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State v Bora [1997] PGNC 19; N1515 (27 February 1997)

Unreported National Court Decisions

N1515

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP NO. 104 OF 1997
THE STATE
v
CHRISTOPHER BORA

Waigani

Batari AJ
26-27 February 1997

CRIMINAL LAW - Practice and Procedure - Bail Application - Pending committal - Offence of robbery - alleged acts constituting offence - Proof of - Onus - Failure to show cause - Discretion - Bail refused - Bail Act, Ch. No. 34.

Counsel:

B Takin for the Applicant

Ms Suwae for the Respondent

RULING ON BAIL APPLICATION

27 February 1997

BATARI AJ: The Applicant seeks to be released on Bail pursuant to s.6 of the Bail Act, pending completion of committal proceedings in the District Court at WAIGANI. He has been charged wit cone count of armed robbery. Hl next appear at the Comm Committal proceedings on 7 March, 1997. The application is opposed by the State, Respondent.

The circumstances of the alleged offence are set out in the avit of the Applicant’#8217;s lawyer which in essence adopted the statement of facts prepared by the police in support of the information charging the offence. The allegations in brief are that, the applicant held up employees of Rainbow Estate Big Rooster Shop and stole from them K2,000.00. He was with three others rnd armed with firearms. Shots discharged when p in p intervened, resulting in t in the death of two of the robbers while the Applicant allegedly escaped in a stolen vehicle with the fouobber0; The robbery wary was committed on 18 December, 1996.&#16. Thlicant was arrested and and detained on 3 February, 1997.

The Applicant is aged about 32 years and comes from Daboit Village, Iomba in the Oro Province. He is married with five cen and resides at Oro SettlSettlement adjacent to the PNGDF Air Transport Squadron premises at Jackson’s Airport. He prevy worith Ilimo Farm Farm until his termination at the end of 1996. It is not known what occt occupation (if any) he had at the time o arrest. I would assume for the purpose of this application, he was unemployed.

Noth>Nothing else was said about the accused’s personal history or particulars of his wife and his children, their welfare, their ages, their names and whether or not the wife is working or the children are in school.

The Applicant’s lawyer submits his client should be released on bail because:

(i) ҈ h60; he has a fixedeplacabof abode;

(ii) &##160;; he is u is unlikellikely to abscond Bail;

(iii) & #160; requ requires mres medical treatment which can only be obtaif giveedomovement;

(

(iv) he would oul uput uputuffisufficient funds for cash Bail and would comply with reporting conditions.

And further that none of the grounds under s.9 of the Bail Act applies.

State opposes the application on the grounds that:

(i) the allegatioas ag tnstAppe Applicant involved threat of violence and possession of firearm;

(ii) &##160; inatstigestigationstions into the Applicant’s involvement has not been completed.

I infer from attachment &#8&#821 the c Prosecutor’s Affidavit that the application is opposed also on o on the bthe basis asis that the proceeds from the robbery has not been recovered and if released from custody, the applicant is likely to conceal or otherwise deal with it. It is alsred the applicanticant might interfere with witnesses if allowed Bail.

The applicant has a favourable start under the Bai, in this application. The openords in the Act whct which confirm that advantage stat state:

“Being an Act:

(a) to provode fil Ba betorantgranted more readily...” (emphasis mine)

Section 42(6) of the Constitution, also confers on the accused person entitlement to Bail at all times following his arrest and/or detention in custody. Howevedoes ollow that bail bail is to be given in every case as a as a matter of course or as a matter of right because under s.9 of the Bat, if one or more of the matters stated are satisfied, the exercise of discretion should beld be made against grant of bail. It is sufficient that one of the considerations under s.9 is proven and it does not matter which one. In Re: Keating [1983] PNGLR, 133 Kapi, DCJ held at p.138 that:

“The exercise of the discretion to grant bail should be used readily unless any f the matters under s.9 is established. The Act treats each conatieration as equal. Oal. One is not to be considered as less serious than the other for the purposes of refusing bail. That iseffect of s.9.&#160 However s.9rovides for refr refus bail on “one or more more” of these considerations. This envs a case where obje objection to bail may be taken on than f these consideraiderations. I am ofopinion that that what when one of these considerations is established, the court should exe its discretion to refuse fuse bail.”

The Respondent’s lawyer objects to the application on a number of contentions. However, its stronger argument in my view is that two of the alleged acts constituting the offence were:

(i) &ـ t60; threat reat of violence to another person; and

(ii) possession ofra fi

However, there is a discretion to admit the applicant on bail even if one or more of the considerations under s.9 of the Bail Act, is proven and the os on the applicant to show show cause why his detention in custody is not justified. See re: Ke, ibid, where Anre Andrew, J stated at page 140:

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

The Applicant says that he has a fixed place of residence and that his wife and his five children are the reason he would not abscond. He would also comith oBail Bail conditions tons that might be imposed for their sake. However as I have indicated earlier, there is bare minimumrmation about his family background and welfare. There is no informatouchinuching theg their present circumstances and how theifare and livelihood might be affected by further incarceratceration of the Applicant. Further, the iation on hisn his proposed of residence is insufficieficient. xact loation and address ress remains uncertain, as a result. These are relevant consideratwhich in my view will assist the Court exercise its discretscretion one way or the other on a bail application.

The Applicant also submits he should be released from custody on medical grounds. Whilst I accept that he might have been assaulted upon his arrest, there is no evidence of injuries sustained. The Applicant is represented. He could have ged medical ical examination and obtained a report but this waspursued. #160; His lawyer’missbmissions were based solely on instructions that tplicant has untreated injuries which presently cause him paim pain and discomfort. If that were so, the m shor should have been giveority in support of this apis application. Without medical proof of phe Applicant’s injuries and the effect of detention s general health, I am not inclined to give this ground mucd much weight.

The Applicant is charged with a very serious offencepolice is yet to complete iete its committal file. The delay inarrest his laws lawyer contended supports lack of evidence against the applicant. I consider itterial that hhat he was not arrested immediately. The delay in rrest could buld be exed from the alleged facts tcts that two of the robbers fled the scene in a stolen vehicle. Immediate arre the circumsrcumstances wouve been difficult. Delay in the arrey have alve also also resulted from continuing investigations which led to his apprehensionordons Market on 3 February, 1997. I statement oent of facts acts tendered, it was also alleged the Applicant, up to the time of the arrest, was on the run. That may also explain the delay on his arrest. In making this observatI b, I bear in mind that the guilt or innocence of the applicant is not on issue here.

I am not satisfied that the Applicant has shown his further detentn custody is not justified.

I refuse the Applicationation. Applicant is at liberty to make further application for Bail.

Lawyer for the State: Public Prosecutor

Lawyer for the Applicant: BT Gobu & Associates