Manege v State [2024] PGNC 37; N10673 (1 March 2024)

N10673

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA (APP) NO. 24 OF 2024

SAMSON P. MANEGE
Applicant

V
THE STATE
Respondent

Waigani: Miviri J
2024 : 23^rd February, 1^st March

CRIMINAL LAW – PRACTICE & PROCEDURE – Bail Application – Section 6 Bail Act – Section 42 (6) Constitution – Section 444 (1) (2) & Section 372 (1) (2) (5) (f) (10) CCA – S9 (1) (c) (i) (ii) & (g) Bail Act – Objection to Bail – Guarantors – Self Serving – Status & Standing Not Verified – Guarantee Not Made Out – Serious Offence Admissions to Commission – Money Stolen K 435, 530.00 Outstanding Not fully Recovered – Applicant Admits Received K 11, 000.00 part of Stolen Money – Interest of Justice – Wide Spread Looting Part of – Bail Refused.

Facts

Accused was charged with destroying an ATM Machine and stealing the proceeds within with others. He benefited in the sum of K 11,000.00; K 9000 was recovered off him.

Held

1. No guarantee whilst on Bail.
2. Guarantors insecure standing not verified.
3. Serious violent offence.
4. K 435, 530.00 stolen
5. Admission to the Offence.
6. K 11, 000.00 received of that money.
7. K 9, 000.00 recovered from Accused
8. Interest of Justice not in favour of.
9. Bail Refused Remanded.

Cases Cited
Kysely, Re Bail Application [1980] PNGLR 36
Keating v The State [1983] PNGLR 133
State v Kikala [2023] PGSC 15; SC2355
Walami v State [2021] PGSC 100; SC2182
Maraga v State [2010] PGSC 60; SC1573
Lester v The State [2001] PGNC 148; N2044
State v Paul [1986] PNGLR 97; N537
Diawo, Re [1980] PNGLR 148

Counsel
J. Batil, for the State
K. Akeya, for Applicant

RULING

1^st March 2024

1. MIVIRI J: This is the ruling on an application for bail by Samson Manege 44 years old from Imbongu District, Southern Highlands, resident at Section 234 Allotment 100 Tokarara. He has been charged with section 444 Malicious Injuries general, and section 372 Stealing of the Criminal Code Act.
   
2. His application is made pursuant to the Bail Act Section 6, that bail be granted pending the committal process at the Waigani District Court. He is still going through the process of committal and this application is made pending. It is dated 09^th February 2024 with the information charging him laid of the 22^nd January 2024. It is over an allegation of the 10^th January 2024 at the Waigani Mobil Service Station where He is jointly charged with four others that they on that day unlawfully and wilfully damaged a property, namely a Kina Bank ATM Machine valued at K 83, 367.00, the property of the Kina Bank. The charge is founded on section 444 (1) (2) of the Criminal Code Act.
   
3. The second Information also against him together with four others also dated same, relates to the allegation also of the 10^th January 2024 at that same location where it is alleged, “Did Steal K 435, 530.00 in cash the property of a Banking Institution namely Kina Bank without first obtaining its consent whilst securely contained inside an ATM Machine or safe by using other instruments or objects other than the safe key.” This charge is laid pursuant to section 372 (1) (5) (f) (10) of the Criminal Code Act. Both in aggregate are very serious allegations against the applicant who is accompanied in that offence with others. Some of whom are yet to be apprehended and are at large. A very substantial portion of that money stolen has not been fully recovered and is still at large.
   
4. That is in the back of the mind of the court the fear as to dealing with that money if the applicant is released on bail. And any witnesses relevant must be secured so that the allegation runs the full process of the law. And it is no light matter where there are admissions to the offence by the applicant coupled with the fact that K9,000.00 of that money has been retrieved off him. It is not a conviction but that is where the admission will land in the way it is made here. It is not a question of likelihood but a real and material tendency in the light of the admission to the offence. The probability of securing conviction derived from the admission is real and is there: Kysely, Re Bail Application [1980] PNGLR 36. Given that fact it would be in the interest of Justice to maintain him in jail than grant bail.
   
5. 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. In this regard he relies on and pledges by their respective affidavits, Kari Mara sworn of the 07^th February 2024 filed of the 09^th February 2024, and Kennedy Tope also sworn the same date and filed same.
   
6. Kari Mara is 48 years old comes from Imbongu District Mendi Southern Highlands Province. He resides at section 234, Allotment 100 Dorido Street June Valley National Capital District. The applicant is personally known to him. He is a community Leader and Chief of Ekai Tribe, Maral Village, Imbongu District Southern Highlands. Relevantly these are the basis upon which the applicant invokes the deponent as guarantor in his application.
   
7. In the case of Kennedy Tope is self employed works and lives at Morata 2 section 353 Allotment 179 Kennedy Estate, Seven Mile National Capital District. He has known the applicant for over 15 years as he comes from the Neighbouring village. Applicant works and lives in Port Moresby and is an outspoken member of the Ekai Tribe of Imbongu District Southern Highlands Province. He is willing to pay K500 as surety for the guarantee of the applicant.
   
