Unreported National Court Decisions
N1655
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
MP NO. 447 OF 1997
ORU WOUMEN, ISHMA BONAI, MELSOME SATE 
AND SENNY KEM
-V-
THE STATE
Waigani
Batari AJ
23 October 1997
PRACTICE AND PROCEDURE - Bail - Applicants charged with different offences - Applicants may be heard together where offences are closely connected.
PRACTICE AND PROCEDURE - Bail - Background of charge - Absence of police information containing charge and brief facts - Affidavits attesting to brief of charge - Sufficiency of.
PRACTICE AND PROCEDURE - Bail - Where charge is admitted - Question of discretion - Condition of detention relevant consideration on whether or not to grant or refuse bail.
Counsel
Popeu, for the State
N. Kubak, for the Applicants
RULING ON BAIL APPLICATIONS
23 October 1997
BATARI AJ: The applicants have applied for bail under s.3 of the Bail Act and s.42(2) of the Constitution. The applicants are currently held in custody at Kiunga Police Station pending their committal. The hearing of their application is held under s.14 of the Bail Act.
The applicants Oru Woumen and Ishma Bonai, both 22 years of age have been charged with robbery. The applicants Senny Kemi, 28 years and Melsome Sate 26 years have both been charged with receiving different amounts totalling Twenty-Six Thousand (K26,000.00). All the applicants reside within or adjacent to the boundaries of Kiunga Township, Western Province.
I have decided to hear the applicants together as the offences alleged against each were closely connected. The alleged offence of receiving involved proceeds from the alleged robbery. There was also some indication of collusion amongst all the applicants to commit the offences charged.
The background to the charges are not in evidence. Such information is usually attested to in the affidavits filed in support or is attached to or contained in the Police Information Sheet charging the offence. In the absence of those facts supporting the charge, this application may have been prematurely brought for adjudication. However, Annexure ‘A’ of Counsel’s affidavit and the statement of Detective Constable Richmond Wairaf contained information on the robbery. Counsel’s affidavit also indicate the applicants will admit the charge. The materials before me in my view, sufficiently form the background to the charges and the basis to hear the applications.
State has contested the applications on the basis that the offences involved threats of violence to another person and possession of firearm, whether real or imitation. State further objected on the grounds that the offences involved a substantial amount of money, being Sixty-one Thousand (K61,000.00) and that, half of that amount has not been recovered.
Under s.9 of the Bail Act, bail shall not be refused unless the bail authority is satisfied on reasonable grounds that one or more of those considerations therein are proven. State relies on ss.(1)(C)(ii) & (iii) as its first ground of objection to Oru Woumen and Ishma Bonai being released on bail. The information charge contains a statement that these two applicants were armed with a home-made pistol. This is supported by Attachment ‘A’ document in Counsel’s affidavit and also the statement of Detective Constable Richmond Wairaf.
Further, these two applicants appear to admit the robbery but deny use of firearm. The denial in my view is relevant only to question of aggravation and does vitiate the admissions to the basic elements of the charge. I infer from these that threats of violence existed at the time of robbery. In any case, robbery necessarily involved violence or threats of violence to the victim. I am satisfied that these elements are proven against the applicants Oru Woumen and Ishma Bonai.
As regards Melsome Sate and Senny Kein, the objection was raised on the basis of s.9(1)(g) of the Bail Act. This also formed the second ground of objection against release of Oru Woumen and Isham Bonai on bail.
Because of the admissions of the accuseds, I am reasonably satisfied that this ground is made out against each applicant. Some Thirty Thousand (K30,000.00) it is indicated in Attachment ‘A’ of Counsel’s affidavit have not been recovered. All the applicants live in the same area being Sare Corner, in the township of Kiunga. They are no doubt known to each other and are perhaps close friends or even related. There were some suggestion of collusion by the four applicants to steal the money so that they can profit as their expected support grants or election promises had not eventuated.
On the whole, the grounds against bail is made out in respect of each applicant. I would refuse bail unless the interests of justice otherwise require.
I have considered all that were submitted on behalf of the applicants. The only real contention of merit in my view is the conditions of their detention. Otherwise, grant of bail weigh against them in the interest of justice because of their admissions and the likelihood of further dealing with the money that has not been recovered.
The applicants are kept in Kiunga Police cells. They are not on remand at the Corrective Institutional Service due to the closure of Daru and Nigerum Gaols. Their detention at the Police cells might be illegal. Unfortunately, I was not able to get any further assistance on whether, Kiunga Police Station is a Gazetted Rural Lock-up. However, what is in their favour is the harsh conditions of their detention brought about by the current drought which some weeks ago had led to the closure of Nigerum Gaol. At this time of what is clearly a national disaster because of food and water shortage in many affected areas, the dignity, misery and sufferings of a human being is a relevant factor. The statement of Detective Constable Richmond Wairaf laments the welfare of detainees at Kiunga cells and in particular, the applicants. They face starvation due to lack of food and water. Procrastinated governmental support has also added to the worsening situation. Besides, the cells are said to be crowded, exposing detainees to health risks.
The applicants are still awaiting committal proceeding and the indications are that this would be prolonged by the present situation. The implications are quite clearly that they will be denied proper treatment of their human dignity under the Constitution.
I am inclined to grant bail. However because of the admissions of the applicants in respect of charges and the possibility that Thirty Thousand (K30,000.00) may be further dealt by the applicants, I ought to be satisfied that the terms of bail and proposed guarantors are adequate. Bail is refused unless I am satisfied on these remaining issues. I will hear further from Counsels.
RULING
Following further submissions, I am satisfied that bail should be granted but on the following conditions:-
(1)      Cash Bail of K600.00 each.
(2)      Cash Bail to be paid before release from custody.
(3)      Guarantors approved as follows:-
(i)       Applicant Oru Woumen - Jack Kuapit and Akin Atia are approved to be guarantors to undertake to pay Five Hundred Kina (K500.00) each in the event of a breach of any of the bail conditions.
(ii)      Applicants Ishma Bonai, Melsome Sate and Senny Kem - I approved as guarantors, Seai Ambel and Wose Bonai to promise to pay Five Hundred Kina (K500.00) in the event of a breach by an applicant of any of the bail conditions.
(4)      To report to the Police Station in Kiunga every Monday between 8.00 am and 4.00 pm.
(5)      Applicants are not to leave Kiunga or live outside the township until completion of their committal proceedings and trial in the event of their committal.
(6)      In the event of any or all of the applicants being required in the National Capital District for instructions with Counsel, they are to report to the Police Station at Boroko.
(7)      The applicants are not to interfere with witnesses who may happen to be in Kiunga town.
Lawyer for the State: Public Prosecutor
Lawyer for the Applicants: A/Public Solicitor