Undah v State [2016] PGNC 354; N6574 (14 October 2016)

N6574

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. APP No. 425 OF 2016

In the matter of an application for bail pursuant to section 4 & 6 of the Bail Act, chapter 340 and section 42 (6) of the Constitution

BETWEEN

CAYLEB PANDEA UNDAH

Applicant

AND

THE STATE

Respondent

Mendi: Ipang, J

2016: 06^th & 14^th October

CRIMINAL LAW –Bail Application– Grounds or reasons advanced for bail – concern for the operation of his business – a construction company – Welfare of his family – Family is facing hardships with his continued detention.

CRIMINAL LAW – Bail Application – objection to bail – Fresh matter before Committal Court as information laid before Court on 29 August, 2016 – Record of Interview not conducted – Applicant resides out of Mendi and SHP.

Cases cited:
Benson Titus-v-The State [2001] PGNC 150; N2043 (26 January, 2001)
Dala-v-The State [2011] PGNC75;N4341 (2 August, 2011)
Fred Keating-v-The State [1993] PNGLR 133
Mathew Yawa-v-State MP. No. 492 of 2008
Philip Maru&AruaOa-v-The State [2001] N2045 (26 January, 2001)
Steve Lester-v-The State [2001] [2001] PGNC 148; N2044 (22 January, 2001)

Counsel:
Ms. C. Koek, for the Applicant
Ms. S. Luben, for the Respondent

RULING ON BAIL APPLICATION

14^th October, 2016

1. IPANG J: The applicant applies for bail pursuant to section 4 and 6 of the Bail Act, chapter 340, and also pursuant to section 42 (6) of the Constitution. I heard this application and reserved my ruling to today Friday, 14^th October 2016.
   
2. The applicant has been arrested and charged with two (2) charges before the District Court. The two (2) charges are as follows;
   

Count Two (2)

Between the 18^th April, 2016 to 16^th July, 2016 the applicant being the Managing Director of Complete Projects Ltd C/o – P O Box 2037, Lae, Morobe Province, dishonestly applied to his own use the property namely three hundred & sixty thousand kina (K360, 000.00) out of the total of four hundred thousand kina (K400, 000.00) paid to him by Kagua Secondary School Board as the Contractor to build four L40 staff houses on cheque number 396 through Department of Finance Provincial Treasury Office Southern Highlands Province on Kagua Erave District Treasury Operating Account 1000731772.

Contrary to section 383(A) (1) (a) PNG Criminal Code Act, chapter 262.

Count One (1)

On the 30^th of March, 2015 the applicant being the Managing Director of Complete Projects Ltd C/o – P O Box 2037 Lae, Morobe Province, by false pretence and with intent to defraud, produce and signed Contract Agreement number KSS01-15 and Minor Works Contract to build four (4) L40 staff houses within eight (8) weeks obtained from Kita Yambi, Principal on behalf of Kagua Secondary School Cheque number 396 for K400, 000.00 through Department of Finance Provincial Treasury Southern Highlands Province on Kagua/Erave District Treasury Operating Account 1000731772 did not complete the four (4) L40 staff houses and with intent thereby to defraud Kita Yambi and the school.
Contrary to section 404 (1) (b) of the Criminal Code Act, chapter 262.

Brief Facts

3. The applicant now appearing before this Honourable District Court is aged 39 years old a mixed parentage of Mele village, Pangia and Puri village, Kagua, Southern Highlands Province. He is the Managing Director of Complete Projects Limited at the address; P O Box 2037, Lae, Morobe Province. As alleged the applicant signed an ‘Agreement for General Infrastructure’ under the District Development Authority of Kagua/Erava on Contract number KSSO1-15 and Minor Works Contract as the Contractor, Complete Projects Limited at Lae address for construction of four (4) L40 type staff houses on the 30^th March 2015. The accused under the Contract Agreement agreed to build the staff houses within a period of eight (8) weeks. After the cheque payment was released to him he had four (4) staff house foundations set up according to the contract agreement later valued at K40, 000.00 by Project Clerk of Simply Blue Collar Limited, P O Box 430, Waigani, NCD. However, the balance of K360, 000.00 was allegedly to have been misappropriated by him on his own accord. However, up to now the staff houses have never been attended to or completed. Though, he was communicated by the school Board of Governing Council all ended in unfounded responses. The matter was reported to Police on the 26^th August 2015 for investigation and appropriate charges laid against the applicant. The applicant was located in Port Moresby by NCD Police, picked up and escorted to and handed to Mendi Police on the Friday 25/08/2016 to be dealt with. He was formally arrested, cautioned, informed of his Constitutional Rights under section 42 (2) of the Constitution and charged with a count of obtaining credit by false pretence under section 404 (1) (b) and Misappropriation of funds under section 383 (1) (a) PNG Criminal Code, chapter 262. He said nothing about the charges when asked.
   

The Application

4. The applicant filed his bail application on the 30^th September, 2016. His affidavit in support of his application was also filed on the 30^th September, 2016. His two (2) guarantors also filed their affidavits on the 30^th September, 2016. The two (2) guarantors are Pastor Paul Lape and Bobby Ongi.
   
5. In his affidavit in support, the applicant raised the following grounds for the grant of his bail. The following are these grounds.
   
   • (i) Business Interest

The applicant is the Managing Director of Complete Projects Limited. The Company is based in Lae and has branches in Port Moresby and Lae. The Company employs 31 people. In paragraph 4 of his affidavit in support, the applicant deposed that since his detention in custody, there has been drastic impact on the operation of the Company. All his employees are facing financial hardships.

(ii) Family Welfare

` In paragraph 9 of his affidavit, the applicant deposed that his wife and his child has suffered hardships since his detention. He says his wife is unemployed and resides with his child in Port Moresby.

(iii) Bail as a Constitutional Right

The applicant deposed that his right to bail is a constitutional right (s.42 (6)) of the Constitution) and as such should be readily available unless the interest of justice otherwise requires.

6. Apart from the above grounds advanced by the applicant, the applicant in his affidavit deposed that;
   • He is a respected law abiding citizen and a committed member of the community;
     
     • If bail is granted he will reside in Mendi with Pastor Paul Lape who is one of his Bail Guarantors;
       
     • He promised to comply with all his bail conditions set by this Court.
       
7. The two (2) Guarantors Pastor Paul Lape and Bobby Ongi deposed in each of their respective affidavits filed to ensure that the applicant complies with his bail conditions in the event if he is granted bail by this Court.
   

Grounds of objections raised by the State

8. The State through Counsel Ms. S. Luben raised objection for the bail to be granted to the applicant. The State argued that the matter is a fresh matter in Mendi Committal Court as the information in relation to the two (2) charges was recently filed before the District Court on the 29^th of August, 2016. As such the investigation is still continuing and the Record of Interview (ROI) has not been completed as yet. The State also submitted that the applicant does not reside in Mendi but has his business located in Lae and his family is based in Port Moresby. The argument raised by the State implies that in the event bail is granted to the applicant, he will be out of Mendi thus he will have problem attending to his committal case, the Record of Interview (ROI) and complying with his bail reporting conditions.
   
9. Ms. C. Koek of counsel for the applicant counter argued that the reasons advanced by the State in objecting to her client’s bail are not the requirements under section 9 (1) of the Bail Act, chapter 340. In the case of Steve Lester-v-The State [2001] PGNC 148; N2044 (22 January, 2001) Kandakasi, J made this statement;
   

“As stated by Akuram, J in The Matter of an Application for Bail by Sergeant Pokou Steven &Ors-v-The State (supra) and Wilson, J, in The Sate-v-Beko Job Pau(supra) the list of circumstances under s.9 of the Bail Act do not necessarily limit the factors a bail authority can take into account to decide whether or not to grant bail. Other factors may be taken in to account in order to determine what does “the interest of justice otherwise requires”. In other words, bail authorities should not proceed to grant bails as a matter of course. Instead as already stated above, it should carefully consider the interest of the applicant to be left out on bail and the interest of the society to have the offenders dealt with accordingly to law once brought before the Courts in a manner that is prompt, effective and less expensive. This may involve the bail authority taking into account all of the factors under s.9 of the Bail Act and such other factors the bail authority considers appropriate before deciding whether or not to grant bail.”

10. The Court in Fred Keating-v-The State [1983] PNGLR 133 was specific when it stated; “In cases of wilful murder, only those considerations set out in s.9 (1) apply, and no others, because the “interest of justice in s.3 of this Act and because s.42 (6) of the Constitution does not apply to wilful murder and treason cases.”
    

The Relevant Law

11. I considered cases like Benson Titus-v- the State [2001] PGNC 150; N2043 (26 January 2001), Steve Lester-v-The State [2001] PGNC 148; N2044 (22 January, 2001); Philip Maru & AruaOa-v-The State[2001] N2045 (26 January, 2011; Mogish, J in Mathew Yawa-v-State MP No. 492 of 2008 and Dala-v-The State [2011] PGNC 75; N4341, the law on bail is clear and can be summarised as;
    

1. A person arrested and charged with an offence is entitled under s.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”;

2. The Bail Act (Chapter 340) by s.9 sets out the circumstances which bail may be refused;

3. The existence of one or more of the circumstances under s.9 of the Bail Act may form the basis to refuse bail but that is not automatic. There is discretion in a bail authority to grant bail if an applicant for bail is able to show by appropriate evidence that his “continued detention in custody is not justified”;

4. 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 s.9 (2) of the Bail Act the applications of the technical rules of evidence are excluded;

5. The list of circumstances under s.9 of the Bail Act is not exhaustive and other factors such as the following may be taken into account before deciding whether or not to grant bail:

(a) The applicant being a habitual criminal;

(b) Whether the applicant is a trustworthy person and will meet any bail terms that may be imposed;

(c) The number of bench warrants outstanding for bail jumpers for the kind of offence the applicant is held in custody for;

(d) The costs and expenses the society may be put through in trying to bring the applicant to justice if he breaches his bail terms which may mean delays in a speedy trial which may have the risk of the State loosing vital evidence supporting the charge against the applicant;

(e) The expenses and the trouble the Society through the Police Force, has been put through to secure the applicant’s arrest and incarceration;

(f) Whether the proposed Guarantors are serious in their proposal having regard to the amount of money they are able to pay in sureties;

(g) Whether the amount of cash bail proposed has any relative correspondence to the offence with which he has been charged; and

(h) Whether the applicant would have already served his penalty without a trial by reference to the offence with which he has been charged and the possible date for his trial.

Application of the relevant principles

12. The applicant’s ground for bail is based on the operation of his business being affected due to his continued detention. The applicant also raises the concern for the welfare of his family. In Benson Titus case (supra), Maru and Oa case (supra), the Courts have formed the view that business is affected or family welfare is affected are factors which should not form the basis to grant bail. I quote this view expressed by Kandakasi, J in the Benson Titus case (supra);
    

“...the grounds advances are factors that should have been considered well before the offence was committed, if indeed, the applicant was involved in the commission of the offence. I hold the view that such factors should not form the basis to grant bail. This is because the kind of difficulties and hardships advanced are the natural consequences of committing a crime at the first place. In holding that view, I am also mindful of the fact that an accused person remains innocent until proven guilty according to law. At the same time I am mindful of the fact that a legitimate process also provided for by the Constitution as been set in motion. There must therefore, be a presumption that the applicant has been charged and detained in some proper basis. I believe that is why the Bail Act has been enacted with the provisions of s.9 in it.”

13. Given these reasons and considering the interest of justice, I will refuse the applicant’s application for bail.

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