Tupana v State [2023] PGNC 102; N10205 (13 April 2023)

N10205

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA 121 OF 2023

JOSHUA TUPANA
Applicant

V
THE STATE
Respondent

Lae: Dowa J
2023: 31^st March & 12^th & 13^th April

BAIL – application for bail – applicants charged with trafficking-controlled substance under the Controlled Substance Act– grounds of bail – consideration of – balancing personal Constitutional right for bail as against the public interest-grounds of bail failed to show cause that continued detention was unjustified– bail refused - s4 and 9 Bail Act

Cases Cited:
Felix Kange v The State (2016) SC1530
Fred Keating v The State [1983] PNGLR 133
Hayara v State (2008), N3488
Philip Maru & Arua Oa v State (2001) N2077
Theo Yausae v State (2011) SC1112
Esther Ere -v- The State (2018) SC1875
Ati Wobiro -v- The State – (2016) SCAPP 18, 19 & 20 of 2016 (Unreported)
Francis Potape vs State (2015) SC1419

Legislation Cited:
Constitution of Papua New Guinea
Criminal Code Act 1974
Bail Act 1977

Counsel:
S. Toggo, for the Applicant
S. Joseph, for the State

RULING

13^th April, 2023

1. DOWA J: This is a bail application by the applicant, Joshua Tupana. The applicant is charged with one count of Trafficking a Controlled Substance contrary to section 68(1) of the Controlled Substance Act 2021.
   

FACTS

2. The applicant, Joshua Tupana, is aged 33 years of mix parentage of Siroi village, Siwai District, Bougainville and Wakaia village, Wau/Waria District, Morobe Province, currently residing at Value Inn room #130, Eriku, Lae, Morobe Province. He is married with three (3) children and is the Operations Manager of Lamadep Property Protection Ltd.
   
3. It is alleged that on the early morning, of 21^st March 2023, between 4:00 am and 6:00 am, the applicant together with six other co-accused, all named, assisted, and transported 5 x pink duffel bags of controlled substance, namely Methamphetamine into a vehicle, a Toyota Land Cruiser- ten-seater, blue in colour, Reg. No. LBZ 606. The controlled substance was loaded from the premises of a company, KC2 Limited, at Allotment 14 Section 100 Cassowary Road, Lae City. The five (5) bags were then transported to Bulolo Airstrip and loaded them onto a small aircraft, Reg No. P2-BOB.
   
4. Between 3.00 and 4:00 pm, the described Aircraft, P2 BOB was intercepted by Australian Federal Police at a rural airstrip in Central Queensland, Australia. All five (5) duffel bags containing 88 plastic bags with an average content of 600 grams each totalling 52kg of Methamphetamine was confiscated. The monetary value placed on the drugs is 15 million Australian dollars, about K33 million (PNG Kina).
   
5. The applicant and other co-accused were arrested on Friday 24^th March 2023 and charged for the said offence for their role in Papua New Guinea.
   

Evidence

6. The applicant applies for bail under section 42(6) of the Constitution and section 4 of the Bail Act, pending committal hearing. The applicant relies on the following documents:
   
   1. Application for Bail
   2. Affidavit of Joshua Tupana filed 29/03/23.
   100. Affidavit of Guarantor – Thomas Omot filed 29/03/23.
   4. Affidavit of Guarantor – Pr. Josiah Barnabas filed 29/03/23.
      
7. The State opposes the application and relies on the Affidavit of Detective Chief Sergeant Manu Pulei sworn and filed 11^th April 2023.
   

The Law

8. Section 42(6) of the Constitution provides that a person charged with an offence other than wilful murder and treason is entitled to bail unless the interest of justice otherwise requires.
   
9. Section 9 of the Bail Act provides that bail shall not be refused unless the Bailing Authority is satisfied on reasonable grounds as to the existence of one or more of the considerations set out in Section 9(1) of the Bail Act.
   
10. The law and principles to be applied when considering bail on serious charges is settled in the cases: Fred Keating v State (1983) PNGLR 133, Theo Yausase v The State (2011) SC1112, Philip Maru & Arua Oa v State (2001) N2077 and Felix Kange v The State (2016) SC1530. The following considerations apply:
    
    1. The National Court has jurisdiction to hear and grant bail.
       
    2. An applicant charged with an offence other than wilful murder and treason enjoys presumption in favour of grant of bail under section 42(6) of the Constitution.
       
