N8600

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 617 OF 2020

MILENG MEDAKO

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

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

PRACTICE AND PROCECURE - Application for bail pursuant to Section 42(6) of the Constitution and sections 4 and 6 of the Bail Act, Ch. 340 – Whether bail can be granted in the interest of justice.

The applicant was charged for robbery pursuant to section 386(1)(2) of the Bail Act. He applies for bail for various reasons and one been that he should also be granted bail because his co-accused was granted bail earlier by this Court. 

Held

1.	Bail is a constitutional right and is readily available to persons           charged with criminal offences other than wilful murder or treason 

2.	In the exercise of discretion bail is refused.

Cases Cited

Fred Keating v The State [1983] PNGLR 133; SC257
Yasause v State [2011] PGSC 15; SC1112

Counsel

Agnes Peter, for Applicant
Dale Digori, for State

27th October, 2020
DECISION ON BAIL
1. 	TAMATE, J: This is a decision on an application for Bail pursuant to Section 42(6) of the Constitution and Sections 4 and 6 of the Bail Act.
Charge
2. 	The Applicant was charged for one count of robbery pursuant to Section 386(1) (2) (a) (b) of the Criminal Code Act. He has been charged that he on 21.08.2020 and others held up the victims General Manager of Property Investment and Consultant Ltd and his Operation Manager and stole from them K21,000.00 (salaries for his employers) in cash, cell phone (K5,000.00) and a Galaxy mobile phone (K3,000.00).
3.	The State alleged that the Applicant and the others were armed with four firearms and acted together in committing this offence.
4.	The accused surrendered to the Police on 27th August 2020 after Police had left a message with his family at Morata (No. 2) the previous day.
5.	The facts state that when Applicant surrendered to Police, he told Police that he was involved in the offence. He said he had hired the vehicle that was used in the robbery and he said he was in the vehicle when the robbery took place.
AFFIDAVITS IN SUPPORT:
(i)	 	Applicant of: Mileng Medako
(ii)	 	 Affidavit of Pastor Pei Kend – SDA church at Morata
(iii)	Marcel Jerry (Dr.) serving as the Emergency Doctor 
 	at Gerehu Hospital. He is 26 years old and as married
          with three Children.
EVIDENCE IN SUPPORT OF THE APPLICATION:
6.	Grounds of the application
(1)	This is first time for such allegation of robbery has been made against him. He does not have any past Criminal record and has been a good citizen in the community.
(2)	He is a single parent and is concerned about the welfare of his young child (1 year 2 months old) as he is the sole breadwinner.
(3)	He has and suffers from chronic bronchitis condition and seek bail because of the cells are not conducive to his health and medical condition. 
ISSUE:
7.	Can applicant be allowed bail in the circumstances of this case?
LAW:
8.	The Law on Bail is clear and is governed by the Constitution and the Bail Act Chapter 340 including case laws.
Constitution:
9.	Section 42(6) Constitution: Liberty of the person

“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.

10.	Section 4 Bail Act provides:
     
ONLY NATIONAL OR SUPREME COURT MAY GRANT BAIL IN     
          CERTAIN CASES. 

“(1) A person– 

  (a)  charged with wilful murder, murder or an offence punishable
         by death; or 
  (b) charged with rape, abduction, piracy, burglary, stealing with 
        violence or robbery, kidnapping, assault with intent to steal,
        or breaking and entering a building or dwelling-house, and in
        which a firearm is involved, irrespective of whether or not the 
        firearm was actually used in the commission of the alleged 
       offence, shall not be granted bail except by the National Court 
       or the Supreme Court.

11.	Section 6 Bail Act provides: 

APPLICATION FOR BAIL MAY BE MADE AT ANY TIME. 

(1)  An application for bail may be made to a court at any time 
 	  after person has been arrested or detained or at any stage 
 	  of a proceeding.
(2) A court shall consider an application for bail at the time it is
      made    unless it is satisfied that no steps that were reasonable in 
      the circumstances have been taken to advise the informant that 
      the application would be made. 
(3) Subject to Section 4, the court shall grant or refuse bail in 
      accordance with Section 9.
 
12.	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 recovered and the person if released would 
      make effort to conceal or otherwise deal with the property;
(h) ….”

13.	Bail is a Constitution right and is readily available to person (s) charge with criminal offences other than wilful murder or treason. 
14.	And further that bail is available at any time from arrest and detention to acquittal and conviction unless the interest of justice otherwise requires.
15.	Section 9(1) provides that bail maybe refused if one or any of the consideration is present Court still has the direction to grant bail Fred Keating -Vs- State [1983] PNGLR 133; SC257
EVIDENCE
16.	The Application states he is 27 years of age and comes from Kurum on Karkar Island, Madang Province. He is a single parent with a 01 year and 2 months old child. Prior to been arrested, he was living with his family at Morata one (1), Talapia Street here in NCD.
17. 	He has deposed that he is currently employed as an IT Technician with Rimbunan Hijau Group of companies at Vision City Mall in Waigani, NCD. He has produced a letter from his employer (HR Division) confirming his employment there.
18.	Prior to his detention, he stated that he was fully engaged in his employment. He is the sole breadwinner and he fears his son is not getting his financial support.
19.	He has also stated that he is suffering from chronic bronchitis and had been advised by Doctors to keep away from cold and damp environments.
20.	He has provided a medical report from Dr. Sonny Kibob who has confirmed the status of his health condition during his last presentation on 12th December 2020.
SUBMISSION
21.	In support of his application his lawyer Ms. Peter submitted that the applicant should be granted bail because of the grounds he had referred to and secondly that this Court had previously granted bail to his co-accused one Stanis Susuve.
22.	She submitted that with all fairness this accused should be treated equally as he too has a health condition and has a young child. 
23.	To avoid any unfairness or double standard, this applicant should also be allowed on bail. He is employed by RH and will comply with any bail condition if granted bail. 
24.	He says he can afford cash bail of K1,000.00 while his guarantors are willing to pledge a surety of K500.00 each. 

STATE’S RESPONSE
25.	Mr. Digori for the State submitted that the offence of robbery is a very serious offence and carries a maximum of death penalty. 
26.	He has submitted that the Applicant had admitted been involved in the alleged offence. According to the statement of facts, the accused surrendered to Police and admitted his involvement to the Police saying he was the person who had hired the car that was used in the robbery. Furthermore, he said he was in the car when the robbery took place and was given K200.00 after the robbery.
27.	Mr. Digori submitted that the applicant should be refused bail as there is the possibility of applicant absconding bail. There have been considerations in section 9 of the Bail Act including threats of violence used on the victims and there were 4 factory made pistols used in the robbery.
28.	Many times offenders of such serious offences raise grounds about the welfare of their children and their families and the hardship they face because of their incarceration. 
29.	They also raise concerns about their health conditions, their employment status and their innocence. These are natural consequences of one’s own conduct when committing an offence. These matters are not considered prior to committing an offence.
30.	In the case of Yasause v State [2011] PGSC 15; SC1112, the Court said:
“When an accused person is remanded in custody it is only natural that the family will suffer in the sense that it will miss the usual parental support including (emotional and financial).” 

DISCRETION
31.	The Court has a discretion to either grant or refuse bail when considering the circumstances of a case. In this case there are possible admissions by accused about his involvement in this crime. With the high rate of persons on bail absconding bail it would not be in the public interest to just allow bail to a person who has already confessed to the offence. It will be a risk to allow an applicant to go out on bail in such situations because there is a possibility that he will not appear for his case.
32.	I have considered the submission by Ms. Peter that the applicant should be granted bail as the co accused Stanis Susuve was granted bail. I am of the view that there is no admission by Stanis Susuve about been involved in the robbery. He said he was approached by two people who were trying to sell an IPhone to him when he realised the IPhone had a detecting or tracking device on it so he gave it back to the two suspects.
33.	In the present the applicant is said to have confessed his involvement in the alleged robbery therefore I will treat his application differently.
34.	Further, the applicant has not provided a very recent medical report on the status of his medical condition – chronic bronchitis. He has provided a report that was made in December, 2019 therefore the Court does not know the latest report of applicant’s real health condition.
35.	I have considered the evidence and submission from the applicant and the State and I am of the view that it would be in the interest of justice that applicant be refused bail for the reasons stated above. 
36.	The decision of the Court is as follows:
(1)	Bail is refused.
(2)	Applicant Mileng Medako shall remain in custody awaiting 
                    his court appearances at the Waigani Committal Court.
Ruling accordingly.
___________________________________________________________
Public Prosecutor: 	Lawyers for the Plaintiff
Public Solicitor:	 Lawyers for Defendants