N10798
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA (APP) No. 136 OF 2024

BAIGA BAZURE
Applicant

V

THE STATE
Respondent

Kokopo: Miviri J
2024	: 08th & 9th May

CRIMINAL LAW – PRACTISE & PROCEEDURE – Bail Application – Section 6 Bail Act – Section 42 (6) Constitution – Section 386 CCA – S9 (1) (c) (i) (ii) & (g) Bail Act – Objection to Bail – Guarantors – Self Serving – Status & Standing Not Verified – Guarantee Not Made Out – Phone Stolen Outstanding Not Recovered – Interest of Justice – Bail Refused.

Facts
Accused was part of a group of men who lured the victim away from the main town area to a secluded area where they robbed him of his personal properties and a phone.

Held   
1.	No guarantee whilst on Bail.
2.	Guarantors insecure standing not verified.
3.	Serious violent offence.
4.	Interest of Justice not in favour of.
5.	Bail Refused Remanded.

Cases Cited.
State v Kikala [2023] PGSC 15; SC2355
Keating v The State [1983] PNGLR 133
Lester v The State [2001] PGNC 148; N2044
State v Paul [1986] PNGLR 97
Diawo, Re [1980] PNGLR 148

Counsel:
J. Sausoruo, for the State
J. Huekwahin, for Applicant

RULING

09th May 2024

1.	MIVIRI J: This is the ruling on an application for bail by Baiga Bazure of Rainau under section 6 Bail Act and section 42 of the Constitution. 

2.	Section 6 mandates this application for bail to be made as he does. He is presently in custody at the Kokopo Police Station charged on information that he committed armed robbery pursuant to section 386 Aggravated Armed Robbery of the Criminal Code Act. He relies on section 42 (6) of the Constitution to make this application for bail. He is still going through the committal process.

3.	The information that has been laid against him dated the 26th March 2024 alleges that on the 29th August 2023 at Vunamami Ward 1 Kokopo Vunamami LLG in Kokopo Papua New Guinea, Baika Bazure aged 25 of Rainau Village, Kokopo District, East New Britain Province Whilst in the company of two (2) other persons, by using actual violence namely unlawful assault and threatening, stole 1x Nokia C21 Plus brand mobile phone valued at K 620.00 and 1x Anko brand portable charger valued at K 105.00 all total value at K 725.00 the property of Paul Judas while armed with an offensive weapon namely a bush knife. Thereby contravening section 386 (1) (2) (a)(b)(c) of the Criminal Code Act in conjunction with section 7 of the same Act.

4.	The facts that give rise set out in the back allege, that on the 29th August 2023, between 8.00am and 9.00am, this Accused before the Court Baika Bazure conspired with two other suspects namely Jack Malachi and Fabian Bazure lured the victim from Kokopo city Mart to Vunamami Ward 1 in Kokopo, and they threatened and robbed him of his properties. The accused planned with Jack Malachi and Fabian Bazure who lured the victim Paul Judas on the pretext that there were betel nut bags up from the road leading him to a church where the Accused applicant Baika Bazure was. The Accused appeared confronting the victim Paul Judas and asked him for his mobile phone. When he told him that he had left his mobile phone in the vehicle, Accused searched him and pulled out his phone a grey Nokia C21 plus smart phone with his Anko portable charger. It was worth K 620.00 and the portable Charger was K 105.00 altogether K 725.00 all the properties of Paul Judas. Accused also threatened to cut the victim with the bush knife that he had forcing the victim to unlock his phone and after which the accused and accomplices got it and ran away.

5.	This is armed robbery pursuant to section 386 (1) (2) (a) (b) (c) of the Criminal Code for which the applicant was charged with and placed in custody at the Kokopo Police Station Cell from which he is making this application for bail. He is still in the committal process a decision yet to be made whether he is committed to stand trial or not. His reason for making the application for bail is that he is married with a child, and he is the only one working and looking after his family. He proposes as bail condition that he will pay K 500 which he has now altered to state K 1000. And he has proposed guarantors named as John Rais his uncle a Village Court peace Officer with Mobile telephone number supplied in each case. Guarantor number two he proposes is one Pastor Joe Waukau of the PNG Revival Centres with mobile number also supplied by an uncle.

6.	These guarantors are his uncle’s whose names he has filled out in a bail application form. Both men have not independently verified that indeed they pledge support for the application for bail of the applicant as independent guarantors in support of that application. There must be and ought to be independent verifications that they are not just names that have been filled out in a bail application form. But that it is they who know that the application is being made and they are the guarantors independently of the applicant to that application. It is one thing to fill out names of proposed guarantors, it is another thing to have those guarantors independently verify that they are the guarantors of the applicant in his bail application. The reason is simple, this is a guarantee that the applicant whilst on bail will not abscond, and that he will make appearance in Court for the matter until it is duly dealt with in law. As guarantors they know their responsibility to this cause in law. And will stand by their promise to ensure. 

