Wartovo v State [2023] PGNC 96; N10204 (31 March 2023)

N10204

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA 116 OF 2023

LEVI WARTOVO
Applicant

V

THE STATE
Defendant

Lae: Dowa J
2023: 31^st March

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:

Ati Wobiro -v- The State – SC 19,20 of 2016
Esther Ere -v- The State (2018) SC1875
Francis Potape vs State (2015) SC1419
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

Legislation Cited:

Constitution of Papua New Guinea
Criminal Code Act 1974
Bail Act 1977

Counsel:

J. Kusip, for the Applicant
S. Joseph, for the State

RULING

31^st March, 2023

1. DOWA J: This is a bail application by the applicant, Levi Wartovo. 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, Levi Wartovo, is aged 39 years of Kuimba village, Wau/Waria District, Morobe Province, currently residing at Gurney Street, Eriku, Lae, Morobe Province. He is married with six (6) children and is the Managing Director 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 Levi Wartovo filed 28/03/23.
   100. Affidavit of Levi Wartovo filed 28/03/23.
   4. Affidavit of Guarantor – Steven Kesno filed 28/03/23.
   5. Supplementary Affidavit of Levi Wartovo
   6. Amended Notice of Motion filed 30/03/23.
      
7. The State opposes the application and relies on the Affidavit of Detective Chief Sergeant Manu Pulei sworn and filed 30^th March 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 vs State (1983) PNGLR 133, Theo Yausase vs The State (2011) SC1112, Philip Maru & Arua Oa v State (2001) N2077 and Felix Kange vs 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. Medical Condition
    2. Business interests
    3. Family needs
       

Medical Grounds

12. The accused says he has health issues, and his continued detention will affect his health and life. He relies on two medical reports: one from Dr Singery S of Flores Hospital and the second from Dr. Bunare Bun of Eskapu Medical Services. The reports attest that the accused is an asthmatic patient and suffers from arthritis. They recommend that the applicant stays away from crowded rooms and confined areas. Mr. Kusip, counsel for the applicant, therefore, submits that the applicant’s life is in real danger if he continues to remain in an overcrowding and confined area at the Buimo jail. He needs to be placed on Nebuliser whenever asthma attacks.
    
13. Ms. Joseph, counsel for the State, opposes the application, submitting that the medical reports provided do not show or establish the applicant’s medical condition as life threatening. She also submits that the health issues complained of by the applicant can be easily attended to by the Correctional Service Officers as part of their statutory duties pursuant to sections 7, 13 and 67 or the Correctional Service Act.
    
14. The Supreme Court has settled this issue in Francis Potape vs State (2015) SC1419 that the welfare of a detainee or prisoner, is a matter for the Correctional Institution and the Goal Commander to attend to by virtue of sections 7, 13 and 67 of the Correctional Services Act 1995. There is no evidence from the Officer in Charge of the clinic at Buimo concerning the health condition of the applicant. There is no evidence from the Jail Commander attesting to the special health needs of the accused.
    
15. The Supreme Court in Esther Ere -v- The State (2018) SC1875 and Ati Wobiro -v- The State (2016)-SC 18 of 2016, the Court held that the medical condition of a prisoner may constitute an exceptional circumstance justifying the grant of bail but only if the condition of a prisoner is life-threatening and the continued detention would seriously endanger the health and life of the prisoner.
    
16. The medical reports provided show that the condition of the applicant can be sustained by taking the necessary treatment and tablets. He has been warned not to take meat or protein, and these are matters that the CIS officers can easily attend to as part of the administrative duty taking care of the health and well-being of the applicant. The applicant has not demonstrated he was denied medical assistance by the CIS officers. On the medical evidence provided, I am not satisfied that the applicant is suffering from a health condition that is life threatening.
    

Only Breadwinner

17. The applicant is married and has six (6) children. He says his continued detention will deprive them 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".

18. Similar sentiments are expressed in the cases Felix Kange -v- The State (2016) SC 1530- and Tamara Tomscoll -v- The State (2012) SC1208. In Tomscoll, the Court said this when determining an appeal on sentence:
    

“44. In relation to the plea for Tamara's own and that of her children and her families' needs, we do sympathize with her, her children and family. However, these can have no consequence on the sentence she should receive as an offender. Indeed numerous cases say that an offender should think of the possible consequences that could flow against themselves and their family, friends and or business on account of their choosing to commit a crime before committing it. After the commission of an offence, it is a little too late to plead personal or family needs.”

19. The above comments were made in respect of sentence but are of equal application in bail consideration. I am not satisfied that this is a good ground for granting bail.
    

Closure of Business

20. The applicant is a businessman. He owns several companies including Lamadep Property Protection Ltd. He is the Managing Director and is said to employ 300 employees. 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. Mr. Kusip submits that technical rules of evidence do not apply by virtue of section 9(2) of the Bail Act, and has urged the Court to take notice of the likely loss of business and employment of many employees.
    
21. 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.
    
22. The Court can take notice of the fact that the applicant is a businessman 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 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) SC1112, and In Re Bail Application by Hombi (2010) N4080.
    

In my view, this ground is not made out.

Other Considerations

23. 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.
    
24. 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 a week ago, and the investigation is continuing.
    
25. 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:, especially where it is not known at this stage the origin of the drugs, whether it was manufactured locally or imported elsewhere.
    
26. 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.
    
27. 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 narcotic drug. The investigations are continuing, and an early grant of bail is likely to interference with the investigation currently in progress.
    
28. 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.
    
29. The Court is mindful that the applicant is a businessman and has many workers serving the various business entities. In Felix Kange -v- The State (2016) SC1562, the Court made the following statement at paragraph 14 of the judgement 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.
        
30. 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 be refused.
    

ORDERS

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

_________________________________________________________________
Kusip Lawyers: Lawyer for the Applicant

Public Prosecutor: Lawyer for the State