Sanage v State [2023] PGNC 103; N10206 (13 April 2023)

N10206

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA 122 OF 2023

ALFRED SANAGE
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) SC 1530
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 – SC 19,20 of 2016
Francis Potape v State (2015) SC1419

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

Counsel:
C. Boku, for the Applicant
S. Joseph, for the State

RULING

13^th April, 2023

1. DOWA J: This is a bail application by the applicant, Alfred Sanage. 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, Alfred Sanage, is aged 35 years of Mala village, Dei District, Western Highlands Province, currently residing at Bumbu police barracks, Eriku, Lae, Morobe Province. He is married with two (2) children and is employed as a Police Officer.
   
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 filed 29^th March 2023
   2. Affidavit of Alfred Sanage filed 29/03/23.
   100. Affidavit of Guarantor – Meshach Nakayuwi filed 29/03/23.
   4. Affidavit of Guarantor – Peter Wai filed 29/03/23.
   5. Affidavit of David August sworn 10^th and filed 11^th April 2023.
      
7. The State opposes the bail 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 take into account other or further considerations apart from those in section 9 (1) of the Bail Act for a number of reasons including public interest.
       
    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.
       

Grounds for Bail

11. The applicant advanced the following reasons for bail:
    
    1. Innocence
    2. Family needs
       
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.
    

Innocence

14. The applicant says he is innocent of the charge. The applicant is a policeman and is a member of the Foot Beat Unit based in Eriku, Lae City. He was directed by his superior Sergeant David August to escort Levi Wartovo to deliver fuel drums to Bulolo. He travelled to Bulolo on that morning as an escort on official police duties. He did not know that one of the vehicles he escorted had drugs in them. He denies being part of a drug syndicate involved in drug trafficking. His evidence is supported by his superior, Sergeant David August affirming that the applicant is innocent.
    
15. 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 her submissions.
    
16. 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.”

17. I am of the same view that innocence of the charge is not a valid ground for a bail in the light of the serious charge he is charged with.
    

Only Breadwinner

18. The applicant is married and has a child. He says his continued detention will result in the loss of his job and deprive his family from meeting their daily needs. Although this is a genuine concern, it is not a consideration that shows cause that his continued detention is unjustified. Rather it is a natural consequence of being apprehended and charged with a serious Criminal Charge.
    
19. In Philip Maru & Arua Oa -v- State (2001) N2045, the Court said this:

“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".

20. In my view, this ground is not made out.
    

Other Considerations

21. 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.
    
22. 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 are seized by the Australian Federal Police, only about three weeks ago, and the investigation is continuing.
    
23. 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. It is a national security threat, especially where it is not known at this stage the origin of the drugs, whether it was manufactured locally or imported elsewhere.
    
24. 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. It may be that further investigation might result in exonerating the applicant of the charge but for now it is too early to make any determination.
    
25. 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 cause an interference with the investigation currently in progress.
    
26. 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 in the interest of justice.
    
27. The Court is mindful that the applicant is a policeman who has served the people of Papua New Guinea for more than 11 years and has the support of his immediate Superior of his innocence. However, the crime he is charged with is serious involving transnational criminal elements, prominent local business leaders and members of police and defence are alleged to be involved. The Court has a duty to ensure that fairness and justice dictates the exercise of judicial discretion.
    
28. In Felix Kange -v- The State (2016) SC1562, the Court made the following statement at paragraph 14 of the judgment in refusing bail based on social or business standing in community:
    

14. We agree, accept and adopt these views and the principles enunciated therein. Additionally, we are of the view that, if the Courts were to readily grant bail on allegations of the type that was before the Court in the Paul Tiensten case and now before us, that would be seriously counterproductive to having a criminal justice system based on the rule of law and on the principles of all persons being equal before the eyes of the law. A ready grant of bail on the basis of risks of personal harm, injury or death to a well to do prisoner or a remandee, would clearly announce to the world at large that the criminal justice system discriminates on the basis of social status. The more high profile and affluent a prisoner or a remandee is, the lesser the likelihood of loss of liberty than persons lower in status. Effectively, this would encourage more criminal behaviour and/or conduct by the high profile and affluent in society. This would in turn go against one of the most important purposes of criminal sentencing and imprisonment, which is to deter other possible offenders and not to discriminate on the basis of social status. The greatest deterrence comes from appropriate treatment of a person of influence or a person higher up on the social ladder in society whilst the opposite would no doubt be the case if we were to readily let such an offender get out on bail.

29. In adopting and applying the reasoning stated in the above case to the present case, I am not satisfied that the accused should be granted bail. Accordingly, the application for bail is refused.
    

ORDERS

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

__________________________________________________________________
Public Solicitor: Lawyer for the Applicant

Public Prosecutor: Lawyer for the State