DC947

PAPUA NEW GUINEA
In the District Court of Criminal Jurisdiction

Case Number Com. No 502-505/2009

BETWEEN:

RAY BAN
Informant

AND:

GOMOLAN MABUAN
ONAL MABUAN
RAPHAEL KAFI
MOSES MALOKANI
AMOS MALOKANI
Defendants

MADANG: J KAUMI, M
2010 – 15th March

CRIMINAL LAW –Bail Application– Application by applicants– Grounds or reasons for bail not substantiated by evidence – Strict rules of evidence do not apply – Long list of bench warrants following breach of bail terms considered - Court need to consider interest of society to deal with offenders according to law once before the court – Stricter and higher bail terms may now have to be imposed.

Cases cited:

Re Fred Keating [1983] PNGLR 133 
The State v. Beko Job Paul [1986] PNGLR 97
The Matter of an Application for Bail, by Sergeant Pokou Steven & Others v. The State (1997) N1641 
Jeffery Orasa v The State (MP.351 of 2000) (Unrept and Unnumbered)
Steven Lester v The State N2044
John Raikos v The State (MP.206 of 2000) (Unrept and Unnumbered)
Francis Kensi Pele v The State (2000) PNGLR 100
Legislation:
Constitution of PNG
Bail Act Chapter No. 340
Criminal Code of PNG

Counsel:

Mr Emanuel Thomas for the Applicants 
Sgt P Nonao for the State

15th March 2010

1. Kaumi, M: This is an application for bail under s. 42(6) of the Constitution and s. 6 of the Bail Act (Chp.340) by the applicants and the reasons for my judgment to meet the requirements of s.16 of the Bail Act. This application was brought to my attention after I was assigned Committal Court duties by the SPM, Mr. Seneka starting on the 14/12/09.

INTRODUCTION

2. The applicants were charged with six counts of arson contrary to Section 436 (a) and detained at Beon CI in the Madang Province.

3. The applicants applied for bail under Section 42 (6) of the Constitution and Section 6 of the Bail Act Chapter 340.

4 .The Police Prosecutor objected to the bail application as per the affidavit of the Informant, Detective Sergeant Ray Ban dated 18/12/09.

RELEVANT FACTS

5. The applicants filed their applications for bail on the 10th of December 2009.

6. The application comprised of the Bail Application, supporting affidavits from the defendants, and two guarantors, Mr. Paul Kukum (Community Leader and Community Support Coordinator of Efu Village), and Mr.Waks Yoki, a Morgue Attendant at Modilon General Hospital . 

7. The allegation against the applicants is that, having being armed with homemade guns, a factory made shotgun, bush knives, grass knives, axes, slingshots and other dangerous weapons on the 22nd of June 2009, between 3:00 pm and 4:00 pm went on a rampage through the village of Dolonu and set fire to six (6) bush material dwelling houses belonging to Kubous Ebu, Tanavo Wagel, Martin Wagel, Johnny Wagel, Tonny Gubous and Jeff Umsha. That at the time Amos Malokani and his co accused threatened to kill the owners of the dwelling houses and their families with the weapons they were armed with and set fire to their houses.

8. After setting the dwelling houses on fire, Amos Malokani and his co accuseds kept on threatening the complainants and told them not to report to the Police. He and his co accuseds told the complainants and their families that they would shoot them with their guns if they reported the matter to Police.

9. Amos Malokani and his co accused were on the run until they were sighted in town on Thursday 19th November, 2009 and arrested and taken to the CID office for questioning in relation to this matter and later arrested. 

10. The grounds for their application are:-

a. Over crowding.

b. Sickness Cholera.

c. Concern for the welfare and well being of their parents and children.

THE RELEVANT LAW

11. The relevant law governing the issue of whether or not bail be granted, which I adopt as a matter of practice has been considered by Kandakasi.J in Jefferey Orasa v The State (1) at page 2-3 and was summarized in this way:-

"A. A person arrested and charged with an offence is entitled under s.42(6) of the Constitution to bail at any time except for willful murder and treason but a bail authority still has the discretion to refuse bail "if the interest of justice otherwise requires"; 

B. The Bail Act (Chp.340) by s.9 sets out the circumstances in which bail may be refused; 

C. 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"; 

D. 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 excludes the application of the technical rules of evidence; 

E. The list of circumstances under s.9 of the Bail Act is not exhaustive and other factors such as the following may be taken into account before deciding whether or not to grant bail: 

a. The applicant being a habitual criminal; 

b. Whether the applicant is a trustworthy person and will meet any bail terms that may be imposed; 

c. The number of bench warrants outstanding for bail jumpers for the kind of offence the applicant is held in custody for; 

d. The costs and expenses 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; 

e. The expenses and the trouble the society through the Police Force, has been put through to secure the applicant’s arrest and incarceration; 

f. Whether the proposed guarantors are serious in their proposal having regard to the amount of money they are able to pay in sureties; 

g. Whether the amount of cash bail proposed has any relative correspondence to the offence with which he has been charged; and 

h. 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".

