Kum v State [2017] PGNC 296; N7002 (10 October 2017)

N7002

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 768 OF 2017

IN THE MATTER OF AN APPLICATION FOR BAIL PURSUANT TO SECTION 6 OF THE BAIL ACT CHAPTER NO: 340

BETWEEN:
ADRIAN KUM
Applicant

AND
THE STATE
Respondent

Wewak: Kirriwom, J
2017: 10^th October

PRACTICE AND PROCEDURE – Application for bail – Bail after refusal by Magistrate – Summary proceeding – Bail Act, section 4 & 9(1)(c)(iii) – Summary Offences Act, section 47(1) – Firearms Act 1978, section 59(2)

Case Cited:
Re Fred Keating [1983] PNGLR 133

Counsel:

W. Mininga, for the Accused/ Applicant
P. Tusais, for the State/Respondent

RULING

10^th October, 2017

1. KIRRIWOM J: This is an application for bail by Adrian Kum (the Applicant) pursuant to section 4 and section 6 of the Bail Act. By Information dated 4^th October 2017 issued under the District Courts Act the applicant was charged with two summary offences, namely, (1) without lawful excuse discharged firearm over land without consent of the owner of the land contrary to section 59(2) of Firearm Act 1978 and (2) without reasonable excuse destroyed property to wit car battery, market house, flower plants and house posts of another vis a vis Ronald Hafa contrary to section 47(1) of the Summary Offences Act Ch 264. Upon being charged the applicant was taken into police custody on 3^rd October 2017 and appeared in the District Court on Monday 4^th October 2017 and entered a not guilty plea on both charges.

2. The District Court then adjourned the case to 18^th October 2017 and despite request for bail, refused to grant bail on the basis that as one of the charges involved allegation of use of firearm, the learned magistrate found himself devoid of power and authority to consider bail and remanded the applicant in custody but directing that he was at liberty to seek bail before the National Court. The learned magistrate's reasons for refusal are captured in his short passage:

Holden : Wewak

Dated this : 04^th OCTOBER, 2017

Before : MR FINGU

Charge : UNLAWFUL DISCHARGED FIREARM

Section : 59 (2) FIREARM ACT

Prosecutor : SGT; HUAIEMBANDI

COURT RULING ON BAIL:

1. Defence Court does not have necessary evidence

2. The Court has no Jurisdiction under Section 4(1)(b) of the Bail Act as a Fire Arm was also used in the Commission of the allege offences
3. He is at liberty to apply for Bail before the National Court.
4. Matter adjourn to 18^th October 2017 at 9:30am for mention
5. Remand Warrant is issued.
   

MR FRANCIS FINGU (Original Signed)

Magistrate

3. The provision in the Bail Act, section 4(1) relied on by the learned Magistrate while refusing bail, reads:

"4. Only National or Supreme Court may grant bail in certain cases.

(1) A person—

(a) charged with wilful murder, murder or an offence punishable by death; or

(b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or break and enter a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence,

shall not be granted bail except by the National Court or the Supreme Court."

4. I will discuss the correctness or otherwise of the learned magistrate's decision and the order made shortly in the judgment but what is glaringly obvious by cursory glance of this provision of the Act is that the jurisdiction specifically given to the National Court or the Supreme Court only to consider and determine bail relates to specific offences only therein named or specified and most if not all of them are indictable offences, such as wilful murder, murder, rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal or break and enter of a building or dwelling house in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence. When one dissects the literal meaning of section 4(1)(b) Bail Act, obviously the offence charged under section 59(2) Firearms Act is not one of those alleged offences and furthermore, it is not an indictable offence. It is therefore arguable that section 4 has very restricted application in that it only covers those specific offences therein described in the section and it only applies to indictable offences.

5. In this respect the learned magistrate may have erred or erred in refusing bail or denying himself authority and jurisdiction to consider bail because the charge under section 59(2) FA and it being a summary offence, the case was well and truly within his jurisdiction to determine bail.

