Terupo v Independent State of Papua New Guinea [2021] PGSC 88; SC2161 (1 October 2021)

SC2161

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP NO.4 OF 2021

IN THE MATTER OF AN APPLICATION FOR BAIL PURSUANT TO CONSTITUTION, SECTION 42(6) AND
BAIL ACT, SECTIONS 6 AND 13(2)

BETWEEN:
DOMINIC TERUPO
Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: David J, Liosi J & Gora J
2021: 29^th September & 1^st October

BAIL - application for bail to Supreme Court after refusal by National Court – constitutional right to bail unless interests of justice otherwise require – bail refused - Constitution, Section 42(6), Bail Act, Sections 3, 6, 9 and 13(2).

Cases Cited:

Re Application for Bail by Paul Lois Kysely [1980] PNGLR 36
Re Herman Kagl Diawo (1980) PNGLR 148
Fred Keating v The State [1983] PNGLR 133
The State v Beko Job Paul [1986] PNGLR 97
Malaki Kongo & Joe Akusi v The State (1996) N1544
Triga Kakarabo v The State (1999) N1891
Philip Maru and Arua Oa v The State (2001) N2045
Martin Aibel v The State (2009) N3636
Re Boram Correctional Institution; Bernard Uriap v The State (2009) N3822
Joe Apau v The State (2010) N4073
Re Bail Application by Alphonse Silas Hombi (2010) N4080
Dr. Theo Yasause v The State (2011) SC1112
Ere v The State (2018) SC1875

Counsel:

Bernard Popeu, for the Applicant
Nathan Pare, for the Respondent

RULING

1^st October, 2021

1. BY THE COURT: INTRODUCTION: This is the ruling of the Court on an application for bail filed by the applicant, Dominic Terupo on 27 July 2021 which has been brought before the Court pursuant to Section 13(2) of the Bail Act as a fresh application.

2. Section 13(2) states:

“Where a person is refused bail by a Judge of the National Court he is entitled to apply for bail, immediately if he so desires, to the Supreme Court.”

3. On 29 December 2020, the applicant applied for bail to the National Court. Justice Cannings refused bail upon being satisfied that considerations under Section 9(1)(f) and (i) of the Bail Act were present, namely; the applicant was likely to interfere with witnesses or the person who instituted the proceedings; and the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal or medical use under prescription of the applicant. The applicant is currently remanded in custody at the Bomana Correctional Institution while awaiting completion of committal proceedings conducted in the District Court.

LEGAL ISSUE FOR DETERMINATION

4. The central issue for determination is whether or not the applicant should be admitted to bail.

EVIDENCE

5. The applicant relies on the affidavits of; himself sworn on 26 July 2021 and filed on 27 July 2021; Father Reginald Makele sworn on 26 July 2021 and filed on 27 July 2021; Josephine Aniong sworn on 26 July 2021 and filed on 27 July 2021; and of Bernard Popeu sworn on 27 September 2021 and filed on 28 September 2021.

6. The respondent, The Independent State of Papua New Guinea relies on the affidavit of Yelly Oiufa sworn on 25 August 2021.

POSIITON OF THE RESPONDENT

7. The respondent opposes the application.

CHARGE

8. The applicant and his co-accused namely, Morgan Mogu (Mogu) and Shane Dikana (Dikana), all nationals, are jointly charged with one count of the offence of money laundering, i.e., dealing with property that is criminal property contrary to Section 508B(1) and (3)(a) of the Criminal Code (as amended). The charge is preferred in an Information laid by Sergeant of Police, Anthony Sevese Junior on 4 September 2020, a copy of which is annexed to the applicant’s own affidavit and marked as annexure “A1”. The penalty for the offence is a fine not exceeding K500,000.00 or imprisonment for a term of not exceeding twenty-five years or both.

