Wani v State [2021] PGNC 403; N9076 (20 May 2021)

N9076

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

IN THE MATTER OF BAIL APPLICATION

CR (APP) 136 OF 2021

BETWEEN:
OWEN WANI

AND
THE STATE

CR (APP) 138 OF 2021

BETWEEN:
ROGER AROS

AND:
THE STATE

Vanimo: Rei, AJ
2021: 18^th & 20^th May

PRACTICE AND PROCEDURE – Criminal Law – Armed Robbery, Bail Application - Relatives as Guarantors - Insufficient evidence to warrant bail - Application is refused

Cases Cited:

Fred Keating -v- The State [1983] PNGLR 133
Living Stone – Thomas -v- Association [1969] 90 WN (NSW) 23
Paul Lois Kysely -v- The State [1980] PNGLR 36
Jethro Paine Benny -v- The State Berrigan J 14^th& 17^th May 2021

Legislations Cited:

Criminal Code Act
Bail Act 1997

Counsel

Mr. P Moses, for the Applicants
Ms. L Jack, for the State

20^th May, 2021

1. REI AJ: BACKGROUND: The applicants: Owen Wani and Roger Aros were both charged with the offence of armed robbery under Section 386(2)(a)(b) of the Criminal Code Act.
   
2. The Information and Statement of Facts were annexed to the information’s of both applicants as Annexure “A” & “B” respectively.
   
3. Both applicants filed an Application for Bail on 4^th May 2021 and 12^th May 2021 seeking to be admitted to bail whilst awaiting the trial of the matters.
   
4. Both Owen Wani and Roger Aros were present in Court when their applications for bail were made by Mr. Paul Moses of the Public Solicitor’s Office.
   
5. The facts are that both applicants were allegedly involved in an armed robbery which occurred on the 11^th September, 2019.
   

SUBMISSIONS BY THE APPLICANTS

6. Submissions were made by Mr. Moses seeking that both applicants be granted bail despite of the provisions of Section 9 of the Bail Act which summarily provide that bail must be refused if under Section 9(c)(iii), it is alleged that the applicants were in “possession of firearm, imitation of firearm, other offensive weapon or explosive” at the time the alleged crime was committed.

7. Submissions were also made that because of the overcrowding situation in the CIS goal compound and of the spread of the pandemic corona virus and for the safety of other prisoners, they both should be admitted to bail.

8. Miss Jack of the Public Prosecutor’s Office opposed the applications on the grounds that there is no evidence before the Court that the applicants have been infected with corona virus and secondly both accused persons are not residents in Vanimo. They are permanent residents of Lae as such there is a great likelihood of them absconding bail. Furthermore, they were both armed when they committed the offence.

RULING

9. I have read the affidavit of Owen Wani filed on 4^th May 2021 together with the affidavits of the two (2) guarantors.

10. I have also read the affidavit of Roger Aros filed on 12^th May 2021 together with the affidavits of the two guarantors.

11. I am not convinced from the submissions made by the Applicants Counsel that both applicants will appear at the trial of the matter and they will not abscond bail. The applicant Owen Wani and applicant Roger Aros are not resident in Vanimo. Owen Wani is resident in Lae. Roger Aros is resident in Wewak.

12. Whilst the guarantors have strongly suggested, that; if granted bail, they will ensure both applicants will appear for trial. I have serious doubt that they will.

13. Such undertaking should only be relied upon in a bail application where it is clear that the applicant(s) comes from the local area where the crime was alleged to have been committed and are permanent residents. It is not the case here.

14. The applicant Owen Wani has his establishments in Lae, Morobe Province and Roger Aros is resident at Wewak. They are both not resident in Vanimo.

15. In case of Application for Bail pursuant to s13(2) Bail Act 1977; Fred Keating -v- The State [1983] PNGLR 133, Kidu CJ & Andrew J also said that:

“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 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 interests of justice. This may involve considerations other than the criterial for refusing bail as established in this section].”

16. In line with the above authority, and in the interest of justice, it is my opinion that, although this case does not involve wilful murder or treason for which bail may not be readily available by reason of S.9 (i) of the Bail Act, I consider that the likelihood of the accused person not appearing for trial or absconding bail is reason for which bail should be refused.

17. I consider that the applicants evidence filed by the guarantors in both cases do not convince me that they will ensure that the two (2) accused persons will comply with all bail conditions to be imposed. The word “likelihood” has been discussed in the case of Living Stone Thomas -v- Association [1969] 90 WN (NSW) 23 and the application for Bail by Paul Louis Kysely [1980] PNGLR 36.

18. They also say that because of the imminent spread of corona virus in the prison camp, they will be allowed bail.

19. In the case of Edmund Gordon Kairu -v- The State, a decision which I recently handed down, I quoted the recent decision of Barrigan J in Jethro Paine Benny -v- The State Berrigan J dated 14^th& 17^th May 2021, in which she said:

“Finally, the applicant contends that he is concerned that if there is outbreak of covid in detention all inmates will be infected because of social distancing is poor. I accept the risk of contracting covid whilst in detention is an increased risk, but this must be balanced against all the circumstances of the case, in particular the nature and seriousness of the alleged offence and s.9 considers the risk of covid alone cannot constitute on exceptional basis warranting bail. If that was the case then all inmates, regardless of the seriousness of their alleged offence and other considerations would be entitled to bail”.

20. In the circumstances, I order that bail is refused for both Owen Wani and Roger Aros in the following terms:

(i) The application for bail by Owen Wani is refused
(ii) The application for bail by Roger Aros is refused
(iii) Both applicants are at liberty to reapply
(iv) Both applicants be remanded in custody.

______________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State