State v Edward [2018] PGNC 223; N7318 (22 June 2018)

N7318

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR (AP) NO 818 OF 2017

THE STATE

V

LOI KINGSLEY EDWARD

Kimbe: Miviri AJ
2018 : 21^st June

CRIMINAL LAW – Application for bail –Attempted Armed Robbery- S387 CCA – s9 (1) (c) (i) (ii) (iii) Bail Act – victim injured– bail not granted.

Facts

Applicant charged with attempted armed robbery while the victim was injured in the course.

Held

1. Bail objected
2. Bail refused
   

Cases sited:
Fred Keating [1988] PNGLR 133
Re Thomas Markus [1999] PGNC 82; N1931

Counsel:
L. Jack, for the State

D. Kari, for Defendant

RULING ON BAIL

22^nd June, 2018

1. MIVIRI AJ: This is the Ruling on an Application for Bail made by the Applicant who is in custody charged for attempted armed robbery.

Facts

2. The Applicant Loi Kingsley Edward is charged on information that he on the 16^th April 2017 at Valupai Plantation in Papua New Guinea whilst in the company of others and armed with dangerous weapons namely 3 homemade guns wounded Blasius Reu by discharging the loaded firearms.
   
3. He makes an application for bail pursuant to Section 6 of the Bail Act and Section 42 (6) of the Constitution. In so doing the provisions of Section 9 of the Bail Act are considered as to whether or not there are reasonable grounds upon which the applicant will appear at his trial whilst on bail. The offence is a threat of violence to another, use of offensive and dangerous weapons, and serious assault but that is outweighed by the material that the applicant has filed. 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 R v Slough Justices; Exparte Duncun and another [1982]75 Cr. App. R 384; In re Fred Keating [1988] PNGLR 133
   
4. 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 (15 September 1999) discretion meaning that there must be facts provided upon which the discretion in law will be exercised. Here these are the following that the applicant has filed.
   
5. The Applicant’s Affidavit dated the 14^th August 2017 deposes that he has an ill father in his middle age who needs his assistance because they have oil Palm back in the village at Bamba, Talasea. That is where he will reside and is willing to pay K500 or any amount to so attain.
   
6. The affidavit attaches as annexure “B” summary of Facts which shows out that a PMV registered number P 6039 came along the road and there was a road block where stones had been put on the road to stop the vehicle. The driver drove through the roadblock, the accused and two accomplices were angered and fired the guns that they had at the driver and crew which penetrated into the side of the crew Blasius Reu and injured him in his right leg and third went and hit the vehicle fuel tank. Applicant and accomplice realized that they had injured the crew and ran into the bushes at the side. Matter was reported to police and the accused and accomplice were arrested by Police from Talasea.
   
7. The Application is further supported by the affidavit of Otto Bara dated the 15^th November 2017 filed that same day. He is a clan leader of Dauli clan and a former village court magistrate of Bamba village Talasea. He knows the applicant well as they live in the same community. He is willing to be guarantor to ensure applicant readily meets his obligations should bail be granted.
   
8. The next is Patrick Wakore also of Bamba who knows the applicant very well as they live in the same community and knows the applicant as of good character. He is willing to be guarantor for the applicant and pledges the sum of K500 as surety should he be allowed on bail. That applicant will reside with his family at Bamba village Talasea.
   
9. The State does object to the application and invokes Section 9 (1) (c) (i) (ii) (iii) of the Bail Act as applicable here on the basis of which the material advanced do not reasonably show that applicant will reappear from Bail. In any case on the basis of which bail should be refused.
   
10. I have considered the application on its own merit and am satisfied on reasonable grounds that on the material in support that the application should not be granted in the terms as applied. In so doing I am not bound by technical rules of evidence but on the information as it is available. Here these are the affidavit of the applicant and his two proposed guarantors including the annexure to his affidavit. Viewed together I am not swayed that bail should be granted particularly in view of the fact that the other guarantor is not a reputed guarantor of standing in the community and upon whose word bail should be granted.
    
11. In my view this is insufficient to grant the application and accordingly the application for bail is refused.
    

Orders accordingly.
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitors : Lawyer for the Defendant