SUMMARY OF FACTS

9. The allegations made against the applicant and his co-accused are contained in the Summary of Facts filed in support of the Information. A copy of the Summary of Facts is annexed to the applicant’s affidavit and is marked as annexure “A2”. On an unknown date between 31 January 2020 and 1 August 2020, the applicant and his co-accused, did each and severally conceal property namely 611 kg of cocaine contained in 28 bags with an estimated total value of PGK200,000,000.00 (AUD$80,000,000.00) that they ought to have reasonably known was criminal property at Allotment 5 Section 105 Lapwing Drive, Gordon’s, Port Moresby in the National Capital District, a property rented by Mogu and the applicant. It is alleged that the applicant and his co-accused colluded with Carlo D’Attanasio (D’Attanasio), an Italian and master of a pleasure yacht called “BADU”, David John Cutmore (Cutmore), an Australian from Melbourne and other members of a syndicate based in Melbourne, Australia to smuggle the criminal property from Papua New Guinea to Australia. The criminal property was later moved to Papa-Lealea village by transport (three Toyota Land Cruisers) organised by Dikana through his mother. On Sunday, 26 July 2020, at about 12:15 pm, Cutmore flew into Papua New Guinea in a Cessna 402C twin engine light aircraft bearing registration VH-TSI (the aircraft) from Mareeba Airport, Cairns, Queensland, Australia and landed on a makeshift airfield constructed on land known as Mokeke on the outskirts of Papa-Lealea village. The aircraft was re-fueled and the 28 bags of criminal property were loaded onto the aircraft. In its attempt to fly out, the aircraft crashed at the end of the runway. Cutmore was rescued by his accomplices and the criminal property was unloaded and concealed in a secluded location within mangroves at Papa-Lealea village. Cutmore surrendered at the Australian High Commission two days later. Mogu, Dikana and the applicant were apprehended later and assisted police to recover the criminal property from the secluded location at Papa-Lealea village.

GROUNDS OF APPLICATION

10. The applicant relies on four grounds for a grant of bail and these are:

1. Dikana was granted bail so he should also be granted bail based on the parity principle;
2. He has a dislocated shoulder which needs to be treated outside of the Correctional Institution at Bomana given the lack of medical attention given to his condition by heath workers there;
3. There is no evidence to demonstrate that he is likely to interfere with any prosecution witness or the person who instituted the proceedings; and
4. The entire criminal property has been shipped to Australia and is now within the possession and jurisdiction of the Australian police.
   

SUBMISSIONS

11. Mr Popeu for the applicant contends that the applicant is entitled to his constitutional right to bail guaranteed by Section 42(6) of the Constitution as he is charged with an offence other than treason or wilful murder unless the interests of justice otherwise require.

12 In addition, Mr. Popeu argues that the applicant should be admitted to bail as:

1. It was only fair and there was a legitimate expectation on the part of the applicant to be granted bail applying the parity principle because Dikana was granted bail.
2. The applicant’s medical condition involving a dislocated shoulder and the lack of medical attention accorded to him by health workers within the Correctional Institution at Bomana warranted outside medical assistance.
3. There was no likelihood of the applicant interfering with any prosecution witness or the person who instituted the proceedings as he did not know who they were.
4. It was common knowledge that the entire criminal property has been taken over by the Australian police and has been shipped to Australia rendering nugatory the application of Section 9(1)(g) of the Bail Act.
   

13. Mr. Popeu concedes that the consideration under Section 9(1)(i) is present in this instance, but it did not follow that the Court should automatically refuse bail given the Court always has a wide and unfettered discretion to grant bail.

14. Mr. Pare for the respondent submits that the application should be refused as:

1. The grant of bail to Dikana has no relevance given this was a fresh application;
2. The applicant’s medical condition was not life-threatening; his continued detention would not pose any serious risk to his health and life; and there was no evidence regarding him being denied access to health services by the Bomana Correctional Institution contrary to the evidence of Inspector Gibson Darius, Community Health Worker.
3. There was a possibility of interference with prosecution witnesses or the person who instituted the proceedings given the gravity of the offence and the circumstances surrounding the commission of the alleged offence.
4. All grounds relied on by the applicant in the applicant’s written and oral submissions and those not mentioned, but contained in the applicant’s own affidavit have no merit.
   

