[1999] PNGLR 566

PAPUA NEW GUINEA

[national court of justice]

Paul Kasi

v

The State

lae: sakora j
20, 23 December 1999

Bail Application – Presumption of grant – Interests of justice – State to demonstrate and satisfy Court – Lawyer not to be counsel and witness – Constitution, s 42 (6) – Bail Act, ss 3, 4, 6 and 9.

Facts

The applicant was remanded in custody awaiting trial at the Buimo Goal on two serious charges of armed robbery and unlawful use of motor vehicle. Dangerous weapons such as firearms were used to threaten other persons in the commission of these offences. Hence when the applicant applied for bail, the State objected under s 9(1)(c)(ii) and (iii) of Bail Act. The applicant applied for bail on the following two grounds:

1.	That he was innocent of the two charges;

2.	That he needed constant or regular medical attention/treatment for injuries sustained. His counsel, Mr Siminjii also filed an affidavit in support of his client’s application.

Held

1.	The Court is at this juncture not concerned with the issues of guilt or innocence. The relevance of the presumption of innocence is accorded due acknowledgement here, but it remains for the trial court to determine these issues through the evidentiary process of our adversarial trial system.

2.	It is a good and prudent practice that the lawyer having the carriage of a litigation matter ought not be both counsel and witness. The danger and embarrassment of such a situation would become apparent if opposing counsel required that lawyer to be put on the witness box and cross-examined by opposing counsel on his affidavit.

3.	Pursuant to the provisions of s 42(6) Constitution and the Bail Act, there does not exist, nor is it envisaged, any strict requirement to set out the grounds or reasons for such an application. In view of the right or entitlement to bail guaranteed under these provisions, an applicant always starts with a presumption in his favour. And that is that he is entitled to be granted bail. It is then up to or incumbent upon the State who detains him to demonstrate to the satisfaction of the Court, on reasonable grounds, that the applicant ought not be released from custody or detention.

4.	As the concluding parts of the provisions under s 42(6) Constitution and s 3 Bail Act require and emphasise, the person in custody or under detention is entitled to bail unless the interests of justice require that bail should be refused. Thus, this right or entitlement is not absolute. The Court may refuse if the State demonstrates to its satisfaction that bail ought to be refused in the interests of justice. And, in my opinion, interests of justice include any of those factors or circumstances listed under s 9 Bail Act.

5.	In this application, the State has demonstrated to my satisfaction that, in the exercise of my discretion, I should refuse to grant bail to the applicant. There exist in the circumstances of the two charges those serious factors listed under s 9 (1) (c) (ii) and (iii) to persuade me that the interests of justice demand that I do not exercise my discretion in favour of the grant of bail.

Counsel

L Siminjii, for the appellant.
M Peter, for the State.

22 December 1999

Sakora j. You have been remanded in custody at the Buimo Corrective Institution because you have been arrested and charged by the Police with the commission of two very serious offences: armed robbery and unlawful use of motor vehicle. The District Court at Lae has yet to conduct and complete the committal proceedings in respect of these charges.

This application is made pursuant to s 42(6) Constitution and ss 3, 4 and 6 of the Bail Act. In support of the application three affidavits have been sworn and filed. These are the affidavits of your brother Abraham Kasi sworn 26 and filed 29 October 1999; the affidavit of your lawyer Mr Luke Siminji sworn 26 and filed 29 October 1999; and your own affidavit sworn 26 October 1999 and filed of even date. I have perused carefully the contents of these affidavits in the context of the application and submissions. It is, I think, convenient to summarize the pertinent aspects of the evidence hereunder:

1.	In your own affidavit you depose to the circumstances surrounding the police shooting of yourself at the UNITECH campus, and your subsequent apprehension and charging for the two offences.

You also depose to the nature of the injuries you say you received at the hands of the police; and subsequently medical attention and treatment following this Court’s order of 18 September 1999. You then indicate what further attention and treatment you require from now on in respect of those injuries.

2.	Your lawyer’s affidavit talks about receiving instructions from your family, firstly, in respect of bail application, and, secondly the urgent medical attention and treatment you require following the police shootings.

It is not without consequence that I note that your lawyer deposes to the specific nature and extent of your injuries, and other matters strictly and properly within the province of the medical profession.

Mr Siminji’s affidavit on the whole deals with matters that could not properly be said to be within his own personal knowledge and information. They are merely second-hand hearsay material.

