Waru v State [2017] PGNC 265; N6936 (6 October 2017)

N6936

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 694 OF 2017

HERMAN WARU
Applicant

V

THE STATE
Respondent

Kimbe: Miviri AJ
2017: 6^th October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application – Bail Act S6–S42 (6) Constitution ––Armed Robbery–bail of right—State objections—change of circumstances-new guarantor-S 9 (1) (a) (c) (i) (ii) (iii) Bail Act satisfied—Bail Granted.

Cases:
Keating v The State [1983] PNGLR 133
Re Thomas Markus [1999] N1931

Counsel:

A. Bray, for the State
D. Kolowe, for the Defendant

RULING ON BAIL APPLICATION

09^th October, 2017

1. MIVIRI AJ: This is the ruling on an application for Bail pursuant to Section 6 Bail Act and Section 42 (6) of the Constitution by the applicant charged with armed robbery. The former is the general operative section which gives bail as of right and together with the Constitutional basis really are the bases upon which the application is founded.
   
2. This application was made before this court on the 15^th May 2017 Herman Waru v The State CR (AP) No. 58 OF 2017 where bail was refused because the guarantors were not satisfactory as one of them was the natural father of the applicant and not an independent person. This application is made on the basis that circumstances have changed since in that one of the guarantors is now an independent person not related to the applicant. The authority is by section 6 and 7 of the Bail Act for the application to be made as they are now doing: Re Thomas Markus [1999] N1931.
   

Short facts

3. On 30^th August 2016 at Silovuti Camp A road, Herman Waru of Imelo, Kandrian accompanied 6 others armed with 3 homemade guns, stapler revolver guns, 3 bush knives, used actual violence upon one Ronald Dau and two others and stole from them a vovi touch screen mobile valued at 1700 ringgit equivalent to K1500, 2 packets of smoke valued at K 20.00, a alcatel touch screen mobile telephone valued at K 135.00, 2 working boots valued at K98.00 respectively, a dark spectacle valued at K5.00 and K11.00 in cash altogether valued at K1904 all the property of Ronald Dau and two others.
   
4. Contending that circumstances have changed from the initial application the applicant has filed the following evidence as basis upon which he contends for the discretion of the court to be invoked in his favour.
   

Evidence in support of application

5. Applicant relies on his own affidavit dated the 27^th July 2017 and filed the 19^th August 2017 wherein he deposes that he is 22 years old from Imelo village Kandrian District that he was arrested on the 21^st September 2016 with armed robbery particulars set out above. He further says that he is a law abiding citizen and has never come into conflict with the law. And has been in custody since the 21^st September, 2016. Is married with 3 children who are attending school and also he has a poultry to take care. He pledges to pay a minimum of K500 or any amount that the court imposes as surety for bail. And nominates as guarantors to his bail firstly John Kiawali and Francis Yani that should he be allowed out on bail he will be resident at section 21 Bush Camp Kimbe.
   
6. Both guarantors have pledged and sworn affidavits and filed, Francis Yani dated the 27^th July 2017 filed the 19^th August 2017 wherein he deposes that he is a village court magistrate of Kimbe urban West New Britain and knows the applicant very well since childhood that he is of good character and with no prior record of wrong doing in the community. That he is willing to be guarantor for the applicant and knows the duties and the responsibilities of becoming one. He pledges the sum of K500 as surety for the bail should it be granted. He deposes that the applicant will be resident at section 21 Bush Camp Kimbe with his family.
   
7. The second guarantor is Pastor John Kiawali affidavit dated the 27^th July 2017 filed the 19^th August 2017. He is a pastor of the AOG church Kimbe. And knows the applicant since his childhood as a person of good character with no record of wrong doing in the community and that he knows about the charge of armed robbery laid against the applicant. He is willing to be a guarantor and knows the duties of being a guarantor and pledges the sum of K500 as surety as guarantor. And in the event that bail is granted the applicant will reside with his family at section 21 Bush Camp Kimbe.
   

