Anabtawi, Re Bail Application [1980] PNGLR 195 (13 August 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 195 - Re Application for Bail by Samir Taleb Abdullah Jaber Anabtawi 

[1980] PNGLR 195

N249

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

RE SAMIR TALEB ABDULLAH JABER ANABTAWI.

Waigani

Wilson J.

13 August 1980

CRIMINAL LAW - Practice and procedure - Bail application - Pending committal - Whether applicant likely to interfere with witnesses if granted bail - Whether unlikely to appear at trial - “Likely” - Bail Act 1977, ss. 9(1)(a), 9(1)(f)[cccix]¹.

WORDS AND PHRASES - “Likely” - Likely to interfere with witnesses - Unlikely to appear at trial - Bail application - Bail Act 1977, ss. 9(1)(a), 9(1)(f)[cccx]².

On an application for bail pending trial or committal pursuant to s. 9 of the Bail Act 1977, the applicant is entitled to bail unless the prosecution can satisfy the bailing authority on reasonable grounds as to one or more of the considerations set out in s. 9(1).

Where the prosecution bears the onus of showing that the applicant is “unlikely to appear at his trial if granted bail” it must show a tendency to abscond or a real possibility that the applicant will not appear at his trial.

Re Paul Louis Kysely [1980] P.N.G.L.R. 36 followed.

Where the prosecution bears the onus of showing that the applicant is “likely to interfere with witnesses” if granted bail, it must show a tendency so to interfere or a real possibility that he will so interfere.

Re Paul Louis Kysely [1980] P.N.G.L.R. 36 followed.

Bail Application.

This was an application for bail by a person who was charged with importing marijuana and unlawful possession of that drug.

Counsel:

S. Cory, for the applicant.

P. Norman, for the State.

Cur. adv. vult.

13 August 1980

WILSON J.: This is an application for release on bail pending the applicant’s trial or committal for trial on one charge of importing approximately 150 kilograms of the drug cannabis resin or marijuana which is a prohibited import in contravention of s. 218(1)(b) of the Customs Act 1951 and one charge of unlawful possession of that drug in contravention of s. 218(1)(d) of the Customs Act.

The applicant in this case starts with a heavy presumption in his favour. As is guaranteed to him under the Constitution and under the Bail Act 1977, he is entitled to bail, and a bailing authority shall not refuse him bail, unless that authority is satisfied on reasonable grounds as to one or more of the considerations set out in s. 9(1)(a) to (g) of that Act.

The provisions of s. 9(1) of the Bail Act 1977 as amended which are relevant to this application are:

“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

...

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

The onus in this case is on the prosecution to satisfy me that the applicant is unlikely to appear at his trial if granted bail or that the applicant is likely to interfere with witnesses. If that onus is not discharged, then I should not refuse bail.

Has the onus been discharged? Regarding the question of whether the applicant is likely or unlikely to appear at his trial if granted bail, no evidence has been placed before me showing a tendency to abscond or a real possibility that the applicant will not appear at his trial (see In re Paul Louis Kysely[cccxi]³). Furthermore, such evidence as the applicant has placed before me operates very much in the applicant’s favour; he has lived in Papua New Guinea for the past ten years, he has a wife and three small children, he has a house, and he has a job which he has held for the past six years. The fact that the applicant, if he is convicted, could receive a heavy sentence and any belief on the applicant’s part that he might receive such a sentence may be “incentive enough”, to use Mr. Norman’s words, for the applicant not to appear at his trial. However, in a case such as this and on the evidence before me I cannot be satisfied that the possibility of absconding has been shown to be anything more than a remote possibility.

The evidence is not that the applicant is a drug smuggler or drug pusher; at the highest on the importing charge, the evidence is that he assisted an alleged drug smuggler or pusher; at the highest on the unlawful possession charge, the evidence is that the applicant had in his home for a short time some suitcases belonging to a friend of his, which suitcases, unknown to him, contained prohibited imports in the form of a drug.

Regarding the question of whether the applicant is likely or unlikely to interfere with witnesses, no evidence has been placed before me showing a tendency so to interfere or a real possibility that he will so interfere (see In re Paul Louis Kysely[cccxii]⁴).

The case of the respondent might have been stronger and my decision might have been otherwise if it had appeared to me that there was a strong probability that the applicant would be convicted of one or other of the charges he faces. On the evidence placed before me the probabilities are all the other way. It is inappropriate for me to say any more than that about the evidence upon this application.

I am, therefore, not satisfied on reasonable grounds as to either of the considerations set out in s. 9(1)(a) and (f) of the Bail Act. Accordingly, the application for bail is granted.

I will hear counsel as to the amount of the bail, the conditions of bail, and any other ancillary matters.

I take this opportunity to draw attention of the legislature to the provisions of s. 9(1) of the Bail Act 1977. It seems to me that, if it is appropriate for a bailing authority to refuse bail if satisfied on reasonable grounds 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 a serious assault, or a threat of violence to another person or having or possessing a firearm, imitation firearm, other offensive weapon or explosive, so it is also appropriate at this time in Papua New Guinea for a bailing authority to have power to refuse bail if satisfied on reasonable grounds that the alleged act or any of the acts constituting the offence in respect of which the person is in custody consists or consist of importing or possessing such a large quantity of a prohibited import in the form of a drug as to manifest an intention to supply others.

Applicant released on bail in the sum of K1,000 cash on condition that he report daily to the Boroko Police Station and that, his passport having been surrendered to the police, he not to seek to retake possession thereof until further order.

Solicitor for the applicant: S. Cory.

Solicitor for the respondent: L. Gavara, Acting Public Prosecutor.

[cccix] Infra p. 196.

[cccx] Infra p. 196.

[cccxi] [1980] P.N.G.L.R. 36.

[cccxii] [1980] P.N.G.L.R. 36.