Pilai v State [2018] PGNC 327; N7389 (24 July 2018)

N7389

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 172 OF 2018

JUSTIN PILAI

V

STATE

Waigani: Miviri AJ
2018: 20^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application-unlawful use of motor vehicle s383 CCA – Armed Robbery s386 CCA – grounds under section S9 (1) (c) (i)(ii)(iii) Bail act invoked-threats of violence-offensive and dangerous weapon used-S9 (1) ( c) (i)(ii)(iii) – substance to application-Student – relatives as guarantors – Bail refused – remanded.

Facts

Applicant charged with unlawful use of motor vehicle and armed robbery applying for bail on basis that student at college.

Held

No guarantee applicant will reappear from bail
Guarantors not independent
Bail Refused.
Applicant Remanded

Cases:

Re-Fred Keating [1988] PNGLR 133

Counsel:

L, Jack, for the State
I. Paileae, for the Defendant

RULING

24^th July, 2018

1. MIVIRI AJ: This is the Ruling on an Application for Bail made by the Applicant remanded in custody who is charged with Unlawful Use of Motor Vehicle under Section 383 and Armed Robbery pursuant to Section 386 of the Criminal Code.
   

Information

2. Annexure A1 of the Affidavit of the Applicant dated the 2^nd July, 2018 is the Information laid dated the 16^th April, 2018 charges that he on the 07^th day of April 2018 at Gerehu Stage 2 Sports Centre in the National Capital District unlawfully used a motor vehicle Toyota Windom white registration number BFC 397without the consent of the owner.
   
3. Annexure A2 is the facts on the charge; Applicant accompanied others armed with homemade gun went to the sports centre and held up the victim and stole from him the vehicle BFC-397(supra), a canon camera, Mobile phone and bank cards. Victim identified the accused and his cousin. Accused negotiated the return of the vehicle. Accused with the others were seen at his residence consuming alcohol. Prima facie without going into the details of evidence the identification by the victim is very strong evidence against the applicant of involvement in the allegation. That is not to say that because of that fact bail should be refused. Bail is not the same as the trial proper in that matter and will be considered as and when it occurs. What is before me is whether or not the applicant should be granted bail? If so on what basis, if not on what basis? That is the primary concern today.
   

Bail Application

4. The Applicant has invoked the provisions of the Bail Act Section 4 and 6, 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 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,
   

“Considerations Affecting Decision on Bail Matters.

9. 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.
   

Issue

9. Are there substantial grounds here for me to refuse the application for bail?
   

Application of the law to facts

10. The issue recognizes the Constitutional basis where the right is drawn from. In so doing the technical rules of evidence do not bind me over but I can consider what material is available to me, Section 9 (2) Bail Act. It is by that fact a wide discretion based by proper and substantial reasons not otherwise.
    

Facts relied applied

11. The Applicant was a student at the Tafe College Ela Beach Port Moresby and has produced a letter from that college signed by the Business and Finance Department confirming that he was a certificate 111 account student for 2018. And was a current student there supposed to have completed the program in June 2018. That letter is dated the 25^th April 2018. The application is made for an offence that has now taken place allegedly of the 7^th April 2018. Even though he was a student the course has come to an end as of June 2018. It means reliance to go back to school has now lapsed and would not be substantial reason to be granted bail. Particularly because the letter does not go on to state that because he has now missed out the end of the course in June 2018, he will go back and be allowed to complete when he comes out on bail. Nor is there an arrangement that has been made for his entry upon exit on bail to continue his course. That is not the case here. Submission by counsel are that he will come out to find means to continue the course. That is a general assumption not backed by evidence. I am not bound by the technical rules of evidence but the discretion will be invoked on proper basis in law. In the present there are no proper basis demonstrated here by the application to invoke the discretion of the court. His application will not be considered without.
    

Section 9 (1) (c) (i) (ii) (iii) made out

12. The material in view and relied on as basis do not substantially demonstrate to invoke discretion of the court in favour of the application. The facts on the information annexure “A3”clearly depict serious basis for the application of Section 9 (1)(a) and (c) (i)(ii)(iii), a serious assault or threat of violence to another, and being armed with a dangerous weapon here homemade pistol. There is clear invoking of this section against this application substantially in the words of Re-Fred Keating (supra). By itself is basis for the refusal of this application.
    

Section (1) (a) made out

13. He relies on proposed guarantors Ruth and Debra Horambe both his maternal aunties as both are sisters of his mother deposed by both affidavits sworn dated the 21^st June 2018 filed the 09^th June 2018. They are not independent guarantors. As immediate relatives they were always there prior to the commission of the allegation if their presence did not deter the allegation what guarantee is there that will be the case on bail by the applicant. They do not need to be guarantors they were always there as relatives. True the residual location of the guarantors are confirmed but in view of the seriousness of the allegation independent guarantors are required here which is not the case of both and the court will not endorse both. There would need to be independent guarantors to further the application. For now that is not the case and on that basis the application will be refused invoking Section 9 (1) (a) that there will be no guarantee of the applicant if granted the application for bail.
    
14. The facts in annexure “A3” the victim identifies accused with his cousin named as Michael Flanto as co accused in the matter. Prima facie that draws a serious basis upon which invocation of Section 9 (1) (c) (i) (ii) (iii) are substantially made out against the applicant and a proper basis to refuse bail against the applicant. Because the charge envisages the maximum penalty of death it is therefore very serious and including the facts relating to set out by the information.
    
15. There are substantial reasons set out above for the refusal of the application and accordingly the application is refused and he is remanded.
    
16. Application is refused and denied. He remains remanded.
    

Orders Accordingly,
______________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitors : Lawyer for the Defendant