3.	The affidavit of your brother, Abraham, deposes to the family history and circumstances. It also talks about the fact that you have residence and fixed address in Lae. Finally, he deposes to the injuries and the treatment of those. He ends with his intention to be a guarantor for your bail in the sum of K100.00, he will also put up K300.00 cash for bail if granted.

One other person mentioned in these affidavits as a possible guarantor, Mr Aetau Iga, is your stepfather.

The State objects to the grant of bail to you. It relies upon the statement of facts surrounding the incidents in question giving rise to the bringing of these charges against you. These facts demonstrate very serious circumstances. Dangerous weapons, firearms, were used to threaten other persons with physical violence when a motor vehicle was demanded and taken off the owner. Three days later, similar intimidating and threatening tactics were employed to rob the Lae Post Office and get away with a substantial amount of money, alleged to be K6,000.00.

The robbers escaped in the motor vehicle that had been stolen for this very purpose, that of enabling transportation to and fleeing from the scene of the armed robbery. It is the police allegation that you were involved in the two incidents with five others, and that you and three others were apprehended whilst the other two have escaped detection and apprehension.

Learned counsel for the State notes in his submissions that these firearms have not been recovered by the police, nor have the monies. Furthermore, it is the State’s submissions that the police statement of facts demonstrate the existence of factors or circumstances listed under s 9(1)(c) ii) and (iii) of the Bail Act. That is to say both incidents in question involved possession and threatened use of these to cause physical violence and that there was eventually a "shoot-out" with the police.

The grounds or reasons for the application for bail are said to be the following:

1.	Innocence of the two charges.

2.	Need for constant or regular medical attention and/or treatment.

These are not specifically set out in the application for bail (by way of a Notice of Motion) but are "understood" to be intended from what are said in the affidavits. Now, dealing with each of these, the first point to make is that the Court is at this juncture not concerned with the issues of guilt or innocence. The relevance of the presumption of innocence is accorded due acknowledgement here, but it remains for the trial court to determine these issues through the evidentiary process of our adversarial trial system.

The second point is that the need for medical attention and treatment can be attended to whilst on remand. Under the now-available medical and health circumstances of the applicant, it would be, I would suggest, a very foolhardy and negligent Gaol Commander who did not have the necessary action taken to ensure this applicant did not have prompt access to medical attention and treatment as and when needed.

The third point to make is in respect of Mr Siminji’s affidavit. Further to the comment that his affidavit contains second hand hearsay material and, therefore, cannot be accepted, it is a good and prudent practice that the lawyer having the carriage of a litigation matter ought not be both counsel and witness. The danger and embarrassment of such a situation would become apparent if opposing counsel required that lawyer to be put on the witness box and cross-examined by opposing counsel on his affidavit.

Further to the comments about the first ground or reason for the application, it ought to be added that, pursuant to the provisions of s 42 (6) Constitution and the Bail Act, there does not exist, nor is it envisaged, any strict requirement to set out the grounds or reasons for such an application. In view of the right or entitlement to bail guaranteed under these provisions, an applicant always starts with a presumption in his favour. And that is that he is entitled to be granted bail. It is then up to or incumbent upon the State who detains him to demonstrate to the satisfaction of the Court, on reasonable grounds, that the applicant ought not be released from custody or detention.

As the concluding parts of the provisions under s 42(6) Constitution and s 3 Bail Act require and emphasise, the person in custody or under detention is entitled to bail unless the interests of justice require that bail should be refused. Thus, this right or entitlement is not absolute. The Court may refuse if the State demonstrates to its satisfaction that bail ought to be refused in the interests of justice. And, in my opinion, interests of justice include any of those factors or circumstances listed under s 9 Bail Act.

In this application, the State has demonstrated to my satisfaction that, in the exercise of my discretion, I should refuse to grant bail to the applicant. There exist in the circumstances of the two charges those serious factors listed under s 9(1)(c)(ii) and (iii) to persuade me that the interests of justice demand that I do not exercise my discretion in favour of the grant of bail.

You are, therefore, remanded in custody and to attend Court whenever required. In this judgment also, I make the specific order that the Commander of the Buimo Correctional facility exercise the powers vested in him by law to ensure that this remandee receives the necessary medical attention and treatment whenever required.

Lawyer for the applicant: Public Solicitor.
Lawyer for the State: Public Prosecutor.