LAW

15. Section 3 of the Bail Act gives effect to Section 42(6) of the Constitution which provides that a person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require: Re Application for Bail by Paul Lois Kysely [1980] PNGLR 36; Re Herman Kagl Diawa [1980] PNGLR 148; Fred Keating v The State [1983] PNGLR 133.

16. The Bail Act is a complete code that deals with the grant or refusal of bail. In Fred Keating v The State [1983] PNGLR 133, Kidu, CJ and Andrew, J stated:

“When considering the grant or refusal of bail in cases other than wilful murder or treason, the courts and other bail authorities are to be guided generally by s.9. But whilst the Bail Act is a complete code in dealing with the grant or refusal of bail, by s.3, in matters other than wilful murder or treason, the bail authority may still have to consider the question of the interests of justice. This may involve considerations other than the criteria for refusing bail as established in this section.”

17. When deciding whether to grant bail or not in cases other than wilful murder or treason, the courts and other bail authorities are to be guided generally by Section 9 of the Bail Act which states:

“9. 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; or

(b) that the offence with which the person has been charged was committed whilst the person was on bail; or

(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; or

(d) that the person is likely to commit an indictable offence if he is not in custody; or

(e) it is necessary for the person's own protection for him to be in custody; or

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

(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; or

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act against the person in custody; or

(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; or

(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.”

18. It is a settled principle of law that the grant or refusal of bail under Section 9 of the Bail Act is discretionary in all cases: Fred Keating v The State [1983] PNGLR 133.

19. A useful summary of the law governing bail was given by Kandakasi J (as he then was) in Philip Maru and Arua Oa v The State (2001) N2045 which we adopt and it is as follows:

1. A person arrested and charged with an offence is entitled under s.42(6) of the Constitution to bail at any time except for wilful murder and treason, but a bail authority still has the discretion to refuse bail "if the interests of justice otherwise require;
2. The Bail Act (Chp.340) by s.9 sets out the circumstances in which bail may be refused;
3. The existence of one or more of the circumstances under s. 9 of the Bail Act may form the basis to refuse bail, but that is not automatic. There is discretion in a bail authority to grant bail if an applicant for bail is able to show by appropriate evidence that his "continued detention in custody is not justified";
4. The burden to produce appropriate evidence to form a foundation for a grant of bail is not a difficult and complicated one because by virtue of s.9(2) of the Bail Act, the application of the technical rules of evidence are excluded;
5. The list of circumstances under s.9 of the Bail Act is not exhaustive and other factors may be taken into account before deciding whether or not to grant bail.
   

20. As pointed out above, other grounds apart from those prescribed under Section 9(1) of the Bail Act may be considered in the interests of justice. In Fred Keating v The State [1983] PNGLR 133 at 139, Andrew J mentioned one other consideration namely, the strength of the evidence against the defendant including the scope of the prosecution case and the probability of conviction.

21. In Philip Maru and Arua Oa v The State (2001) N2045, Kandakasi, J (as he then was) suggested a further eight consideration in addition to those prescribed under Section 9(1) of the Bail Act which may be taken into account by a bail authority before deciding whether or not to grant bail and these are:

1. The applicant being a habitual criminal;

2. Whether the applicant is a trustworthy person and will meet any bail terms that may be imposed;
3. The number of bench warrants outstanding for bail jumpers for the kind of offence the applicant is held in custody for;
4. The costs and expense the society may be put through in trying to bring the applicant to justice if he breaches his bail terms which may mean delays in a speedy trial which may have the risk of the State loosing vital evidence supporting the charge against the applicant;
5. The expenses and the trouble the society through the Police Force, has been put through to secure the applicant's arrest and incarceration;
6. Whether the proposed guarantors are serious in their proposal having regard to the amount of money they are able to pay in sureties;
7. Whether the amount of cash bail proposed has any relative correspondence to the offence with which he has been charged; and
8. Whether the applicant would have already served his penalty without a trial by reference to the offence with which he has been charged and the possible date for his trial.
   