6. Be that as it may, the applicant is already before this Court invoking the inherent jurisdiction of the National Court as a superior court of record to consider his bail and pursuant to the mandate given to it under the Constitution, this Court will review the decision of the learned magistrate and determine the applicant's application for bail as pursued under section 6 of the Bail Act. Section 6 provides:

"6. Application for bail may be made at any time.

(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.

(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.

(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section."

7. This section is an all encompassing provision that applies generally to all offences whether summary or indictable and whichever Court the application is pursued. Reference to the word "Court" in the Act means "any court, other than a Village Court, and includes a Judge or Magistrate of any court, other than of a Village Court". In other words, a magistrate in the District Court, but not a Village Court, has power to grant or refuse bail just like a judge of the National Court or the Supreme Court. The only Court that has no power or jurisdiction to hear or determine bail is the Village Court and no Village Court Magistrate has jurisdiction over bail consideration.

8. Since the matter is now before me, and there is keen interest shown by the informant and Police in general about the case and given the strong objection to bail supported by voluminous materials in the form of affidavits with attachments or annexures which I will advert to shortly filed by the police in opposing bail, I will examine the materials thoroughly and give the case its due consideration without overlooking the seriousness of the charges laid, albeit summary in nature.

9. Police do not normally object to bail in summary matters bearing in mind that right to bail in all cases except for wilful murder and treason is guaranteed by the Constitution, section 42(6). But this is an exceptional case that Police have good reason to oppose bail of the applicant, and these reasons are captured in two affidavits deposed to by the Police Informant and arresting officer First Constable Imisar Piria of Wewak Police Station sworn 10^th October 2017 and another from Sergeant John Huaiembandi of Prosecution Division Wewak Police Station sworn 11^th October, 2017. I shall refer to the relevant passages in their respective affidavits that form the basis for their strong objection to the applicant being released on bail in the judgment.

10. The applicant also deposed to an affidavit in support of his application for bail sworn 7^th October and filed 9^th October 2017 which I will come to or discuss briefly shortly together with three other affidavits deposed to by his proposed guarantors. On my prompting the applicant also swore a responding or supplementary affidavit on 11^th October, 2017 in response to the matters raised in the affidavit of First Constable Imisar Piria alluded to earlier. I am also advised and have noted that the responding affidavit also adverts to those matters deposed to in the affidavit of Sergeant John Huaiembandi of 11^th October, 2017. I will discuss all these in their appropriate context as and when they arise for consideration.

11. But first the brief factual background of the case before the District Court according to the Police Information and the Summary of Facts on the reverse sides of the two separate Information giving rise to the two charges raise the following allegations:

(1) Section 47(1) Summary Offences Act

On Sunday 1st October, 2017 about 10pm the defendant Adrian Kum was at Yarapi village, Wewak, East Sepik Province. While in the company of a group of men went to the house belonging to the complainant Ronald Hafa. The Defendant led the group of men to cut down flowers, destroyed a car battery under the complainant's house and one of the men cut the post of the complainant's house on instruction from the Defendant.

The complainant's properties were destroyed by way of retaliation to an earlier incident in which one of the Defendant's relative was injured in the eye with a catapult by an unknown person.

(2) Section 59(2) Firearms Act 1978

On Sunday 1^st October, 2017 about 10pm the defendant Adrian Kum was at Yarapi village, Wewak, East Sepik Province. He went armed with a shotgun in the company of a group of persons to Peter Hafa's house, the complainant in this case. He went looking for a person who shot his brother on his eye with a catapult. He stood in front of the complainant's house and fired a shot with his gun and the pellets hitting the roof of the house. Defendant was very angry at the time. He was not invited to enter and while there he discharged a firearm. He then unloaded his gun letting the empty 12 gauge empty cartridge shell to drop to the ground and fled to the neighbour’s house.

12. The penalties for the two offences under their respective legislations are that under section 47(2) SOA, upon conviction, a person can be ordered to pay a fine not exceeding K400 or imprisonment not exceeding two years. And for the offence under section 59(2) FA, upon conviction, the only penalty provided is a fine not exceeding K1000.00.