12. His Honor’s summation above followed judgments in Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State (2) (; The State v. Beko Job Paul (3) Re Fred Keating (4); Steve Lester v. The State (5) (supra); John Raikos v. The State (6); Francis Kensi Pele v. The State (7).

13. His Honour Kandakasi continued that Akuram J., in The Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State (8) and Wilson J., in The State v. Beko Job Pau (9) provide that the list of circumstances under s. 9 of the Bail Act do not necessarily limit the factors a Bail authority can take into account to decide whether or not to grant bail. Other factors may be taken into account in order to determine what does "the interest of justice otherwise requires". In other words, bail authorities should not proceed to grant bails as a matter of course. Instead as already stated above, it should carefully consider the interest of the applicant to be left out on bail and the interest of the society to have offenders dealt with according to law once brought before the Courts in a manner that is prompt, effective and less expensive. This may involve the bail authority taking into account all of the factors under s. 9 of the Bail Act and such other factors the bail authority considers appropriate before deciding whether or not to grant bail

14. Section 6(2) of the Bail Act provides that:

"A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.

THE PRESENT CASE

15. In consideration of these principles discussed above and applying them to the present case, the application is refused. The relevant factors which have a bearing on my decision are in the following paragraphs.

16. Firstly, S.9 (2) does away with the strict application of the rules of evidence and the applicants have not taken advantage of this by providing evidence in support of the grounds advanced for their application.

17. Secondly, the offence the applicant allegedly committed involved dangerous or offensive weapons, namely homemade guns, a factory made shotgun, bush knives, grass knives, axes, slingshots and other dangerous weapons which were used to threat serious assault or danger to the victims if they attempted to prevent them burning from down their dwelling houses and threatened to kill them with the very same weapons they were armed with if they reported the arsons to Police. These weapons have not been recovered by police nor have they been surrendered to authorities. This placed the application under s.9 (1) (c) of the Bail Act. That meant that the application could be refused unless the applicants were able to show by appropriate evidence, that their continued detention was not justified going by the Supreme Court decision in Re Keating (10) at pages 138 and 140, per Kapi DCJ and Andrew J. respectively.

18. Thirdly, the applicants did not produce any evidence and show that their continued detention in custody was unjustified.

19. Fourthly, when I consider the circumstances of and number of offences the applicants have been charged in comparison to the amount of money proposed for cash bail and surety which was a mere K200:00 and K200:00 respectively, surely they do not correspond and are insignificant and by this I mean they needed to show some seriousness about their need to comply with any bail terms that may be imposed. As Kandakasi.J stated in Jeffery Orasa v The State (MP 351 of 2000), "A higher cash bail and surety may make an accused person who is granted bail to comply with the terms of the bail if any, to protect or save guard against their forfeiture. This may eliminate the risk of him breaching his bail conditions, which is a risk a bail authority has to consider and if satisfied that there will be no breach of bail conditions, bail may be granted".

20. Fifthly, that the defendants did not surrender to law enforcers immediately after the incident on their own accord but were apprehended after they were sighted going about their own business in Madang Town on 19th November 2009,some four months later, and contrary to what they claim.

21. Sixthly, the applicants, Moses and Amos Malokani have since been charged with other offences of Arson that allegedly occurred after the 23/06/09 on the 10th July 2009 in which the same modus operandi was used.

22. The fifth and sixth factors cast a shadow of doubt on the applicants’ trustworthiness to comply with all bail conditions and for that matter the sincerity of the whole application.

23. In the immediate case I have considered all of the above as well as the need to be more cautious in view of the long list of outstanding bench warrants for people who have been granted bail and have breached the terms of their bail In the Madang Province alone as at 06/07/2009 there were 399 Bench Warrants outstanding of which 35 were for Arson dating back to 1987. The trend in this province seems to be that a grant of bail is taken as a one way ticket into oblivion and are never seen again in Court. The large number of bench warrants in this province alone is testimony of the failure of bail authorities to carefully assess the trustworthiness of applicants to adhere to all conditions that accompany the bail granted. This has been possible because the terms more particular the cash bail amounts and sureties have been almost negligible.

Paraka Lawyers for the Applicants 
Police Prosecutor for the State
______________________________________________
1. (MP.351 of 2000) (Unrept and Unnumbered)
2. The Matter of an Application for Bail, by Sergeant Pokou Steven & Others v. The State (1997) N1641
3. [1986] PNGLR 97; 
4. [1983] PNGLR 133
5. N2044
6. (MP.206 of 2000) (Unrept and Unnumbered)
7. (2000) PNGLR 100
8 Supra Note 2 
9. Supra Note 3
10. [1983] PNGLR 133