22. In The State v Beko Job Paul [1986] PNGLR 97, a case involving an application for bail by a youth charged with the offence of breaking, entering and stealing, it was held that the nature of an offence itself may have the effect of operating as a sufficient factor to refuse bail unless the court was convinced that the continued detention of an applicant was not justified.

23. It is also trite law that the onus is on those who oppose bail to convince the Court why bail should be refused: Re Herman Kagl Diawo (1980) PNGLR 148.

CONSIDERATION
Parity principle

24. The parity principle usually applies in the exercise of a trial court’s sentencing discretion where offenders who commit the same crime should receive similar or same sentences, but it is not a hard and fast rule. Mr. Popeu was unable to support his submission with any case authority in this jurisdiction applying the principle in a bail application. However, it has been consistently held in both the Supreme and National Courts that each bail application must be considered on its own merits and the grant of bail to a co-accused does not follow that bail must automatically be granted to another co-accused: Re Boram Correctional Institution; Bernard Uriap v The State (2009) N3822. By the same token, the refusal of bail to a co-accused does not follow that another co-accused should automatically be refused bail. It nevertheless is a further consideration to be considered when deciding whether to grant or refuse bail. This a fresh application for bail so the application must be considered on its own merits. The fact that Dikana was granted bail does not automatically follow that the applicant must be granted bail. This ground has no merit.

Medical condition

25. We concur with the respondent’s submission. We are not satisfied that the evidence demonstrates that the applicant’s medical condition is seriously deteriorating and he is being denied medical assistance: Ere v The State (2018) SC1875. This ground has no merit.

Interference with witnesses

26. The nature and gravity of the offence that the applicant and his co-accused are charged with, the circumstances surrounding the commission of the alleged offence and the penalty it entails are reasonable grounds to refuse bail under Section 9(1)(f) of the Bail Act having been satisfied that under these circumstances, the applicant is likely to interfere with prosecution witnesses and the person who instituted the proceedings. In addition, we note that the offence involves criminal property of substantial value which was estimated to be worth PGK200,000,000.00 (AUD$80,000,00.00). This ground has no merit.

Shipment of criminal property to Australia

27. No evidence has been led by the applicant as to whether the alleged shipment of the criminal property has actually been undertaken and, if so, what action the Australian police will take in relation to the criminal property. In addition, its implication on the applicant and his co-accused in connection with the offence they are charged with or otherwise has not been mentioned. This ground has no merit.

Other grounds in applicant’s affidavit

28. Two other grounds are mentioned in the applicant’s affidavit and these are; the applicant’s innocence until proven guilty; and welfare of family.

29. The issue of whether an applicant is guilty or not is a matter for trial: Malaki Kongo & Joe Akusi v The State (1996) N1544; Triga Kakarabo v The State (1999) N1891; Martin Aibel v The State (2009) N3636; Dr. Theo Yasause v The State (2011) SC1112. This ground has no merit.

30. As to the welfare of family, this ground is not considered by the courts as justifying release on bail except in very exceptional cases; Philip Maru and Arua Oa v The State (2001) N2045; Joe Apau v The State (2010) N4073; Re Bail Application by Alphonse Silas Hombi (2010) N4080. This ground has no merit.

CONCLUSION

31. All grounds relied on by the applicant in the applicant’s written and oral submissions and those not mentioned but contained in the applicant’s own affidavit have no merit and are dismissed. We are satisfied that the considerations under Section 9(1)(f) and (i) of the Bail Act are present. It is therefore not in the interests of justice to admit the applicant to bail.

ORDER

32. The formal order of the Court is that the application for bail filed on 27 July 2021 is refused and dismissed.

Judgment and order accordingly.

__________________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent