[2000] PNGLR 100

PAPUA NEW GUINEA

[national court of justice]

FRANCIS KENSI PELE

v

THE STATE

lae: kandakasi j
24, 25 January 2001

CRIMINAL LAW — Bail application — Application by applicant in person — Grounds or reasons advanced 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 — Bail Act (Ch 340) ss 6, 9 and 16.

Facts

The applicant was charged with armed robbery with actual violence of a dwelling house at night and detained at Buimo Correctional Institution Service in the Morobe Province. The applicant applied for bail under s 42(6) of the Constitution and s 6 of the Bail Act Ch 340. The grounds for his application are:-

1.	there is overcrowding at Buimo Correctional Institution Service;

2.	there is no clothing, blankets or beddings etc;

3.	No proper resting places; and

4.	Parents are very old and he is the only son in the family to care for and support his family.

Held

1.	Section 42(6) of the Constitution, whilst granting all persons arrested and charged with an offence a right to bail, it also vests in a bail authority a discretion to decide whether or not to grant bail which is subject to the list of circumstances specified in s 9 of the Bail Act. The State v Beko Job Paul [1986] PNGLR 97 and Re Fred Keating [1983] PNGLR 133 considered.

2.	The list of circumstances specified under s 9 do not necessarily limit the factors that a bail authority can take into account to decide whether or not to grant bail such as the interest of the applicant to be let out on bail and that of the society to have the offender dealt with according to law, once brought before the courts, in a manner that is prompt, effective and less expensive. The matter of an Application for Bail by Sergeant Pokou Steven & Others v The State (1997) N1641 considered.

3.	There is no credible evidence, such as guarantors, supporting the application to show the court that the applicant is a trustworthy person and that he will comply with any bail terms that may be imposed, given the fact that the offence, with which he is charged, is of very serious nature and also the fact that there is a long list of outstanding bench warrants issued for the arrest of the accused who have jumped bail. Steve Lester v The State, unreported and unnumbered judgment, of 22 January 2001, MP 856 of 2000 considered.

Papua New Guinea cases cited

Re Fred Keating [1983] PNGLR 133.
Steve Lester v The State, unreported and unnumbered 22 January 2001, MP 856 of 2000.
The matter of an Application for Bail by Sergeant Pokou Steven & Others v The State (1997) unreported N1641.
The State v Beko Job Paul [1986] PNGLR 97.

Counsel

Applicant in Person with Mr. Mwawesi assisting.
J Pambel, for the State.

25 January 2001

Kandakasi j. This was an application for bail under s 42(6) of the Constitution and s 6 of the Bail Act Ch 340 by the applicant himself. I heard the application and refused it on 24 January 2001, and gave brief oral reasons for it. At that time, I promised to publish my reasons in a written judgement before the end of the week in due recognisance of the requirements under s 16 of the Bail Act. This is the judgement I promised.

In the case of Steve Lester v The State (unreported and unnumbered judgement I delivered on the 22nd of this month here in Lae) MP 856 of 2000, I set out the relevant law as follows from pages 2-4:

Bail is an entitlement, under s 42(6) of the Constitution, for all persons arrested and charged with an offence, except for treason and willful murder. That provision reads:

(6)	A person arrested or detained for an offence (other than treason or willful 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. (emphasis mine)

Clearly from the words highlighted, the right to bail is not therefore automatic. There still has to be a determination by the bail authority on the question of whether or not "the interest of justice otherwise requires" a refusal of bail. Mr. Justice Akuram as he then was in The Matter of an Application for Bail by Sergeant Pokou Steven & Others v The State (1997) N1641, in respect of bail applications in cases other than willful murder and treason said:

"I hold the view that s 9 of the Bail Act 1977 does not contain all considerations that are relevant as to whether bail should be refused "in the interests of justice". Section 42 (6) of the Constitution does not say that the phrase "interests of justice" may be defined by an Act. There are two reasons why the phrase must be given a very wide meaning and application:

(a)	It says "interests" — ie. the plural of the word "interest" is used; and

(b)	Section Sch. 1.5(2) says that "All provisions of, and all words, expressions and propositions in, a Constitutional law shall be given their fair and liberal meaning".

"Justice" is a two-edged sword and cannot possibly be confined to mean those considerations enumerated in s 9(1) of the Bail Act 1977. For instance, in my opinion, it would be in the interests of justice to refuse bail to a person known to be a habitual criminal, although s 9(1) does not say so."

I respectfully accept and adopt the interpretation given. I consider that accords well with the accepted position at law that, in order to do justice, the interest of all concerned with whatever the matter is before the courts should be taken into account before arriving at a decision. In respect of bail applications, the interest of the applicant to be granted bail and the communities’ interest to see an offender, once brought before the courts is being dealt with expeditiously according to law and in a less expensive way as much as possible, have to be taken into account to do justice. That as of necessity, requires the courts or a bail authority to consider all relevant factors and considerations that may affect the issue of whether or not the interest of justice requires a grant of bail.

Earlier on, in The State v Beko Job Paul [1986] PNGLR 97, Wilson J., at page 99, in relation to a break and enter charge with intend to steal police arms, said:

"However, I consider that the offence the nature of which involves the clear intent to secure arms negates that presumption and that the interests of justice are not served by failing to give special significance to this type of crime and the consequences that flow, or could flow from it. On the basis of this reasoning I refuse bail, there being nothing in the application which convinces me that the continued detention is not justified."

From the above, it should be clear that s 42(6) of the Constitution whilst granting all persons arrested and charged with an offence a right to bail; it also vests in bail authority discretion to decide whether or not to grant bail. The Supreme Court in Re Fred Keating [1983] PNGLR 133 per Kapi DCJ., at page138, in respect of that discretion, said this:

"The exercise of the discretion to grant bail should be used readily unless any one of the matters under s.9 is established. The Act treats each consideration as equal. One is not to be considered as less serious than the other for the purposes of refusing bail. That is the effect of s 9. However s 9(1) provides for refusal of bail on "one or more" of these considerations. This envisages a case where objection to bail may be taken on more than one of these considerations. I am of the opinion that when one of these considerations is established, the court should exercise its discretion to refuse bail."

As can be seen from the above, there can now be no dispute that the Bail Act, s 9 in particular sets out the circumstances in which bail may be refused. The existence of one or more of the circumstances specified by s 9 of the Bail Act may form the basis to refuse bail in the exercise of the discretion vested in the bail authority. At the same, I remind myself that the existence of any one or more of the factors under s 9 of the Bail Act, do not automatically operate against the grant of bail. It only imposes a burden on the applicant to show that his detention in custody is not justified and that the interest of justice requires his release. In Re Fred Keating (supra) the Supreme Court, per Andrew J at 140, stated in my view the correct legal position in these terms:

"The use of the words in s 9(1) that the bail authority ‘shall not refuse bail unless satisfied...’ illustrates that prima facie one is entitled to bail. That is the intent of the Constitution and of the Bail Act. When one or more of the considerations in s 9(1) is shown to exist then there is a ground for refusing bail. The use of the word "shall" does not mean, in my opinion, that bail must as a matter of course be refused when those matters are proved. To read it that way would be contrary to the whole scheme and intent of the Constitution and the Bail Act. Whether or not bail is refused is a matter of discretion.

That the grant or refusal of bail is discretionary may also be discerned from the other provisions of the Bail Act. By s 13 one can make successive applications from a magistrate, to the National Court and to the Supreme Court. By s 9 it is not mandatory that bail be refused if one of the conditions therein is proved because it may be refused for "one or more" of those considerations. If it was automatically refused for one of those reasons there would be no necessity to provide for its refusal for more than one.

In my judgment the use of the word "shall" in s 9(1) of the Act shows that it can be seen that the bail authority must refuse bail if one or more of the conditions are proved unless the applicant shows cause why his detention in custody is not justified. Such an exercise is always discretionary."

Before proceeding to specifically deal with the present case, one final point has to be made concerning the factors that may prevent a grant of bail. As was stated by Akuram J., in The Matter of an Application for Bail by Sergeant Pokou Steven & Others v The State (supra) and Wilson J., in The State v Beko Job Paul (supra), 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 let 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.