13. The applicant is proposing K1000 as cash surety for bail, one of his guarantors pledges K1000 and another pledges K500. The other guarantor is the applicant's wife. I explained to the applicant's counsel that I do not accept family members as guarantors for bail because that is not the purpose of section 19 of the Bail Act. Guarantors must be persons totally independent from the applicant, persons holding some kind of authority who have power over the applicant. Family members in my view have both legal and moral obligation to ensure that the applicant abides by his bail conditions and it does not require a court order to compel them to do which is their moral obligation to do so.

14. In his affidavit in support sworn 7^th October 2017, the applicant does not explain how the charges against him arose, the answer to which is explained in paragraph 11 as he states 'at the time of swearing this affidavit, the Information charging me are not yet ready". Otherwise the affidavit states the date of his arrest on 3^rd October 2017 and he goes onto annex the Information on both charges and their Summary of facts on the reverse side of both Information. He talks about denial of his bail the following day 4^th October, 2017 and engaging the services of Young and William Lawyers while being detained at the Police Station Wewak to pursue his bail application. He states that he denied the charges and will vigorously defend the case.

15. He said he will abide by all bail conditions, he will not interfere with witnesses and he is not a flight risk. Problem with this affidavit is that although the applicant in paragraph 6 of his affidavit annexed the Information and the Summary of Facts on both charges, apart from denying the allegations, he did not refute any of the specific allegations against him by two separate victims or complainants of his alleged actions.

16. In opposing bail the first of the affidavits filed by the police and deposed to by First Constable Imisar Piria states the following facts:

4. On Sunday the 1^st of October 2017, Complainants Ronald Hafa and Peter Hafa reported at Wewak Viaq Police Station that the Applicant Adrian Kum had threatened them with a firearm and destroyed their properties. These alleged offences were committed at Yarapi village located near Yarapos High School along the West Coast highway.

5. It was reported that the suspect Adrian Kum had mobilised his supporters who accompanied him carrying at least three factory made shot guns, bush knives and other offensive weapons. Adrian Kum was alleged to carry his own shotgun.

6. Adrian Kum and his supporters unlawfully entered Ronald Hafa and Peter Hafa’s residential premises. There Mr Kum stood in front of Peter Hafa’s dwelling house and discharged a shot at the house. At the time Peter Hafa and his family were inside the house.

7. It was also reported to police that Adrian Kum commanded his accomplices to shoot anyone in the area. As a result two more shots were discharged by his friends.

8. The group of men then went on a rampage causing extensive damage to property belonging to Peter Hafa, Ronald Hafa and Billy Waipa.

9. At 6:00am on Monday the 02^nd of October 2017 Adrian Kum was apprehended at Suambukau village. He was asked to surrender his shot gun to the police but did not do so. To date the firearm has not been retrieved by police.

10. Adrian Kum’s accomplices are known to police but have gone into hiding and have evaded police to date. As a result police have not recovered two shot guns during the incident. They pose a threat for future confrontations and potentially fatal outcomes.

11. As arresting officer I object to grant of bail at this time. The first ground of objection is that the real possibility that the applicant will interfere with witnesses. I believe that the applicant will use his shotgun for this purpose.

12. The second reason I object to bail is that the applicant will abscond his bail and not appear to answer to his charges. This is because the applicant has not stated in his Affidavit where he proposes to reside if granted bail and while awaiting the disposition of his case.

13. I have also been informed that the applicant has belittled the District Court as a “little Court”. His contemptuous remarks strengthen my belief that the applicant is likely to disrespect the court and not turn up for hearing.

17. These facts set out in a sworn affidavit was filed on the morning before the hearing of the application and the applicant's lawyer was served a copy. Notwithstanding serious allegations against the applicant in that affidavit, counsel for the applicant was determined to purse the application regardless despite not having sought full instructions from his client on those allegations and despite no rebuttal evidence filed in a form of responding affidavit or an affidavit in reply. After some persuasion counsel for the applicant saw the need for such rebuttal evidence and consented to an adjournment to the next day.