    100. If the State opposes bail, it should establish that one of the circumstances in section 9(1) of the Bail Act apply.
         
    4. If one or more of the circumstances in section 9(1) apply, the Court is not obliged to refuse bail. The Bail Authority still has a discretion whether to grant bail.
       
    5. The Bail Authority can consider other or further considerations including public interest apart from those in section 9 (1) of the Bail Act.
       
    6. The onus is on an applicant to convince the Court with evidence that he has good reasons or sufficient cause that make his continued detention unjustified.
       

Current charge

11. The applicant is charged with a serious charge. It carries a penalty of imprisonment term of 16 years to life or a fine from K26,000.00 to K2,000,000.00.
    
12. The State opposes bail under section 9 (1) (f) and (i) of the Bail Act. Section 9 (1) 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: –

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

...(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;”

13. The applicant has the onus of establishing cause why his continued detention is unjustified.
    

Grounds for Bail

14. The applicant advanced the following reasons for bail:
    
    1. Innocence
    2. Defective charge
    3. Business interests
    4. Family needs
       
15. The State opposes bail under section 9 (1) (f) and (i) of the Bail Act.
    

Innocence

16. Mr. Toggo, counsel for the applicant, submits that the applicant did not know that the goods they were transporting were controlled substance. They were providing a genuine service to Chinese Nationals in the normal course of business.
    
17. Ms. Joseph, counsel for the State, submits a plea of innocence is not a valid ground for bail. She refers to various decisions of the National and Supreme Court including Felix Kange v The State (2016) SC1530, in support of the submissions.
    
18. A proclamation of innocence as a consideration for bail has been rejected in as many National and Supreme Court decisions for being irrelevant. In Felix Kange v The State, the Supreme Court, said this at paragraph 10:
    

“The question of whether the applicant is innocent or guilty is not before the court. If it is clearly established that the applicant has been charged without any proper legal basis that might amount to an exceptional circumstance. The evidence before the Court however discloses that he was initially charged with manslaughter. This has now changed, and his charge has been upgraded to a charge of murder. That is no light matter by any measure that can be ignored. Police investigations have been completed and the committal process is now set to take its normal course. The applicant’s proclamation of his innocence is irrelevant to his bail application and should be rejected. A similar result was arrived at in the case of Dr Theo Yausase v. The State. There Dr. Yausase was charged with wilful murder. Pending his trial in the National Court, he applied for bail. One of the reasons he advanced was his innocence. The Court rejected the proclamation or the applicant’s claim of innocence as irrelevant in a bail application.”

19. I am of the view a proclamation of innocence is not a proper ground of bail, although the applicant is presumed innocent until proven otherwise.
    

Defective Charge

20. Mr. Toggo submits that none of the considerations under section 9 (1) of the Bail Act exist. He argues that subsection (1) (i) does not apply to the charge of trafficking-controlled substance under section 68 (1) of the Controlled Substance Act 2021. Mr. Toggo argues that the Charge Sheet or Information does not specifically spell out which of prescribed acts apply. Mr. Toggo argues further that Methamphetamine is not specifically described as a narcotic drug for the purposes of section 9 (1) ( i ) of the Bail Act.
    
21. The Controlled Substance Act 2021 is recently enacted to respond to need to control and regulate the use of drugs. Section 68 (1) makes it an offence for the trafficking of controlled substance. Section 68(1) reads:
    

“(1) A person who (whether natural or dody corporate) who_

(a)- produces, cultivates, possess on his premises; or

(b) moves, conveys or transports; or

(c) sells, retails, or distributes,

a controlled substance listed in any of the Schedules that is of medium to large marketable quantity or a commercial quantity, with the intention of receiving a financial benefit or any material benefit in kind, is guilty of an offence.”

Section 2 of the Act defines “controlled substance” as a substance, controlled drug, controlled plant or controlled precursor contained in Schedules I, II, III and IV of this Act and any narcotic drug or psychotropic substance listed in the Conventions and amendments, as adopted under Part VII of this Act, and Methamphetamine is one of such controlled substance under Schedule II of the Act. I do not find any defects in the charge. Even if there is a defect, it remains a matter for the Court dealing with the Charge at the appropriate time. It is not a matter for this Court to determine the correctness or otherwise of the charge. In my considered view, Methamphetamine is a psychotropic substance/drug and the consideration under section 9 (1) (i) of the Bail Act apply which gives the Court a discretion to refuse bail where the interest of justice requires.