7.	In my view that is lacking here. I do not view and hold the guarantors pledged as genuine unless and until independently verified, they remain just mere names filled out in a bail form. And the offence charged is a crime of violence and fits what is set out by section 9 (1)(c) of the Bail Act. There is assault and threat of violence against Paul Judas with an offensive weapon a bush knife. And his mobile phone is stolen with his charger by the applicant.  The guarantors cannot be Uncles of the applicant. They are family and are there. Independent persons not relations will be guarantors as family will naturally be clouded by emotional ties within. And may not stand up well should there be absconding of the applicant.

8.	In my view it is important to have independent guarantors who have standing and reputation in the Community. The reason is simple the applicant can be easily located. If not by himself with the help of the guarantor who is a man of repute and standing in the Community. And if there is a failure the guarantors are liable for making sure the applicant returns and can be easily located. They are leaders or persons of repute and standing in the community to make this happen: State v Kikala [2023] PGSC 15; SC2355 (22 February 2023). When there is a breach in bail it is a simple matter to get the guarantors to secure the attendance of the applicant.

9.	Given these facts, it is upon him to show that the material consideration to grant or refuse bail are in his favour, he has discharged the requirements of section 9 of the Bail Act: Keating v The State [1983] PNGLR 133. The Court will exercise the discretion to grant his application if he satisfies and discharges in particular section 9 (1) (a) (f) (g) of the Bail Act. For one he is unlikely to appear at his trial. For the reasons set out above this application does not bear the necessary guarantee by the guarantors pledged that this application be granted.

10.	Bail is a right coming with obligations upon both the applicant and the Court. “I do not believe that it was intended that bail should be granted without regard to the question of whether or not the applicant for bail will ever answer bail until excused by the Court in the due course of time and process. Indeed, s. 9 of the Bail Act does have provisions relating to that issue. The practice of calling for guarantors and people giving guarantees and undertakings to ensure bail conditions being met seem is in line with that. Yet those who have been giving such guarantees and undertakings have not been serious with their undertakings and or guarantees perhaps because of the penalty or the consequences they stand to face appear not to be serious. It is high time now for cash bails and sureties to be increased upward to the thousands to give some seriousness and importance to the need to meet bail conditions. If most other jurisdictions impose such higher conditions, I see no reason why the level of cash bails and sureties should not be increased in our jurisdiction to either eradicate or minimized the number of bail jumpers.

11.	I do appreciate that some may argue that imposing such terms may in effect amount to a refusal of bail because of inability of offenders to raise the amounts required and therefore a breach of the Constitutional right to bail. Such an argument has to be view in the overall interest of the society and serious negative impacts crime in general is having on our society. One should also need to consider the large number of people breaching bail terms after the police have done their best in apprehending offenders and bringing them before the courts. Granting bails without any regard to the difficulties and expenses the society through the police go through to bring offenders to the Courts would amount to injustice to society for the sake of an offender. The courts are required to administer justice and it behoves the courts to consider and take such issues into account before granting bails in the interest of justice not only from the perspective of an offender but also the society, which are not necessarily the same, Lester v The State [2001] PGNC 148; N2044 (22 January 2001).

12.	And there is no evidence filed by the applicant that refutes what is set out by section 9 (1) (a) (f) (g) of the Bail Act, and the evidence supporting here. And this view is supported by State v Paul [1986] PNGLR 97 where bail was refused because of section 9 (1) (c) (i) (ii) (iii) of the Bail Act. Further the interest of Justice was not served that the Applicant be granted bail because of the significance of the offence. There it involved the stealing of arms from the Police Station Armory. Here in my view the gravity of the offence itself is more than enough in the interests of justice that bail be not granted. 

13.	I am not swayed and nor satisfied that “there are substantial grounds for believing that one or more of the matters 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,” In Re—Fred Keating [(supra). In my view the applicant’s application has no basis to be granted. And the interests of society also to deal with offenders once before the courts and therefore stricter and higher terms maybe imposed, Lester (supra). This is not warranted given the discussion set out above. That the Court must also be conscious of the Bench Warrant list which must be addressed by properly in the screening of applications for bail. Allowing bail must be based on surety, “Likely” that appearance is guaranteed Diawo, Re [1980] PNGLR 148. It is an exercise that will not defeat Justice. 

14.	The aggregate is that the application is refused, the applicant remains remanded forthwith.

Ordered accordingly. 
______________________________________________________________
Office of the Public Prosecutor	: Lawyer for the State		
Office of the Public Solicitor	: Lawyer for the Defendant