Law

8. Section 9 of the Bail Act provides that bail shall not be refused unless the bailing authority is satisfied on reasonable grounds as to one or more of considerations enumerated in s. 9(1): Keating v The State [1983] PNGLR 133.
   
9. I am not bound to apply the technical rules of evidence but can act on what material is before me. In so doing I take account of the fact on annexure “A & B” attached to the affidavit of the applicant stating, that the applicant was one of the robbers who came out on to the road and stopped the employees of the Bismarck logging company who were on their way to fix one of their vehicles that had broken down when stopped thinking they were genuine persons who just wanted a lift the employees stopped only to be held up and robbed off all their properties itemized out above.
   
10. I am satisfied that the requirements of section 9 (1) (a) of the Bail Act is reasonably met by the applicant to guarantee his appearance or return to court from bail for the reasons that I have set out above.
    

Analysis of evidence and Law

11. I am reasonably satisfied that section 9 (1) (a) (c) (i) (ii) (iii) of the Bail Act has been made out for the exercise of discretion in favour of the applicant. The material he has placed in support has satisfied me that bail should be granted because the guarantors themselves have fixed locations specific where they themselves including the applicant are located and will be found. Armed robbery is one of the most serious offences known to the law and is not a light matter as in shop lifting of a packet of biscuit. I am satisfied that the applicant has shown by proper material supporting to invoke the discretion of the court in his favour.
    
12. I have viewed the affidavits of both guarantors proposed and adjudge that there has been a change in the circumstance from the initial application made. And this I do so based upon the decision of this court 15^th May 2017 Herman Waru v The State CR (AP) No. 58 OF 2017 with particular reference to the proposed guarantors there and now. That the sworn and filed affidavits of the proposed guarantors now Francis Yani of Kimbe village court magistrate of Kimbe urban West New Britain and Pastor John Kiawali of pastor of the AOG church Kimbe show change in circumstances in that both persons are of standing and repute in the community and will ensure by that fact to ensure applicant is observant of his obligations of bail if granted.
    
13. The State has not objected to the application in view of the court’s decision on bail last and also does not object to the proposed guarantors now.
    
14. I am satisfied that the change in circumstance has been shown with the insertion of the proposed new guarantor which will ensure the observance of bail conditions that the court imposes upon the applicant.
    
15. I am satisfied that the requirement of section 9 of the Bail Act has been satisfied with the proposed guarantors. And I approve the proposed guarantors who is Francis Yani, a village court magistrate of Kimbe Urban LLG and Pastor John Kiawali of the AOG church Kimbe as guarantors pledging the sum of K500 each for the bail of the applicant Herman Waru.
    
16. Consequently I grant the application made for bail and order :-
    
    • (i) The applicant is granted bail on the following conditions that he shall pay the cash sum of K800 forthwith and upon production of receipt to be released from custody.
      
    • (ii) Both Francis Yani of Kimbe village court and Pastor John Kiawali of the AOG church Kimbe are approved as guarantors for the applicant with individual pledges of K 500 to be paid should the applicant breach the bail conditions.
      
    • (iii) The applicant shall report to the Kimbe National Court Registry every government payday Friday between the hours of 8.00am and 4.00pm.
      
    • (iv) The applicants shall reside at section 21 Bush Camp with his family at all times during the course of bail.
      
    • (v) The applicants shall not leave Kimbe or his residence at Section 21 Bush Camp with his family without the leave of the Kimbe National Court.
      
    • (vi) The applicant shall attend every call over of the Kimbe National Court every first Monday of every month during the course of his bail.
      
    • (vii) The applicant shall be of Good behaviour at all times during the course of bail.
      
    • (viii) The applicant shall not interfere with any state witnesses in the matter.
      

Orders Accordingly,
_____________________________________________________________

Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Applicant