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In the Matter of The Bail Act (Chapter 340); Application for Bail by Steven and Johnnes, Peso, Kinbaga Reuben, Sawang Wabut, Amatus Jacob, Akipe Aju, Villie Morris, Sailas Peter, Tomai Freddy, Kaman Amos, [1997] PGNC 138; N1641 (23 October 1997)

Unreported National Court Decisions

N1641

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1189 OF 1997
CHAPTER 340 IN THE MATTER OF THE BAIL ACT
BETWEEN
IN THE MATTER OF AN APPLICATION FOR BAIL BY SERGEANT POKOU STEVEN & BAKANGILI JOHNNES, TAPOL PESO, KINBAGA REUBEN, SAWANG WABUT, AMATUS JACOB, AKIPE AJU, VILLIE MORRIS, SAILAS PETER, TOMAI FREDDY, KAMAN AMOS, ORERE FREDERICK, PANGA PHILIP - APPLICANTS
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - RESPONDENT

Mount Hagen

Akuram J
22-23 October 1997

BAIL APPLICATION - after committal - Defence Force Personnel - National Security as against interest of Justice s.42(6) and factors under section 9(1) of Bail Act - considerations.

Cases Cited

Re Fred Keating (1983) PNGLR 133

St v Paul Tohian (1990) PNGLR 173

Counsel

Korowi & Kelaga for Applicants

Kesan for Respondent

23 October 1997

AKURAM J: This is an application for bail pursuant to sections 42 (6) of Constitution and 6, 7 8 & 9 of Bail Act, Ch. 340.

The thirteen Applicants are Defence Force Soldiers who were arrested and charged under section 52 (1) (b) of Criminal Code Act - “quasi-military organization”. The applicants were arrested in June at Wabag and transferred to Mount Hagen where they were committed to National Court for trial on 23rd of September. The matter was then set down for trial on and from 16th to 24th March 1998.

There was a similar application made on 29th August and ruling made by His Honour Sevua, J on the 5th September refusing bail in Waigani National Court. (MP 247/97 and 248/97). I have had the benefit of reading His Honour’s Ruling which was annexed to the affidavit of Korowi, Counsel for Applicants. Both Ms Kelaga and Mr Korowi in their affidavits in support of this application deposed that since the first refusal in His Honours ruling, there has been certain changes, thus the need for this application. Mr Korowi deposed that:

3. I note from his Honour’s Ruling that one of the prime reasons why bail was refused was because of principles considered relevant to the interest of justice. His Honour’s view regarding interest of justice are set out at pages 4 and 5 of the Ruling.

4. With respect to his Honour Sevua J’s view, I am instructed and verily believe that circumstances which His Honour considered relevant at that time have changed since refusal of the bail which do not warrant continuous detention of the applicants. What may be considered to be reasonably justifiable in the interest of justice depends on the circumstances of each particular case.

Some of these changes which his honour considered relevant in refusing bail to the Applicants have since changed. Some of these circumstances have been described by Jennifer Kelaga in paragraphs 6 and 7 of her affidavit sworn on 21st October 1997.

5. Further to the matters relevant to change in circumstances deposed to by Ms Kelaga in her affidavit, I have been instructed of further changes which are:

(a) Those involved in the Sandline Crises since March 1997 have been granted bail by the Courts and are currently undergoing prosecution before the Defence Court Martial and before the ordinary Committal Courts at Port Moresby.

(b) Mr Walter Enuma, who was alleged to have been principally involved in the Sandline Crises and also charged under section 51 of the Criminal Code was granted bail pending committal proceedings at Port Moresby.

(c) Discipline and Normalcy in the Defence Force hierarchy has been restored. All persons involved in the disintegration or destabilisation of the Defence Force have been properly dealt with under the provisions of the Defence Act and in the ordinary court at Port Moresby.

(d) The Applicants have been penalised by the Defence Force by being put off the payroll. As a result, their families in Port Moresby have been without food and money.

I have assisted in the conduct of the committal proceedings for the Applicants and believe that their continuous detention is not justified in view of the change in circumstances. I believe that they should be granted bail.

Ms Kelaga deposed as follows:

3. I am instructed that most or all of the Applicants reside in settlements outside the perimeters of the National Capital District with their families due to accommodation problems that is currently being faced by the PNGDF.

4. Since the detention the Applicants have been refused bail by the Mount Hagen District Court. A further application by Pato lawyers in Waigani National Court was also refused by His Honour Justice Sevua. Thus, the necessity to make this application before the National Court here in Mount Hagen.

5. Because this is the second time such an application is being made before the National Court the onus is on the counsel for the Applicant to show that special circumstances have arisen since the application was last entertained or in the alternative there was such a special change in the circumstance surrounding the bail application.

6. I have therefore been instructed that the following changes in the circumstance have occurred since the Applicants last applied for bail for the National Court.

(a) About two months ago from the date of this application salaries due and owing to all the Applicants herein have been withheld by the PNGDF. This has caused great difficulties for the Applicants and their families who apparently are all resident in the National Capital District.

(b) Secondly due to the deteriorating jail conditions, alot of the Applicants have contracted dysentery, developed boils and fits of head-ache. This may not look alarming but a notable case is Applicant Johaness Bangangue who has developed a crippling disease in both knees and is now walking with the aid of crutches.

(c) Thirdly and fore-most, the penalty prescribed under Section 52, Criminal Code Act - “QUASI MILITARY ORGANISATION” is “a fine not exceeding K500.00 or imprisonment for a term not exceeding one year”.

Given that scenario, the Applicants have already served an equivalent of a third of the maximum penalty by being in custody, whilst being refused bail by various Courts.

7. In the circumstances, their continued stay in custody will impinge on their constitutional rights to liberty, bail and full protection of the Law.

Mr Korowi cited section 8 of Bail Act saying that bail can be made at any time or stage from arrest and throughout the Committal proceedings to after Committal and even pending sentence. Section 8 of the Bail Act reads:

8. Bail after committal for trial or sentence

Subject to Section 4, where a court commits a person who is in custody for trial or sentence in the National Court, the court shall consider and accordingly grant or refuse bail to that person in accordance with section 9.

He submitted that this has been the position for the applicants. Section 42 (6), he submits, further says this and it reads:

(6) 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.

I agree with the Counsel on this and further that sections 6 & 7 fortifies the intent and purpose of section 42 (6) where they say:

6. Application for bail may be made at any time

(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.

(2) 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.

7. Bail on adjournment

Subject to section 4, where a person is in custody in connexion with any proceedings, including proceedings for committal for trial or sentence in the National Court, the Court shall, on each occasion that it adjourns the proceedings before conviction, consider and accordingly grant or refuse bail to that person in accordance with Section 9.

Mr Korowi submitted that under section 42 (6), the only offences for which bail may be refused are Treason and wilful murder as prescribed by an Act of Parliament or in a case where interest of justice requires not to grant bail. Even in Wilful murder or Treason, courts have readily granted bail. He referred to the case of St v Paul Tohian (1990) PNGLR 173 where Supreme Court in granting bail set down certain principles. That is, an Applicant is entitled to bail as a matter of Constitutional law unless it is in the interest of justice not to grant bail and in addition to the provisions in section 9 of Bail Act. It also held that matters material to the interest of justice need not be strictly proven as the Bail Authority is not bound by strict Rules of evidence as prescribed in section 9 (2) which reads:

(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.

It was also held in that case that where court considers one or more of section 9 (1) of Bail Act, bail should be refused unless Applicant shows why his detention is not justified. He submitted that it may appear that this is a case of public interest versus interests of the Applicants. Unless matters of public interest are put forward before the Court, he submits application be granted.

State opposed this application vigorously. His grounds were basically that National Court has already entertained the bail application and had refused so this court has no jurisdiction to entertain it again unless there is a change in circumstances. He then submitted that the applicants affidavits were the same ones filed in previous application and therefore nothing has changed since. He referred to Mr Korowi’s affidavit, paragraph 5 (a) & (b) that there are no changed circumstances but are common knowledge. He also refuted paragraph 5 (c) & (d). As to Ms Kelaga’s affidavit, he said the applicants did not mention that in their affidavits of their deteriorating conditions and that the penalty of K500 maximum fine or 1 year imprisonment is not a change in circumstances but were in existence at the time.

On the issue of interest of justice Counsel referred to case of Fred Keating (1983) PNGLR 133 where it is held that Court has an over and above discretion to give considerations under section 9 (1) of Bail Act. In support, he relied on the affidavit of Brigadier General Leo Nuia sworn on 17-10-97. That affidavit is very brief and reads:

1. I am the Commander of the PNG Defence Force;

2. Since being appointed as Commander in July 1997 I have seen that there was a lot of instability in the PNG Defence Force resulting in the security of the Nation being compromised;

3. Since taking up office, I have been attempting to instil and or reinstate cohesiveness, discipline and loyalty back in all ranks of the PNG Defence Force. This is not an easy task given the tumultuous events during and following the Sandline Crisis and the recent national elections. I verily believe that the Applicants will if released on bail have a negative influence on all my efforts to restore normalcy in the PNG Defence Force. (emphasis added)

The Respondent’s Counsel therefore had no further evidence except the above affidavit in support of his opposition to Bail in paragraph 2, where Brigadier General or Commander only said “I have seen that there was a lot of instability in the PNG Defence Force resulting in the security of the National being compromised” since he was appointed Commander in July 1997. What he meant by “the security of the Nation being compromised” is not clear. Further in paragraph 3, he says “...Applicants will if released on bail have a negative influence on all my efforts to restore normalcy in the Defence Force” again is only his belief and not yet a reality.

From his affidavit and those of Applicants and their Counsels, I can say that the issues in this Application are; (1) interest of National Security as against (2) interest of justice of each of these thirteen applicants. As to the interest of National Security, there were no submissions made and authorities cited to clarify what constituted the National Security as far as their charge is concerned.

The Applicants are charged under section 52 (1) (b) in that “they being members of the PNG Defence Force were organised for purposes of enabling them to be employed or display of physical force in promoting any political object”. Basically they were not authorised by the PNG Defence Force headquarters to do so. Although the issue of national Security was raised in TOHIAN’s Case it was not argued. However Kapi, DCJ discussed it under the issue of “in the interest of justice”. I therefore do not find evidence in support of this allegation or assumption.

As to whether the release of applicants would have a negative impact in all the efforts to restore normalcy, again there is no evidence. It is only an assumption. It is not clear whether this will happen. It may but it is not more than likely to happened.

I now come to the seriousness of this offence. This is not a treasonable offence or crime as defined under section 39 of the Criminal Code. Both the offences of treason and Wilful murder are excluded under section 42 (6) of Constitution as held in the Fred Keating’s case as stated by majority at page 135, when relating to the Bail Applications, that:

There are two categories of bail applicants - (A) those who are charged with wilful murder or treason and (B) those charged with other offences.

Category A applicants:

(a) They must apply to the National Court and the Supreme Court for bail.

(b) Their applications for bail are not subjected to the “interests of justice”. (See s. 42 (6) of the Constitution.)

Category B applicants:

(a) They are guaranteed bail at all times by s.42(6) of the Constitution.

(b) Their applications are subjected to the “interests of justice” by s. 42 (6) of the Constitution.

(c) They can apply to Police, Local Courts and District Courts for bail.

In case of Category B applicants, 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.

The applicants for bail for this offence come under section 9 (1) of the Bail Act plus section 42 (6) of the Constitution. Therefore in s. 9 (1) provisions, I have not been referred to any of the provisions from (a), (b), (d) to (j) except c (iii) but the applicant’s Counsel refuted that by saying there was no evidence in the Committal proceedings showing use of firearms.

As to section 42 (6) of the Constitution, the evidence and proceedings so far show that the Applicants have been arrested in June, committed to stand trial in National Court on 23rd September 1997. They applied for bail whilst the Committal proceedings were still in progress. Although His Honour, Sevua J did not comment on the consequences of applicants being convicted, I am of the view that the resultant effect is a maximum of K500 fine or in default 1 year imprisonment. If they are refused bail, they would be in custody as of 24th March 1998, a period of 9 month. In all these circumstances, is that justice, of course, not forgetting that they may be acquitted resulting in greater injustice. It would therefore not be in the interest of justice for the Applicants to be remanded in custody longer that justifiable in the circumstances.

I have also noticed in Court when they appeared yesterday before me that one of them is in crutches. The others do not look healthy at all. These are Defence Force Soldiers who are usually on medical treatment every so often. By being in custody for over 4 months, they have not been getting their treatment. Further custody would only deteriorate their health conditions. Again, is that justice and for whom. Even though they (applicants) may be Defence Force Soldiers, they are charged in the Civil Courts and not under the military courts or court martialled and so the laws of the land that apply to any ordering citizen of the land apply to them as well, as stated by section 203 of the Constitution. Section 203 of Constitution reads:

203. Application of general law

Since it is necessary that the Defence Force and the members of the Defence Force have no special position under the law except to such extent as is required by the nature of the Force as a disciplined force and its peculiar functions, duties and responsibilities, it is hereby declared that, except as is specifically provided by a Constitutional Law or an Act of the Parliament, the Defence Force and the members of the Defence Force are subject to all laws in the same way as other bodies and persons.

Therefore, if the Commander is of the view that their release may have a negative effect or influence on his efforts to restore normalcy in the Defence Force, he has the powers under the Defence Act, Ch. 74 with its Regulations and the Standing Orders to take any disciplinary action within the Defence Force.

In view of above circumstances and reasons given, I am of the view that Respondent has not established any grounds under section 9 (1) of the Bail Act. Further in the interest of justice in this case, I grant their application for bail.

I will now hear submissions on Bail conditions.

After hearing submissions on Bail conditions, I impose following:

1. All thirteen applicants to be Released on Own Recognizance.

2. A return Air fares to be purchased in the sum of K326 each, a total of 13 tickets at K4238.00 and provided to Assistant Registrar/Mount Hagen National Court for sighting before release from CIS custody.

3. The return tickets from POM to Hagen on 15th March 1998 to be placed in custody of Assistant Registrar, National Court, Waigani and to be obtained upon A/Registrar’s consent on or before 15/3/98.

4. Report to National Court Registrar, Waigani each Fridays on Government fortnights until matter is finalised.

5. Not to participate in any activities which interferes with the normal functions of the PNG Defence Force.

Lawyers for Applicant: Kunai Lawyers

Lawyer for Respondents: Public Prosecutor