Gerry v Independent State of Papua New Guinea [2018] PGNC 38; N7109 (9 January 2018)

N7109

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 881 of 2017

BETWEEN:

SPENCER GERRY
Applicant

AND:

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA

Respondent

Waigani: Hartshorn, J.
2018: 8^th, 9^th January

Application for Bail

Case cited:

Re Bail Application, Fred Keating v. The State (1983) SC257

Counsel:

Mr. J. Kolowe, for the Applicant
Mr. E. Thomas, for the Respondent

9^th January, 2018

1. HARTSHORN J: The applicant Spencer Gerry, has been charged with Armed Robbery pursuant to s. 386 (1) (2) (a) (b) (c) and Burglary pursuant to s. 395 (1) (c) Criminal Code Act Ch. 262. The maximum penalty for Armed Robbery is death and for Burglary, life imprisonment if that offence was committed at night.

2. He applies for bail.

3. The applicant strongly denies the charges. He further deposes that amongst others, that he is married with three children, that he lives with his parents and siblings, that he assists in church activities, that he has a kidney and heart problem, that he requires to be out on bail to continue medical treatment and also to provide for his wife and children as they solely depend upon him financially.

4. The State objects to bail as it contends that:

a) the alleged act constituting the offences in respect of which the applicant is in custody consists of having or possessing a firearm and therefore comes within s. 9 (1) (c) (iii) Bail Act. Consequently if a bail authority is satisfied on reasonable grounds that this is so it may refuse bail;

b) the evidence concerning the applicant’s medical condition is not sufficient and does not support his claim of having a heart problem;

c) the amounts offered to be pledged as security by the proposed guarantors are only K100.00. This is not sufficient given the seriousness of the offences. Further, there is no evidence that the proposed guarantors have the ability to pay these amounts in any event.

d) the applicant’s evidence does not disclose that he has employment and he lives with his parents. These factors indicate that he may be a flight risk;

e) the amount of money stolen is K 300,000.00. I note however that there is no evidence of this and it is not mentioned in the police summary of facts

5. The two proposed guarantors have given evidence that they are so willing.

6. The right to bail is guaranteed by s 42(6) Constitution. Section 9 Bail Act sets out the criteria for refusing bail. In Re Bail Application, Fred Keating v. The State (1983) SC257, the Supreme Court said:

When considering the grant or refusal of bail in cases other than wilful murder or treason, the courts and other bail authorities are to be guided generally by s. 9. But whilst the Bail Act is a complete code in dealing with the grant or refusal of bail, by s.3, in matters other than wilful murder or treason, the bail authority may still have to consider the question of the interest of justice. This may involve considerations other than the criteria for refusing bail as established in this section.

7. The Supreme Court also held that the existence of any of the factors under s. 9 does not automatically operate as a bar to the grant of bail. Instead, the court or the bail authority has the discretion to decide whether to grant bail, having regard to the particular circumstances of each case and in the interests of justice.

8. In regard to the particular circumstances of this case and the grounds relied upon by the applicant, as to the submission that the applicant requires bail so that he can continue with his medical treatment, there is no evidence that he cannot obtain appropriate medical treatment while he remains in custody, no evidence that he has not received appropriate medical treatment whilst in custody, no evidence that he has been denied access to his doctor for treatment or that his doctor has been prevented from seeing him. In my view the evidence is not such as to justify the applicant being granted bail because of his medical condition.

9. As to the evidence concerning him requiring bail so that he may support his family, that there will be hardship on family members when a husband and father is incarcerated is an inevitable consequence but not unusual. I note also that there is no evidence of whether the applicant is employed and how he supported and intends to support his wife and children in the event that bail was granted.

10. As I am satisfied on reasonable grounds that the acts constituting the offences in respect of which the applicant is in custody come within s. 9(1)(c) (ii) and (iii) Bail Act, that is a threat of violence to another person and having or possessing a firearm, and as the evidence as to the other grounds upon which the applicant seeks bail is inadequate and insufficient, I am satisfied that it is not in the interests of justice that I should exercise this court’s discretion and grant bail.

11. Accordingly the application by Spencer Gerry for bail is refused.
___________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent