Aure v State [2020] PGNC 331; N8599 (27 October 2020)

N8599

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 249 OF 2020

JUNIOR AURE

V

THE STATE

Waigani: Tamate, J
2020: 20^th, 27^th October

PRACTICE AND PROCEDURE: Application for bail pursuant to Section 42(6) of Constitution and Sections 4 & 6 of the Bail Act, Ch. 340 – whether bail is readily available as of right to a person charged for robbery – each case to be determined on its own facts and circumstance.

The applicant was charged for the offence of robbery pursuant to section 386(1) (2) of the Criminal Code. Prior to him been charged for this offence he was initially charged for serious assault and was on bail at the District Court. However, that assault charge was struck out and his bail money of K500.00 was ordered by the Magistrate Tracey Ganai to be refunded to him. He has been remanded since for the robbery charge.

Held

(1) Bail is a Constitutional right and is readily available to a person in custody or charged for a criminal offence other than wilful murder or treason.

(2) Bail is granted to applicant with conditions.

Cases Cited

Fred Keating v The State [1983] PNGLR 133

Counsel

Fredrick Kirriwom, for the Applicant
Tapas Kametan, for the State

27^th October, 2020

DECISION ON BAIL

1. TAMATE, J: This is a decision on a bail application made by the applicant one Junior Aure. The applicant in support of his application has relied on his affidavit and affidavit of two others whom he has nominated to be his guarantors if bail is granted.

Charge

2. Applicant was charged for one count of robbery pursuant to section 386(1) (2) of the Criminal Code. He was charged that he on the 14^th day of September, 2019 at Vadavada settlement, Taurama in NCD stole from one Lyn Joe K700.00 in cash and at that time was armed with a kitchen knife and used actual violence and was in company of another.

Allegations

3. The brief allegations as per the statement of facts provided in support of the information laid are as follows:

The accused and another held up the victim and her husband as they were walking along the road toward the Manu Auto port Service Station. They grabbed V by her hand and started dragging her toward a club house. When V’s husband called out and tried to intervene the applicant punched V’s husband to the ground and was unconscious.

The applicant and his accomplice then took V to the Club house where they threatened to kill her with the knife and cut V’s bilum that was hanging around her neck with the knife and stole K700.00 in cash in it with other personal items.

As the A and his accomplice were attacking V some security men from the Club house came and started to fight with them. V was rescued by the men who came and assisted them while A and his accomplice started throwing stones, sticks and pieces of brick at the club house resulting in the owner of the club house been struck with a brick on his face causing him serious injury.

Applicant was subsequently arrested for the offence and when questioned briefly about the offence he admitted to punching V’s husband but denied stealing the money from V.

Issue

4. Whether applicant can be granted bail in the interest of justice?

Law

5. The Law on Bail is provided for under the Constitution and the Bail Act, Chapter 340.

6. Section 42 (6) of the Constitution provides:

“A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require”

7. Section 3 of the Bail Act provides:

“OBJECT OF PART II.

The object of this Part is to give effect to Section 42(6) (liberty of the person) of the Constitution which provides that a person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention and to acquittal or conviction unless the interests of justice otherwise require.”

8. Section 6 of the Bail Act provides:

“(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.”

BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

9. Section 9 of the Bail Act provides:

(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 covered and the person if released would make efforts to conceal or otherwise deal with the property;

(h) ....”

Evidence in support of Application

10. The applicant has relied on his affidavit and affidavits of his two proposed guarantors who have supported him in his application.

11. The Applicant has briefly stated that he is 26 years of age and comes from Dirima village in Gumine District of Chimbu Province. Prior to his arrest he has been living at Vadavada settlement with his wife Louise Solpa. He is a member of the Catholic faith and has completed grade 12 education. He earned entry in to UPNG to study Public Policy management but failed a compulsory enrichment course entitled Computer Literacy and Numeracy course.

12. He stated that he was in the process of applying for re admission into UPNG in November, 2019 when he was arrested and charged for the offence of serious assault. He was on K500.00 bail and was attending for the 2^nd mention when he was arrested again and charged for this offence of armed robbery. He has been detained since. The serious assault Charge however, was struck out and his bail money was refunded to him.

GROUNDS FOR BAIL

13. The applicant has relied on the following grounds why bail should be granted:

(a) He is concerned about the welfare of his family, especially his wife whom he has assisted in her informal market to help sustain them and also raise money for his University registration fees. He is concerned about his continued detention which may prevent his opportunity from completing his UPNG studies and graduating with a University degree.

(b) The second reason he has given is the overcrowding at Bomana CS which he says will render him susceptible to contracting contagious diseases especially when the Covid 19 pandemic outbreak is real in Port Moresby. He also has stated that with the new inmates or remandees going into Bomana CS there is no proper check-up or screening been done for corona virus therefore the risk of this virus infection is real in Port Moresby.

14. He wants to be allowed on bail with cash bail of K500.00. He has nominated two persons as his guarantors namely; David Bob Kaul and Tom Pena.

15. There is no affidavit from these two persons. However, Mr. Kirriwom, lawyer for the applicant has deposed in his affidavit of service that the affidavits of guarantors for the applicant he has served on the Office of the Public Prosecutor were Barth Bomai and John Yomba. These are two different persons who have not been nominated by the applicant as his two guarantors.

16. The law on bail is clear in that a person charged with a criminal offence (other than treason or wilful murder) is entitled to bail at all times. Bail is readily available to him unless the interest of justice otherwise requires.

17. Section 9 of the Bail Act clearly states that bail shall not be refused unless one or any of the considerations exist. However, in the case of Fred Keating v The State [1983] PNGLR 133; SC257 the Court held that even if one or any of the considerations under section 9 exists the Court still has discretion to grant bail.

18. The applicant has been in custody since his arrest for this offence on or about 20^th of November, 2019. The facts of the case shows that he was with another named Willie Dua when the alleged offence was committed. The facts state that when the Applicant was arrested, he was questioned about the incident and he admitted assaulting V’s husband but denied stealing any money.

19. There was use of a kitchen knife on a helpless woman whose husband was also attacked and their money was stolen with some other personal items. There was a serious assault on the V and the owner of the club house.

20. The crime of robbery is serious when there is violence or threats of violence been used including use of dangerous or offensive weapons. A woman would have been killed if the security officers had not come to her aid. The smaller amount of money stolen does not make this offence less serious. It is still serious and such behavior by offenders like the applicant just make our streets unsafe for the normal people to use and freely exercise their freedom of movement.

Exercise of Discretion

21. In the exercise of discretion can the Court grant bail to the applicant?

22. I have considered the evidence and grounds in support of the bail application as well as submissions by the Applicant and the State.

23. Weighing the matters raised by both the Applicant and the Respondent, I am not satisfied with the guarantors as they have not been nominated by the applicant.

24. The applicant is now concerned about his UPNG studies. He wants to raise funds for his readmission. The behavior he demonstrated on the victim and the husband does not fit the behavior of a University student.

25. Further, the applicant did admit to the assault of victim’s husband but denied taking any money from the victim. Obviously, the State will invoke Section 7 of the Criminal Code Act to make him a principle offender to the crime.

26. I am mindful of the considerations in Section 9(1) of the Bail Act and find that there exits the following:

➢ There was a serious assault, a knife was. Applicant was in company of another. Victim’s husband was punched and a kitchen knife was placed on the neck of the victim.
➢ He is unlikely to appear if allowed on bail knowing very well that he has already made admissions.

Conclusion

27. There are considerations under section 9 (1) of the Bail Act that exist. The question to consider is “should the discretion of the Court be exercised in favour of granting or refusing bail?

28. In the exercise of my discretion, I am of the view that the applicant should remain in custody awaiting his case.

29. Order of the Court

(1) Bail is refused.

(2) Applicant shall remain in custody awaiting his court case.

Decision on bail accordingly

__________________________________________________________________

Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State