates small businesses like a trade store, piggery and poultry projects
     
   • He has outstanding bank loan to repay of K6000
     
8. He submits that this court grants him bail pending his sentence so that he can sort out his family and make re-arrangement for re payment of his loan.
   
9. The power to grant bail as we know is discretionary, there is no right of bail after a conviction. Prior to conviction, the presumption of innocence under section 42 (b) of the Constitution still exist whilst after conviction the presumption is that guilt has been established unless the contrary is shown.
   
10. The grounds relied on by the applicant for seeking bail after conviction and before sentence do not amount to exceptional circumstances. The applicant has not made out an extra ordinary case. Refer Jacob Wama Kelekawi -v- State (supra).The circumstances presented do not establish a case of "exceptional circumstances". The application for bail is therefore refused.

______________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent