Lambu v State [2016] PGNC 88; N6318 (28 April 2016)

N6318

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR/APP No. 52 OF 2016

PONOK LAMBU

V

THE STATE

Respondent

Wabag: Auka, AJ

2016: 8^th & 28^th April

CRIMINAL LAW - Application for bail pending committal proceeding – Reasons of loss of employment – Family welfare – Relied on – consideration under s.9 of Bail Act present which warrant refuse of bail – In possession of firearm to commit – offence involved property of substantial amount – Dealing with stolen property likely -Grant of bail discretionary but refused

Counsel:

Mr. Robert Bellie, for the Applicant

Ms Sheila Luben, for the State

DECISION

28^th April, 2016
1. AUKA, AJ: The Applicant has been charged with the offence of Stealing of Property worth K65, 000. 00 the property of LYAMALE Catholic Mission pursuant to Section 372 of the Criminal Code and Unlawfully setting fire to a Cemetery of Late BELE KOPE, the property of Late BELE KOPE’s family pursuant to Section 436 (a) of the Criminal Code.

2. He has been in custody since his arrest on 10^th December, 2015.

3. The brief facts are that on 18^th October, 2015 around 2:00pm and 3:00pm at Kapontas village, Laiagam, Enga Province the applicant was with others armed with bush knives, factory made shotgun and homemade gun and went to the Lyamale Catholic Church building and removed all the roofing iron of the church valued at K65, 000. 00 and then went onto set fire to a Cemetery of Late BELE KOPE valued at K10, 000. 00. After committing the offences, the applicant travelled to Port Moresby and was in hiding until he was arrested by Police in Port Moresby and flown back to Wabag. Most of the offenders are yet to be arrested.

4. This Application is made pursuant to Sections 3 & 6 of the Bail Act. The Court understands from submissions that the applicant is still going through committal proceeding. He has not been committed to stand trial and he applied for bail so that he can be released and stay outside custody awaiting committal results.

5. Four broad reasons were given as basis for applying for bail;
1. That his detention at Wabag Police lock up for 3 weeks without being brought to Court Constitute unlawful detention.
2. He is Community School Teacher and well respected person in the community

3. He is a family man and is concerned about his family well being.

4. He has been unnecessarily been detained since the Complainant have not apprehended the culprits responsible for stealing the roofing irons and destroying the cemetery.

5. He relied on the following affidavits to Support his application:

1. His own Affidavit filed on 23^rd February, 2016 with Annexure A&B which deposed to the reasons why he is seeking bail.
2. The Affidavit of Jackson Jonna filed on 23^rd February, 2016 who has volunteered to be a guarantor.
3. The Affidavit of Meck Nere filed on 23^rd February, 2016 who has also volunteered to be guarantor.
4. The Affidavit of Robert Bellie filed on 8^th April, 2016 who deposed to the reasons why the applicant’s application at the District Court was not heard.

6. From the outset this Court considers that the first and fourth reasons are of no merit and are dismissed. It is the duty of the Police to deal with him and take him to court. It is also the duty of the Police to arrest his co-offenders and not the Complainant’s. He is kept in custody because, he has been reasonably being suspected of committing two offences.

7. The Constitution in Section 42 (1) (d) states that no person can be deprived of his Liberty except on reasonable suspicion of him having committed an offence. And as such his detention is Lawful.

8. Mr. Bellie of Counsel for the applicant submitted that the applicant is aged 28 years and married with two wives and has 2 children. He is from Yamale Village in Surunki, Laiagam district, Enga Province. Currently the applicant is a Community School Teacher at Lakui Primary School and is well respected person in his Community. The Applicant says it was his relatives who committed the offences. He has indicated to pay K500. 00 cash bail and is prepared to comply with any conditions imposed on him by the court. He has proposed two (2) guarantors who are willing to pay K250.00 each for bail sureties.

9. Ms. Luben for the State objected to the grant of bail on following reasons:
1. That the alleged actions of the applicant in committing the offences involved firearms and bush knives which are offensive weapons; s.9 (1) (c) (111) of the Bail Act. Also she submitted that the alleged offences involved property of substantial value that has not been recovered s. 9 (1) (a) Bail Act.
2. That the matter is still at Committal stage.