In the present case the applicant advanced the following grounds or reasons for applying for bail:

1.	There is overcrowding at Buimo CIS;

2.	There is no clothing, Blankets or Bedding etc;

3.	No proper resting places; and

4.	Parents are very old and he is the only son in the family to care for and support his parents.

In an earlier copy of his application, he complained of some medical conditions but that has been abandoned in the subsequent form that has been filed.

At the time of the hearing, I asked the applicant to take the court through his application. He only repeated his grounds and or reasons without any elaboration. He added that he was denying the charge against him.

The applicant did not furnished any evidence in support of his application. The only material constituting his application are his bail application form (x2), the information charging him with armed robbery with actual violence of a dwelling house at night and the summary of facts in support of the charge.

It is not too difficult for an applicant for bail to adduce whatever evidence he considers appropriate in support of his application as the technical rules of evidence do not apply because of s 9(2) of the Bail Act. However, for reasons only known to the applicant in the present case, he did not produce any evidence.

The State opposed the application on the basis of s 9(1)(c) of the Bail Act. Mr. Pambel argued that the offence, with which the applicant was charged, was a serious one. It involved the use of offensive weapons and actual violence. The robbery was of a dwelling house at night. As I said in the application of Steve Lester, this forms the basis, in line with cases like that of The State v Beko Job Paul (supra) and the Supreme Court decision in Re Fred Keating (supra), to refuse bail. Of course, if the applicant is able to show by appropriate evidence that his continued detention in custody is not justified and is against the interest of justice, bail could be granted, notwithstanding those factors. The burden to do that was on the applicant and he failed to do that.

As I did in the Steve Lester application, I fail to see how the grounds advanced in support of the application could be accepted in discharge of the burden spoken of above. This is because first, there is no evidence whatsoever to prove their existence and secondly, I fail to see how all or any of them could be regarded has a factor or factors showing his continued detention in custody is not justified and that it is in the interest of justice that he should be granted bail.

Further, I note that, there is no credible evidence demonstrating to this Court that the applicant is a trustworthy person and that he will comply with any bail terms that may be imposed. In so noting, I do appreciate the provisions of s 9(2) of the Bail Act, which provide that the technical rules of evidence do not apply. That, in my view, opens the door for any evidence that is relevant to the issue of bail to be brought into court without complying with the technical rules of evidence.

As I said in the Steve Lester, the need to demonstrate that the applicant is a person that will faithfully comply with any bail terms that may be imposed is very important. This is so, given the long list of outstanding bench warrants totaling almost 300, most of whom appeared to have jumped bail. I repeat what I said in that judgement:

"This calls for more care and caution to be exercised before acceding to an application for bail. In my view, a bail authority should first be satisfied that as a matter of fact, the applicant if granted bail will faithfully meet any terms that may be attached to it including his appearing in court to be further dealt with in relation to the charge against him until excused by the Court. It would defeat the whole purpose of law enforcement efforts of bringing offenders to the Courts to be dealt with according to law if bails are granted without any certainty of the offenders answering bail and therefore continue to submit to the jurisdiction of the Courts to be further dealt with, given the number of people breaching bail conditions.

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."

In the present case, I found that no evidence, in any form and manner, was present to substantiate any of the grounds the applicant advanced in support of his application. He also failed to show, in any way, his continued detention in custody was not justified. On the information presented, the applicant was a member of an armed gang, which was involved in the robbery of a dwelling house at about 11:00pm. It involved actual violence and the used of offensive weapons. The cash and goods stolen in the robbery added to an estimated value of K7,750.00. These no doubt posed a threat or danger to the lives of the victims whose peaceful night was disturbed. They may have suffered shock and panic. A quick perusal of the outstanding bench warrants list shows a large number of them are armed robbers. There is no evidence in any form whatsoever to show that the applicant will faithfully meet all or any terms that may be imposed for his bail. There are no guarantors supporting the application who are prepared to see the applicant meet any conditions that may be imposed for a grant of bail. In all the circumstances, therefore, I decided to refuse the application.

Applicant in person.
Lawyer for the State: Public Prosecutor.