18. The following day 11^th October 2017 the applicant's affidavit in reply alluded to earlier had been sworn and filed. And at the same time there was again another affidavit sworn by Sergeant John Huaiembandi that I alluded to earlier revealing further incriminating evidence against the applicant, providing a strong factual basis upon which the police resisted bail. I set out parts of that affidavit below:

2. I am the prosecutor of the current summary case brought against the Applicant Adrian Kum. I have been asked by the State Prosecutor to give instructions in relation to the accused bail application. As such I’ am authorised to depose to this affidavit.

3. I was also the police prosecutor in three other charges heard by the Wewak District Court. All the charges were laid on the 13^th of June 2017 in relation to three separate summary offences allegedly committed on 20^th May 2017.

4. The defendant, Mr Adrian Kum was released on K600 bail. His three cases were dealt with by the District Court on Tuesday 10^th October 2017. He was found not guilty on two charges and guilty on one charge of using insulting words contrary to section 7(b) of the Summary Offences Act.

5. The first charge against Adrian Kum was that on the 20^th May 2017 he was unlawfully on the premises of Ronald Hafa, contrary to section 20 of the Summary Offences Act. Mr Kum was acquitted of this charge.

Annexed hereto and marked “A” is a true copy of the Police Information and Summary of Facts pertaining to that charge.

6. The second charge was that on the 20^th May 2017 he unlawfully assaulted Martha Hafa, contrary to section 6 (3) of the Summary Offences Act. Mr Kum was also acquitted of this charge.

Annexed hereto and marked “B” is a true copy of the Police Information and Summary of Facts pertaining to that charge.

7. The third charge against Adrian Kum was that on the 20^th May he used insulting words towards Ronald Hafa with intent to provoke a breach of the peace, contrary to section 7 (b) of the Summary Offences Act. Mr Kum was convicted of this charge. The District Court sentenced him to 12 months but wholly suspended the prison term with conditions that he keep the peace, not consume alcohol and to stay away from the complainant for 1 year.

Annexed hereto and marked “c” is a true copy of the Police Information and Summary of Facts pertaining to that charge.

19. In his affidavit in reply sworn 11^th October 2017, the applicant denies much of what has been stated in the affidavit of First Constable Imisar Piria apart from counter and dismissive remarks and statements.

20. Given the convoluted nature of this bail matter compounded by previously commenced criminal proceedings against the applicant involving the same victims as in this case climaxing with a conviction of the applicant just on the eve of this bail application with respect to his most recent charges unrelated to the earlier ones which go back to the month of May, some four months back, the question of interest of justice began to take centre stage. However, as I advised counsel for the applicant, justice is a double-edged sword, sometimes it is like a blind lady. However the prospects of leaving someone detained pending summary prosecutions of serious allegations involving use of firearms given the history of bad relationship between the parties as evidenced by recent conviction did not appeal to me so I prompted counsel for the applicant to provide further evidence of the applicant’s ability to attend court when required given that he provided his residential address to be in Gerehu in the National Capital District.

21. A supplementary affidavit was sworn and filed on the same day deposed to by the applicant parts of which I set out below:

3. Further to the statements I have deposed to in my earlier two affidavits filed 9 October 2017 (Court Document No. 2) and affidavit in reply filed 11 October 2017 (Court Document No. 8). I further depose to the following facts.

4. I am one of the shareholders, Director and Chairman of Wiruho Holdings Limited (a copy of the company extract is attached to in my affidavit filed on 9 October)

5. In my capacity as the director and chairman, I am in charge of the company’s full operations here in Wewak and in Port Moresby. As such I travel between Port Moresby and Wewak occasionally with respect to the company’s business operations.

Annexed hereto and marked “K” and “L” are true respective copies of the company’s profile and bank statement.

