State v Maso [2018] PGNC 211; N7314 (22 June 2018)

N7314

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 112 OF 2018

THE STATE

V

NIGEL MASO

Kimbe: Miviri AJ
2018: 21^st June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application – Bail Act S6–S 42 (6) Constitution ––armed robbery–Arson—State objections—S 9 (1) Bail Act—Bail granted

Cases:
Re Thomas Markus [1999] PGNC 82; N1931
Anabtawi, Re Bail Application [1980] PNGLR 195

Counsel:

L. Jack, for the State
D Kari, for the Defendant

RULING ON BAIL APPLICATION

22^nd June, 2018

1. MIVIRI AJ: This is the ruling on an application for bail pursuant to Section 6 of the Bail Act and Section 42 (6) of the Constitution by the applicant charged with Armed Robbery and Arson and now in custody.
   

Short facts

2. Nigel Maso is charged with armed robbery that he on the 29^th July 2016 at Tamba section 7 block 503 stole from Anna Marcus and others market goods to the value of K12, 041 and cash money of K 4, 580. And at this time he was accompanied by others and was armed with dangerous weapons bush knives wire catapult and factory made shotgun and threatened to use actual violence contravening Section 386 (1)(2)(a)(b) (c) of the Criminal Code. It is alleged the shotgun was discharged three times in the process there.
   
3. He is further charged that on the same day at the same place he unlawfully and wilfully set fire to the market houses of Anna Marcus contravening section 436 of the Criminal Code.
   

Bail application

4. The applicant has invoked the provisions of the Bail Act Section 6 and Section 42 (6) of the Constitution for bail pending trial.
   

Constitution Section 42 (6) right to bail

5. Section 42(6) of the Constitution basically gives the right to bail from arrest or detention to all offences excluding wilful murder or treason. And this is available to the defendants applicants from arrest detention right down to acquittal or conviction unless the interest of Justice otherwise requires.
   

Section 6 Bail Act

6. Section 6 of the Bail Act enforces this in allowing bail to be applied for at any time after arrest and detention with the exception of offences under Section 4 which are the exclusive prerogative of the National and the Supreme Court only. In so doing the court shall grant or refuse bail in accordance with Section 9.
   
7. And section 9 is in these terms,
   

BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

(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 considerations:–

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

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

(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;

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

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

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

(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;

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;

(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;

(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 the meaning given to it in the Customs Act 1951.”

8. It is required, “before the discretion to refuse bail arises the court has to be satisfied that there are substantial grounds for believing that one or more of the matter described in section 9 (1) (a) to (g) are present It is the existence of substantial grounds for the belief not the belief itself which is the crucial factor: see Rv. Slough Justices; Ex Parte Duncan and Another [1982] 75 Cr. App. R 384” In Re-Fred Keating [1988] PNGLR 133.
   
9. Applicant has the right to be granted bail by virtue of Section 6 of the Bail Act reinforced by the Constitution Section 42 (6) but in the exercise of that discretion the court is directed to Section 9 of the Bail Act. Re Thomas Markus [1999] PGNC 82; N1931.
   
10. The applicant relies on his affidavit in particular that his co accused Kelvin Ruben Sikuri and Benny Pangura have been granted bail in the sum of K1000 on the 21^st August 2017 and 24^th August 2017. State counsel has rightly submitted that each case must be considered on each own merits.
    
11. The materials that the applicant has submitted and filed to invoke discretion of the court to grant bail in addition to his own affidavit are that of his proposed guarantors. Firstly the affidavit of one Sharon Ngala dated the 26^th April 2018 who he has proposed as his guarantor in support of his application. She is NGO representative of Women and Youth in the West New Britain Provincial Government. She is also Woman leader in the local church Tamba SDA. She deposes that, the applicant is well mannered respectful to others in the community of Tamba. He was a grade 10 student at Poinini Agricultural Technical High School. But did not go onto complete as he was incarcerated for this allegation. She is prepared to volunteer as his guarantor. Whose statement is annexure “B2”of the affidavit of the Applicant.
    
12. The next guarantor proposed by the applicant is Tobias Malisa who is a village court Magistrate of Tamba and holds position of Board of Chairman of Tamba Primary School Ward 7. He deposes that the applicant attends the school he is chairman of. He has no bad record and is a kind person. He has left without completing grade 10 at Poinini Agricultural Technical High School.
    
13. The applicant has attached as annexure “B1” statement of character stated to by this proposed guarantor as to his character. He enlightens that the character of the applicant is a good person with no bad record. And on which basis he is prepared to be guarantor. Also with the fact that all have been resident there at Tamba for a long time.
    
14. On the strength of these material I am satisfied on reasonable grounds as to there been guarantee by both his proposed guarantors of Tobias Malisa and Sharon Ngala that he will reappear should he be granted bail. Accordingly Tobias Malisa village court Magistrate of Tamba and Board of Chairman of Tamba Primary School Ward 7 and Sharon Ngala NGO representative of Women and Youth in the West New Britain Provincial Government are the approved guarantors who shall both pledge surety in the sum of K600 each for the bail of the applicant.
    
15. Further that he has a permanent place of resident at Tamba section 10 Mosa Local level Government Kimbe with his family where he will be resident.
    
16. Applicant’s co accused Benny Pangura and Kelvin Ruben have been granted bail in the sum of K1000 as confirmed by the receipts that he has attached to his affidavit as annexure, “A1” and “A2”.
    
17. I am not bound by the technical rules of evidence but on such information as are available here some of which I have set out above. And is there reasonable grounds established by these that the applicant is likely to appear at his trial if granted bail? I consider that there are reasonable grounds established that the applicant will appear at his trial if bail is granted on the material he has filed in support of his application. The guarantors have been approved and he has a fixed place of abode and a fixed location at Tamba where he can be located with the guarantee by his guarantors named above.
    
18. Parallel with the affidavit of Inspector Oscar Tobing officer In charge of Criminal Investigations Branch there is nothing to stop the exercise of discretion in favour of the applicant on the material that he has filed in support of the application. Accordingly the application is granted and the following orders are made effecting;
    
    • (1) Bail is granted in the sum of K1000 cash bail to be paid and receipt to be produced to Court to release the applicant.
      
    • (2) Tobias Malisa and Sharon Ngala are approved as guarantors who shall pledge to owe K600 each to the State.
      
    • (3) The applicant shall report to the Kimbe National Court registry every government Friday between the hours of 8.00am and 4.06pm.
      
    • (4) The applicant shall reside at Tamba section 10 Mosa Local level Government and shall not leave that address or Kimbe without the leave of the National Court Kimbe.
      
    • (5) The applicant shall attend call over the court every first Monday or every month until his case is dealt with according to law.
      
    • (6) The applicant shall be of Good behaviour at all times.
      
    • (7) The Applicant shall not interfere with any witnesses.
      

Orders Accordingly.
__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant