Allan v State [2020] PGNC 505; N9899 (21 July 2020)

N9899

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 135 OF 2020

ISMAEL ALLAN

v.

THE STATE

CR (AP) NO. 136 OF 2020

EDWIN TUOKISA

v.

THE STATE

CR (AP) NO. 137 OF 2020

MONFA CARLOS MARUS

v.

THE STATE

CR (AP) NO. 138 OF 2020

JACKSON WAFI

v.

THE STATE

CR (AP) NO. 139 OF 2020

GRAY ERIBA

v.

THE STATE

IN THE MATTER OF AN APPLICATION FOR BAIL PURSUANT TO SECTION 42(6) OF THE CONSTITUTION
AND SECTION 4 OF THE BAIL ACT

Kokopo: Suelip AJ
2020: 8^th, 10^th & 21^st July

CRIMINAL LAW – Bail application – charge for armed robbery – bail discretionary – bail should not be refused except on certain grounds – grounds of objections very serious for consideration – one applicant on bench warrant – bail refused

Cases Cited:

Haiveta v. State [2000] PNGLR 260
Re-Herman Kagl Diawo [1989] PNGLR 148
Re: Fred Keating [1983] PNGLR 133
Re: Kou Duo [1984] PNGLR 22
Donald Okole & 2 Others (unreported)
State v Nigel Maso N7314

Counsel

Ms N Rainol, for the Applicants
Ms J Batil, for the State

RULING ON BAIL APPLICATION

21^st July, 2020

1. SUELIP AJ: The applicants are asking for bail pursuant to section 42(6) of the Constitution and Sections 3, 4, 6 and 9 of the Bail Act.

Charge

2. The applicants are co-accused, also described as Accused number 1-5, are charged for one count of robbery pursuant to section 386(1)(2)(a)(b) of the Criminal Code Act. It is alleged that the applicants robbed from Tzen Niugini PNG Limited Company, K40,000.00 cash, company mess goods valued at K3,340.00, with an outboard motor and dinghy, a total value of K81,340.00. The alleged offence took place on Wednesday 4 March 2020 between 9.45am to 10.15am at Masarau Oil Palm Plantation beach front in East Pomio District, East New Britain Province.

3. It is alleged that the applicants described as Accused number 1 and 2 were armed with offensive weapons and a bush knife and used their weapons to point at the boat operator and passengers, who were told to get off the dinghy before taking control of the company property and all properties and goods. Thereafter, the applicants are alleged to have tracked on foot to Warangoi and were picked up and transported on arrangement by Accused Number 4 and 5 in a vehicle, a brown Ford Ranger Registration Number RAL 470 and taken to Bates Street, in Rabaul town.

4. It is further alleged that Accused Number 3 had text messages in his phone which showed he was angry about the gang because they had dropped his firearm which he gave them to use in the arm robbery.

Background

5. The applicants’ have since March 2020 been detained at Kokopo Police Station holdings cells. They were formally charged on 24 March 2020 on one count of robbery under Section 368 of the Criminal Code Act.

6. During the Covid-19 lock down period, all the applicants were allowed bail. However, only two applicants, Gray Eriba and Jackson Wafi, paid their K500 Police bail and were released without proper bail conditions set pending committal proceedings.

7. The three other applicants Ismael Allan, Edwin Tuokisa and Monfa Carlos were also told to pay K500 Police bail which they did the following week but were denied Police bail. They have remained in custody since 24 March 2020. It is almost 4 months and their matters have not been mentioned once before the Committal Court.

Issue

8. Whether the applicants should be granted bail?

Law

9. The jurisdictional basis for the application is section 42(6) of the Constitution, which provide as follows:

Section 42

...

(6) 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. The applicants also apply for bail pursuant to sections 3, 4, 6 and 9 of the Bail Act which provide:

3. 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.

4. Bail only by National or Supreme Court in certain cases.

A person charged with wilful murder, murder or an offence punishable by death shall not be granted bail except by National Court or the Supreme Court.

5. ...

6. Application for bail may be made at any time.

(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.

(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.

7. ...
8. ...

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 consideration:-

(a) that the person in custody is unlikely to appear at his trial if granted bail; or

(b) that the offence with which the person has been charged was committed whilst the person was on bail; or

(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; or

(d) that the person is likely to commit an indicatable offence if he is not in custody; or

(e) it is necessary for the person’s own protection for him to be in custody; or

(f) that the person is likely to interfered with witnesses or the person who instituted the proceedings; or

(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 process or pending, extradition proceedings made under the Extradition Act (chap 49) against the person in custody; and

(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; or

(j) that the alleged offence is one of breach of parole.

...

11. It is clear from these provisions that an application for bail may be made to a Court at any stage of the proceedings. As bail is a right, it should not be refused unless at least one of the considerations under s.9 of the Bail Act is present. Even if one or more of the considerations exist, the court still has a discretion whether to grant bail or not, the onus being on the applicant to show why his detention in custody is not justified. See Re: Fred Keating [1983] PNGLR 133 and Re: Kou Duo [1984] PNGLR 22.

12. All the applicants filed their individual bail applications and notice of motion on 24 June 2020. They also filed their respective affidavits along with affidavits of 3 common guarantors.

13. Briefly, each applicants’ affidavit says:

(i) Ishmael Allan – he is 21 years old from Autonomous Region of Bougainville and recently completed a short course in Mobile Crane Course from Mapex Training Institution in September 2019. He was detained since 24 March 2020 for the alleged offence. He has been arrested, charged, and now awaits his committal proceeding.

(ii) Edwin Tuokisa – he is 30 years old from East Sepik Province and married with one child. His wife is a Police Officer based in Rabaul Police Station. He attends to Kuragaga Parish in Ward 12 Rabaul LLG and is engaged in community activities. He was detained since 24 March 2020 for the alleged offence. He has been arrested, charged, and now awaits his committal proceeding.

(iii) Monfa Carlos Marus – he is 30 years old, family man and comes from East Sepik Province. He is employed with Kute Shipping Company as a Crew man. He was detained since 24 March 2020 for the alleged offence. He has been arrested, charged, and now awaits his committal proceeding.

(iv) Jackson Wafi – he is 27 years old, comes from East Sepik Province, he is married and resides in Rabaul. He is employed with Agmark Shipping Company as 2^nd Chief officer on MV Buka Trader Company Vessel in Rabaul. He was detained since 24 March 2020 for the alleged offence. He has been arrested, charged and now awaits his committal proceeding. He is on Police bail of K500.00

(v) Gray Eriba – he is 48 years old, and self-employed and comes from Oro Province and married with 3 children and resides with his wife who is a Senior Nursing Officer with Nonga General Hospital, Rabaul. He suffers from a medical condition of arthritis. He annexes his medical report dated 22 June 2020. He was detained since 24 March 2020 for the alleged offence. He has been arrested, charged and now awaits his committal proceeding. He is on Police bail of K500.00.

14. All the applicants say in their affidavits that they are aware of the serious nature of the alleged charge and wish to exercise their Constitutional rights to apply to a bail authority to grant them bail pending their committal matter at the District Court. They say further that they are aware of the bail conditions and are willing to comply with any terms imposed by the Court. They pledged K600.00 each as bail subject to the Court’s discretion. In support of their application, the applicants referred to Haiveta v. State [2000] PNGLR 260 where Kandakasi J (as he was then), discussed in his judgement quoted at page 3:

“I consider the presumption of innocence until proven guilty is an important presumption in favour of an accused person at all times. That is why we have the provisions of s 42(6) of the Constitution coupled with the provisions of the Bail Act. In my view they go hand in hand, because if that was not the case, there would be no right to bail under s 42(6) of the Constitution and the Bail Act.”

15. The applicants also referred to the case of Re-Herman Kagl Diawo (1989) PNG LR. 148 where Kapi J (as he then was) held the right to bail is a constitutional right under s.42(6) and must be given readily unless the interest of justice required otherwise. The Constitution puts the onus on those who oppose bail to show why bail should not be granted. So, the State must show evidence to prove that the particular ground they are relying on under the S.9(1) of the Bail Act exist.

16. The applicants further referred to the recent unreported case of Donald Okole & 2 Others where Justice Manuhu, in March 2020, at Kokopo National Court considered bail application for the applicants and granted bail with strict bail conditions. His Honor imposed the sum of K1000.00 on the applicants to pay. In that case, the accused persons were arrested and charged for an alleged robbery of a Trade Store in Raluana LLG, Kokopo. They made off with the trade store goods, substantial amount of monies, armed with firearms in a large group of accomplices who are still at large. They were allowed bail with strict conditions imposed on them and their guarantors.

17. The applicants further cited State v Nigel Maso N7314, where AJ Miviri (as he then was) said at page 3, [par.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 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”.

The guarantors

18. The applicants have proposed 3 persons of high standing in the community of Rabaul LLG and township area. Briefly, these guarantors are: -

(i) Ray Johnson is the Ward Member of Ward 11 in Rabaul LLG, for three terms. He is aware of the character of each applicant. He has accepted and is will willing to ensure all terms and conditions of the bail authority are followed by the applicants.

(ii) Domitilia Turagau is a Catharcist of Kuragaga Parish in Rabaul LLG, Ward 12, Rabaul District for 15 years. She assists the community with counselling to all members of the congregation and spiritual guidance to those members in need. She is aware of each of the five applicants and has accepted their request to be a guarantor and will comply with all bail conditions set.

(iii) Ben Kavang is a community Member for Ward 9, in Rabaul LLG and is serving his second term as Community Member for Ward 9. He says the applicants are known to him and he has accepted their request for him to be a guarantor and will make sure they comply with any conditions set by the Court.

19. Each of these guarantors have pledged to pay K300 each for each of the applicants.

State’s position

20. In the State’s oral submission, counsel acknowledged the applicants constitutional right to bail, liberty and presumption of innocence until proven guilty. However, the State submitted that there are objections pursuant section 9(1) of the Bail Act and rely on the Information and Summary of Facts which are attached to each applicant’s bail application.

21. Counsel submitted the following grounds of objections:

(i) Section 9(1)(c)(ii) - that there was threat of violence on other person when these applicants allegedly committed the crime.

(ii) Section 9(1)(c)(iii) - the applicants allegedly had in their possession a firearm.

(iii) Section 9(1)(g) – the alleged offence involved property of substantial value that has not been recovered.

22. Counsel also submitted that since the considerations pursuant to section 9 of the Bail Act are not exhaustive, it is in the interest of justice that this Court should consider that a legitimate legal process has been set in motion and the accused be kept in custody until they are proven guilty or otherwise. She submitted that the Court should consider that these matters are still in the committal stages and investigations are still on going. Counsel further argued that the issue regarding the investigating officer’s suspension is an administrative matter for the police to sort out.

23. The State does not have any issues with the nominated guarantors for the applicants. However, it says that the pledge amount should be increased to K500 each whilst the applicants should pay K1000 each to reflect the value of the property stolen which have not been recovered.

24. In conclusion, the State has says that it has received information that the applicant, Edwin Tuokisa is waiting to be taken to Port Moresby as there is a bench warrant issued for him from Waigani National Court for a pending charge of sexual penetration.

Application of facts to the law

25. The applicants are charged for armed robbery, and they can apply for bail as of right pursuant to s.42(6) of the Constitution subject to considerations under s.9 of the Bail Act.

26. The applicants are reasonably young to middle aged individuals between 27 and 48 years old. Whilst Gray Eriba is the eldest of them, he has a medical condition. Edwin Tuokisa, on the other hand is alleged to have a Bench Warrant issued for him from Waigani National Court. From their affidavit, only Gray Eriba and Edwin Tuokisa are married. Interestingly, Edwin Tuokisa’s wife is a police officer in Rabaul. Further, Monfa Carlos Marus and Jackson Wafi are the only ones employed. Except for Edwin Tuokisa, the rest do not have any other record of being in trouble with the law.

27. Counsel for the applicants argued that consideration be given to her clients’ as they have been remanded in the holding cell for more than 3 months without any mention of their cases at the Committal Court. Counsel says that the investigating officer is currently suspended, and it is uncertain as to when he will return to duties. In the meantime, her clients are waiting in suspense as to their fate.

28. On the other hand, the State counsel submitted that the considerations pursuant to section 9 of the Bail Act are not exhaustive and it is in the interest of justice that this Court should consider that a legitimate legal process has been set in motion and the accused be kept in custody until they are proven guilty or otherwise. She submitted that the Court should consider that these matters are still in the committal stages and investigations are still on going. She further submitted that the issue regarding the investigating officer’s suspension is an administrative matter for the police to sort out. Essentially, the State argues that the 3 grounds of objections raised are very serious grounds for consideration.

29. I have also enquired with Waigani National Court registry and was provided with a copy Warrant of Arrest for Edwin Tuokisa dated 6 February 2018 by His Honor, Justice Manuhu. Unless the applicant’s counsel can prove that her client is not the same person, I am not prepared to grant bail to this applicant.

30. For Edwin Wafi and Gray Eriba, from their affidavit materials, the only reason they were given police bail on 24 March 2020 is because of Covid-19 pandemic lock down.

Conclusion

31. Having considered all that has been presented by the applicants and the response by the State, I have taken into account that the offence alleged to have been committed by the applicants do not bar their right to apply for bail.

32. However, I note that the objections raised by the State are very serious grounds for consideration and this Court will not take these lightly. Lives were at stake when the alleged offence was committed, and I am not about to let the accused persons roam free.

33. I accept the State’s submission that it is in the interest of justice that this Court should consider that a legitimate legal process has been set in motion and the accused be kept in custody until they are proven guilty or otherwise. These matters are still in the committal stages and investigations are still on going.

34. For the two applicants who are out on police bail, it is in the interest of justice to keep all of them in custody for investigations purposes and/or for the Committal Court to take its course.

35. For Edwin Tuokisa, it is also in the interest of justice that he is kept in custody pending his bench warrant.

Orders

36. In conclusion I make the following orders:

(1) Bail is refused for applicants Ismael Allan, Edwin Tuokisa and Monfa Carlos Marus.

(2) The Police bail granted to Jackson Wafi and Gray Eriba at K500 each is revoked and shall be refunded.

(3) The applicants shall remain in police custody until the completion of the police investigations and/or hearing at the Committal Court.

(4) The applicants except Edwin Tuokisa are at liberty to reapply for bail at the National Court after the Committal Court.

________________________________________________________________
Public Solicitor: Lawyers for the Applicants
Public Prosecutor: Lawyers for the State