6. The company’s Wewak Office is located at East Sepik Council of Women’s building, Room No.4, Wewak Hill, Wewak, East Sepik Province.

Annexed hereto and marked with letter “M” is a true copy of the recent rental invoice issued to the Company by the landlord.

7. I am financially capable of attending from Port Moresby to Wewak for court hearing at the Wewak District Court in respect of the charges against me should the Court grant me bail with one of the conditions that I reside in Port Moresby as indicated to in my earlier affidavits. Annexed hereto and marked with letter “N” is a true copy of my personal bank statement obtained as at the date swearing this affidavit.

8. In fact, with respect to the previous charges against me in the Wewak District Court which have been concluded yesterday (10/10/2017), I have been faithfully attending to my court cases from Port Moresby whenever my case was listed for mentioned or hearing and therefore I intend to do the same should the Court grant me bail in this case.

9. Apart from my role in the company, I am also a community leader whom the community look up to me for assistance and leadership in matters that affect the community.

10. In regard to the allegation of use of firearms against me, I state that I am not a holder of any record firearm or gun nor do I have any firearm or gun in my possession.

11. Should I be on bail, I will endeavour to assist in maintaining peace in the community and assist the police in any further investigations.

12. I have identified and confirm Elis Banga and Casper Yake to act as my guarantors in the event that the Court grants me bail. Elis Banga is based in Port Moresby and Casper is based in Wewak.

22. Now that all necessary facts pertaining to this bail are set out let me address the legal issues arising from this application. The law is clearly set out in re Fred Keating[1983]PNGLR 133 and the many case authorities since that bail always remains a discretionary matter for the court before which an application is pursued. Section 9 BA is premised in the language that bail shall not be refused. In other words where a court is faced with a bail application, it shall not refuse bail, unless one of those considerations stipulated in section 9(1) (a) to (j) is present. The police are objecting to bail because (1) use of firearm that has not been recovered (2) no fixed address or residence in Wewak and therefore unlikely to attend Court if released on bail (3) current case or incident arose while applicant was on bail over other pending criminal charges involving him and the same complainants (4) applicant has been convicted and placed on 12 months good behaviour bond with respect to one of the three earlier charges and there was strong likelihood of the applicant interfering with one or more of the complainants who are the prosecution witnesses in the current two charges.

23. In the light of all the evidence presented before the court, all the grounds for objections raised by the police are not without merits. But I shall address each ground separately.

1. Use of firearm

24. As I discussed earlier, reliance on the use of firearm under section 4 BA was a misconstruction of the law in so far as it applied to this charge under FA section 59(2). However section 9(1) BA also refers to this consideration.

Section 9 provides:

“9. Bail not to be refused except on certain ground.

(1) Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following consideration:-

(a) that the person in custody is unlikely to appear at his trial if granted bail; or

(b) that the offence with which the person has been charged was committed whilst the person was on bail; or

(c) that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of-

(i) a serious assault; or

(ii) a threat of violence to another person; or

(iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive; or

(d) that the person is likely to commit an indictable offence if he is not in custody; or

(e) it is necessary for the person’s own protection for him to be in custody; or

(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings; or

(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property; or

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act against the person in custody; or

(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody; or

(j) that the alleged offence is one of breach of parole

(2) In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.

(3) For the purposes of Subsection (1)(i), “narcotic drug” has t he meaning given to it in the Customs Act.”

Under s.9(1)(c)(iii) BA it is within the learned magistrate’s exercise of discretion to refuse bail because the offence that the applicant was charged with albeit summary, involved the use of a firearm, thereby falling squarely within the exception provided in the section.

2. No fixed address and unlikely to appear in court

25. The applicant gave a fixed address in Port Moresby. However, from his affidavit as company director that has its’ base operations here in Wewak, he virtually lives in two places, Port Moresby and Wewak.

26. Probably it could help to provide a town address if he has any, maybe even more so now than ever given that the offences for which he now stands charged took place in the village. His continuous presence in the village pending disposition of this case is a worry, in the light of the history of bad or sour relationships between himself and the complainants.

3. Alleged offence committed while on bail for earlier trouble involving the same victims/complainants

27. This is a serious concern. The current two offences are alleged to have been committed against the same family who were the applicant’s victims in the earlier incident culminating in three charges being laid against him and he was convicted of one and acquitted of the other two.

While the charges are only allegations until proven beyond doubt, the fact that he is implicated in the offences and it involved the same parties for which he had been earlier charged aggravates the seriousness of the case.

28. But I do not think denial of bail is the option for the court.

4. Likelihood of interference with witnesses

29. Interference of witnesses cannot be ignored lightly given that this is not the first clash or encounter between the applicant and the complainants. And when the alleged offences are said to have be committed by the applicant during the currency of his bail, it shows that there is lack of respect for the court process and authority of the law and the legal system.

30. After analysing the pros and cons and all the grounds warranting denial of bail, I am of the view that injustice will result if bail is refused. This is not trying to down-play the seriousness of the charges against the applicant. Given his recent conviction for another summary offence against what appears to be a relative of one of the complainants and the punishment for one of the current charges carries a maximum of two years imprisonment, the possibility of a custodial punishment cannot be fully ruled out if there is a conviction under the Summary offences Act. But that is a matter for speculation and the court cannot speculate on conviction of a person charged with a criminal offence when considering bail. That would tantamount to prejudging the outcome of the case without even knowing the strength and quality of the prosecution evidence against the defendant. But I cannot imagine the applicant remaining in custody awaiting a summary court hearing with no certainty as to when it will end.

31. Bail is never to be used as a weapon or means of punishment even before a person is found guilty by the court and convicted of an offence. A person is presumed innocent until proven guilty of an offence. Bail must therefore be available at all times unless one of section 9(1) BA exceptions are made out that negate grant of bail.

32. As this case is returnable before the District Court on Wednesday 18^th October 2017, I am minded to release the applicant on bail on the condition that he does not leave Wewak until he has appeared in Court on the return date. If the case is not finalised on that day, he can seek variation of this condition of bail before the District Court to return to his usual place of residence provided he produces a return airline ticket Pom/Wewak/Pom showing his sincerity and commitment to attending court on the next return date. In other words at the time of seeking variation before the District Court, he must have readily available already pre-paid return ticket Pom/Wewak/Pom which must be produced to the court.

33. I therefore grant bail and impose the following interim conditions:

1. Deposit cash surety of K1000.00

2. Each guarantor pledge K500.

3. Applicant shall not leave Wewak until after 18^th October, 2017 when he had made his appearance in the District Court Wewak in answer to the charges against him.

4. Applicant shall not interfere with prosecution witnesses in this case namely Ronald Hafa and Peter Hafa of Yarapi village, Wewak ESP directly or indirectly, in person or through friends, agents or relatives or other persons.

5. Applicant shall refrain from entering or going within 100 meters from the residence or premises of the complainants Ronald Hafa and Peter Hafa at Yarapi village Wewak ESP pending the hearing of these charges and whilst on bail.

6. Whilst on bail the applicant shall not consume alcohol at all.

Concluding remarks

34. But I simply want to add this by way of summary. The propensity or tendency to offend against the same people by the applicant, supposing this accusation against him is true despite the fact that these charges are mere allegations and remain to be proven, it points to more serious undercurrents with potentiality to explode as it is indicative of some deeply rooted disagreement or discord between the parties that have not been disclosed to the Court. As is often the case, the Court only sees and deals with the tip of the ice-berg when it begins to melt and becomes visible through what is presented before the Court. That must be addressed properly and put to rest or there is far more serious problem waiting at the other end which only the parties in this conflict know and are aware of.

35. It must be remembered that whatever position one holds in the society or his own community means nothing if he cannot fix his backyard which includes his relationship with his neighbour, whoever he or she maybe, because unless he does so, his success in life will be short-lived as his own arrogance and stubbornness can cause for his own demise.
_______________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State