10. Ms. Luben further relied on the Affidavit of the Arresting Officer, Detective Senior Constable Elly Lati. In his Affidavit, he deposed of the likelihood of interference with The State witnesses. This Court rejected this reason on the basis of lack of evidence.

11. The right to bail is a Constitutional right. Apart from the offences of Wilful Murder and treason, it must be readily granted to those who apply for it. This clearly shows that bail is not an automatic right. It is subject to various considerations, the main ones being stated under Section 9 of the Bail Act. The Applicant must first and foremost satisfy the court that his continued detention is not justified. He does that by either showing that the considerations under s.9 of the Bail Act are not present or some other consideration warrants the grant of bail.

12. In the present case two (2) considerations under section 9 are present which would warrant a refusal of bail. The first relate to the applicant having or in his possession firearms and bush knives when the alleged offences were committed s. 9(1) (c) (111) of the Bail Act.

13. Secondly the alleged offences committed involved property of substantial value that has not been recovered. Section 9(1) (a) Bail Act. It is the Courts view that an alleged offender who is allowed bail is most likely to deal with such property.

14. Despite the presence of these two considerations which would invite a refusal of bail, the applicant can be granted bail at the discretion of the Court.

15. The Law on the grant of bail is well settled. In Re Fred Keating v. The State [1983] PNGLR 133 Kidu CJ (as he then was) and Andrew J held that;
‘If one of the Considerations in s.9 is present, it does not follow that bail must automatically be refused, there is always discretion in the bail authority to grant bail’

16. This is primarily based on the entitlement to bail pursuant to Section 42 (6) of the Constitution and Section 3 of the Bail Act.

17. In the present case the question is whether the grounds or reasons raised by the applicant are sufficient to constitute a circumstance that would attract the exercise of discretion to grant bail. To answer this question, the broad reasons, two of which I have found baseless needs careful assessment. These reasons have to be considered in line with the competing considerations under s. 9 which have been shown to be present.

18. First is that he is a Community School Teacher and well respected person in the Community. He deposed that he is a Community School Teacher at Lakui Primary School, Wabag District, Enga Province. He was teaching at Lakui Primary School at the material time when the alleged incidents occurred. He deposed that it was his relatives that committed the offences.

19. Second is that he is a family man and is concerned about his family well being. He deposed that he is the husband of two (2) wives and father of two (2) children.

20. At the outset bail can be granted if the reasons or grounds constitute a circumstance that is reasonable or even exceptional in the face of the considerations under s. 9. The reasons in my view do not constitute a circumstance that would attract bail at present.
Does the interest of justice require the grant of bail in the face of competing circumstance? My answer to that question is not for the time being.

21. Firstly there is no evidence before the Court showing that the committal proceedings have been completed. It would be in the best interest of justice that detention is justified.

22. Secondly the alleged property involved is substantial. None of it has been recovered yet. The possibility of dealing with the property is high if the applicant is released on bail. It is in the best interest of justice that detention is justified in the time being.

23. Applicant’s concern on his family’s well being is a relevant factor in this application. As a human being I do appreciate the causes of his concern. Also there is a legal duty imposed for example under s. 284 of the Criminal Code on a head of the family to provide necessaries of life for children. However, the Courts in PNG have time and time said that before anybody thinks about committing a crime, he or she must consider that his action may affect his family badly. I mention one case as an example. That is State v. Allan Eku [1992] PNGLR 53.

24. In the matter of an Application by Dr. Theo Yausase v. The State (2011) MP 12 of 2011 dated 18^th & 22^nd February, 2011 His Honour Kariko J said;
“Where an accused person is remanded in custody it is only natural that the family will suffer in the sense that it will miss the usual parental support (including emotional and financial)”.

25. The reason that his job as a teacher may be affected is not an exceptional circumstances. Loss of employment or business are other natural consequences of an accused person being remanded in custody. Dr. Theo Yasause v. The State (supra).

26. His Plea of Innocence, in that he says he was teaching at Lukui Primary School at the material time the offences were committed is not a matter for this Court to consider. The question of innocence or guilt is properly a matter for the substantive trial. It is not a matter for this application.

27. Bail should not be readily available to these types of reasons for the exercise of discretion to grant bail.

28. Given all these observations bail is refused for the time being.

Prosecutor Public: Lawyer for the State

Solicitor Public: Lawyer for the Offender