8. The applicant is also from Imbongu and all three, the applicant and the two guarantors are from the Ekai Tribe. They in this sense are related, each is not independent one from the other, so that there is authority exercised over the applicant should he be granted bail. 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. In my view it is not wrong to insist and go down this path. The Court has done this in the case of application made in reliance of medical conditions by applicants. It has been held that the medical condition of an applicant be confirmed by a doctor before bail is considered and granted: Walami v State [2021] PGSC 100; SC2182 (22 December 2021) and Maraga v State [2010] PGSC 60; SC1573 (20 December 2010). In similar fashion it is not wrong to insist that the contention here, that the guarantor Kari Mara is a community Leader and Chief of Ekai Tribe, Maral Village, Imbongu District Southern Highlands is independently verified and confirmed. There is nothing of that nature relied on by the applicant here. His assertion that he is a leader and chief is self-serving and does not draw further in favour of the application. There is no guarantor sufficient to warrant grant of bail. He fails in this ground.
   
10. He supports his application by his own affidavit of the 09^th February 2024 sworn of the 07^th February 2024. He details his personal particulars as set out above. He had reported for work on that day, 10^th January 2024 at the National Archives office Waigani until 12.00 midday. And he received a mobile call from his blood cousin one Joyce Rami Tepu to quickly attend and assess the situation at the Waigani Mobil Service Station, as she own these properties and he was asked to take photographs of illegal activities on his mobile phone and to protect the property. Joyce Rami Tepu is deputy Secretary, general education services and she owns or is joint owner of the Waigani Mobil Service Station. Applicant went to that service station as instructed and witnessed all the illegal activities that were taking place and tried to control but to no avail. He was unsuccessful and started to record the activities on his mobile phone. He noticed a group of men who were dismantling the ATM Machine belonging to Kina Bank inside the Mini Mart. He took photographs which were taken off him by two policemen who were also inside there. They said they would shoot so he went outside it and was taking photographs of what was happening outside. Later they called him inside took his mobile phone and he walked outside without. In return he was handed K 11, 000.00 of which he spent K 2000 on school fees and K 9000.00 was handed to the Police who arrested him.
    
11. Annexure “A” is his charge sheet and the summary of Facts which is relevant to set out to determine the seriousness of the allegation he is faced with here. “That on Wednesday the 10^th January 2024 between 8.00pm and 9.00pm the Accused Windi Tenden, Samson P. Manage, Nathan Bele, Timo Ilo and Ishmael Tende were inside the Waigani Mobil Service Station, opposite the Waigani Police Station with the company of 20 other men who broke an ATM, the property of Kina Bank and took the money amount of K 435, 530.00.
    
12. It is alleged that on the 10^th day of January 2024, there was an unrest occurred inside the city of Port Moresby. The unrest started at about 11.00am and calmed down after 2 or 3 hours. The first area which the loot started was Waigani Mobil Service Station, but it never fully destroyed, securities quickly reacted and prevented more looting. From there the Mobil Service Station closed their entrance for customers and only employees with guards were inside the premises protecting the area.
    
13. At about 8.00pm to 9.00pm the five accused named with the Company of 20 other accomplices, most of them are the employees of Mobil Service Station, including the Security Guards, as well as two other Policemen (yet to be identified) planned and broke the ATM machine, the property of the Kina Bank. Few of the accomplices of those employees were relatives and friends they brought into the premises to help them protect the perimeter of that Mobil Service Station. The ATM machine they broke, worth K 83, 367.00 was completely destroyed and the safe was opened by a carpenter they brought in with his tools.
    
14. After they broke the safe, they removed the total cash of K 435, 530.00 and shared amongst themselves inside the building within the Waigani Mobil Service Station. From the money they got, they shared K 11, 000.00 each, but few of those men got more than the K 11,000.00 amount which they shared it equally.
    
15. The Accused Willi Tende got K 42, 000.00 from that money they took from the Kina Bank ATM he bought a dark Toyota Camrey bearing registration number BHB 591 for K 32, 000.00. He also used some of that money. But K 5, 600.00 was recovered off him when police were tipped off leading to his arrest. The next Accused, Samson P. Manege confessed to the Police that he was given a share of K 11, 000.00, he used K 2000.00, and K 9,000.00 was given to the Police after they went to his residence and apprehended him. The next accused was Nathan Bele who told police that he was given his share of K 9000.00 he used K 1000.00 and K 8,000.00 was given to Police.
    
16. The next accused Timo Ilo was apprehended at his house at Pari. After few questions he admitted that he was given a share of K 5000.00 of which he used some leaving K 3, 200.00 which he returned to Police when he was apprehended. The other Accused Ishmael Tende was picked up at his home Manu. He confessed that he got K 28, 000.00 from the money they took, and he bought a car from all that money given him. It was a Toyota Premio Sedan registered number BHA 263. It was confiscated by Police driven to the Police Station and suspect was locked up in the cells.
    