Only Breadwinner

22. The applicant is married and has three (3) children. He says his continued detention will cause his family members to suffer from meeting their daily needs. Although this is a genuine concern, it is not a consideration that falls under the exceptional circumstances. Rather it is a natural consequence of being apprehended and charged with a serious Criminal Charge. In Philip Maru & Arua Oa -v- State (2001) N2045, the Court said this at page:

“Finally, by way of a final comment, I repeat the comments I made in John Raikos v. The State (supra) in relation to the arguments centred around family difficulties and needs at page 4:

...the grounds advance are factors that should have been consider well before the offence was committed, if indeed, the applicant was involved in the commission of the offence. I hold the view that such factors should not form the basis to grant bail. This is because the kinds of difficulties and hardships advanced are the natural consequence of committing a crime at the first placed. In holding that view, I am also mindful of the fact that an accused person remains innocent until proven guilty according to law. At the same time I am mindful of the fact that a legitimate process also provided for by the Constitution as been set in motion. There must therefore, be a presumption that the applicant has been charged and detained on some proper basis. I believe that is why the Bail Act as been enacted with the provisions of s.9 in it".

23. I am not satisfied that this is a good ground for granting bail.
    

Closure of Business

24. The applicant is the Operations Manager for Lamadep Property Protection Ltd. Counsel for the applicant submits that his continued detention will affect the running, management of his companies and business. As a result, the businesses and its employees will suffer.
    
25. The State opposes bail because public interest demands that bail be refused as there is insufficient evidence to show any rare circumstance where personal interest can override public interest demand.
    
26. The Court can take notice of the fact that the applicant is a business manager and has employees who are likely to suffer. However, in my view, the applicant has himself to be blamed. The facts forming part of the Statement of Charge shows he placed himself in the wrong place to end up being charged with a serious charge. Jeopardising his business leadership and that of his employer’s business and employees is a direct consequence of being charged with serious offence. It is not a sufficient cause which justify grant of bail. This view is repeatedly echoed in many National and Supreme Court cases: Hayara -v- The State (2008), N3488), Philip Maru & Arua Oa -v- The State (2001) N2077, Theo Yausase -v- The State (2011), and In Re Bail Application by Hombi (2010) N4080.
    

In my view, this ground is not made out.

Other Considerations

27. The applicant is charged with a very serious charge, under section 68(1) of the Controlled Substance Act 2021. The facts on the charge Sheet shows the accused assisted in transporting 52kg of Methamphetamine a controlled substance pursuant to section 20 of Controlled Substance Act. It is a controlled substance that has the potential to be harmful to humans. It falls under Schedule 11 of the Act. It carries a minimum penalty of imprisonment term of 16 years to life or a fine up to two million kina or both.
    
28. The applicant is charged with six (6) others who are in custody, and it involves both national and foreign citizens. The quantity of the controlled substance is 52kg and is valued at K33 million. The drugs were seized by the Australian Federal Police, only about three weeks ago, and the investigation is continuing.
    
29. Although the exhibits and other evidence is yet to be presented, by virtue of section 9(2) of the Bail Act, I accept the evidence from Detective Chief Sergeant Manu Pulei that it is a serious case of drug trafficking or Trafficking of Control Substance; involving transnational criminal elements and is a security threat to our national sovereignty especially where it is not known at this stage the origin of the drugs, whether it was manufactured locally or imported elsewhere.
    
30. I note, the investigation is continuing, and it is possible that an early release of the accused is likely to interfere with potential witnesses. I accept that the police have three (3) months to complete their investigations, especially to provide hand-up briefs in the District Court.
    
31. For now, I am persuaded by the submissions of the State that they have successfully established considerations (f) and (i) of section 9 (1) of the Bail Act which gives the discretion to the Court to refuse bail. The charge is serious involving trafficking a large quantity of Methamphetamine, a harmful drug, be it narcotic or psychotropic. The investigations are continuing, and an early grant of bail is likely to interfere with the investigation currently in progress.
    
32. As I said earlier in the case Levi Wartovo v The State, the Court has a duty to the public interest, as well as that of the individual accused person. Weighing public interest against the personal rights of the accused under section 42(6) of the Constitution, it is the public interest that demands that bail be refused where the interest of justice requires.
    
33. The application for bail will therefore be refused.
    

ORDERS

34. The Court orders that the application for bail is refused.

__________________________________________________________________
Daniels & Associate Lawyers: Lawyer for the Applicant

Public Prosecutor: Lawyer for the State