17. The next accused Issac Kops heard the news of his accomplices being apprehended and he brought the vehicle that was bought with the money stolen to the police Station left the keys in the ignition and he ran away after texting police that he left the vehicle at the Waigani Police Station. All five (5) suspects were locked up at the Gordons Police Station and Police tried to get some of their accomplices but failed to apprehend them as they heard of police were looking for them.
    
18. On Friday the 19^th day of January 2024 at about 2.00pm they were brought to CID Motor Squad office Boroko and were formally cautioned told of their Constitutional Rights under section 42 (2) of the Constitution and were given two counts each and severely. 1x count of damaging property under section 444 (1) (2) of the CCA, and 1x Count of Stealing under section 372 (1) (5) (f) (10) of the CCA and were locked up in the Boroko Cell. Signed Nick Kola Detective Constable CID Motor Squad.”
    
19. Clearly it depicts deliberate calculated defiance of the rule of law signalling out the role of the applicant. These were part of the groups that were involved in the looting wilfully damaging of properties in and around the city of Port Moresby on that day 10^th January 2024. They paid no heed that as is the case here, the place was public frequented, and it was property that was not of theirs and they all combined. In the case of the applicant, he is an educated person depicted by the Character reference he has sought from one Nogini Miopa Lecturer of the University of Papua New Guinea School of Humanities and Social Sciences Information Management Strand, undated subjected, Character reference for Samson Manenge Paiye. It attests that he is model student but whether he is the same person on that reference is not firm because of the spelling in the name from the information laid by police. The latter spells Samson Manege. This is a bail application and the strict requirement of proof in law is not there by section 9 (2) of that Act. But the fact of the matter is that he has admitted seeing the breaking of the ATM and of receiving the K 11, 000.00 proceeds of that Breaking entering and stealing. K 9000.00 has been recovered of him.
    
20. This fit that it is a crime of violence. And in the way it was perpetrated in full view in broad daylight, it is a serious assault, it is a threat of violence to another person, and involves property of substantial value which is yet to fully recovered and outstanding to be recouped. Against this is the guarantors that the applicant pledges will be surety for his release out. Both Kari Mara who has sworn an affidavit of the 07^th February 2024 filed of the 09^th February 2024, and Kennedy Tope also of that date have no verification of their repute as leaders. It is easy for one to say one is a leader and get an accused out on that basis. It is particularly serious whereas here there is strong evidence of the involvement of the applicant in the offence. He has admitted the offence and K11,000.00 was given him of which K 9,000.00 was recovered off him.
    
21. He says he is a community leader and chief of the Ekai tribe, Maral, village Imbongu District Southern Highlands Province. He is self employed and a businessman and a respected leader at June Valley. These assertions are all self-serving and have no independent verification that he is indeed a community leader and chief of the Ekai Tribe. In my view it is necessary that there is proper guarantee pledged and placed before the Court so that there is responsibility placed on a respectable reputable person of sound standing in the community who will ensure that the applicant can continue to appear in court. And to answer the allegations levelled against him to it being eventually dealt with. He is a person whose reputation credibility and integrity are sound so much so that there is real opportunity of reappearing in the case until it is dealt with in law.
    
22. 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.
    
23. 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).
    
24. Section 42 (6) is given heed to by section 9 of the Act. The applicant must satisfy one or more of the considerations set out by section 9 of the Act. That “BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.
    • (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: –
      

(a) that the person in custody is unlikely to appear at his trial if granted bail;
(b) that the offence with which the person has been charged was committed whilst the person was on bail;
(c) that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of–

(i) a serious assault; or
(ii) a threat of violence to another person; or
(iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive;

(d) that the person is likely to commit an indictable offence if he is not in custody;
(e) it is necessary for the person’s own protection for him to be in custody;
(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings;
(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;
(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;
(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;
(j) that the alleged offence is one of breach of parole.

(2) In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.

(3) For the purposes of Subsection (1)(i), “narcotic drug” has the meaning given to it in the Customs Act 1951.”

25. 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. This ATM owned by the Kina Bank installed at the Mobil Service Station was broken into and all moneys within stolen. The offence it appeared was part of the looting and rioting that was city wide on that day 10^th January 2024. The applicant has made very serious and incriminating admissions which is a matter to be confirmed by defence counsel so that it is disposed of by that fact and not duplicated by this application. The Rule of Law is equal in its application to all. It fell into pieces on the 10^th January 2024 in Port Moresby and persons with evidence linking must face the full force of the law. Duplication by Bail Applications must be avoided the substantive matter addressed if it is an admission as here.
    
26. 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.
    
27. The aggregate is that the application is refused, the applicant remains remanded forthwith.
    

Ordered accordingly.
______________________________________________________________
Public Prosecutor : Lawyer for the State
Ponepai Lawyers : Lawyer for the Defendant