N2077

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP 145 of 2001

JOE PUKSY PURARI

v.

THE STATE

WAIGANI: KANDAKASI, J.
2001: March 8th and 27th

CRIMINAL LAW – Bail - Applicant charged with armed robbery, attempted murder and unlawful use of motor vehicle – Applicant has prior conviction for unlawful use of motor vehicle - Failure to show continued detention in custody unjustified – Insufficient surety and cash bail proposed – No evidence adduced to confirm identity of proposed guarantor - Application refused – Constitution s. 42(6) and 37(4) – Bail Act s. 6 and 9. 

Cases Cited:
Philip Maru and Arua Oa (2001) N2045
Re: Keating [1983] PNGLR 133

Counsel:
Mr. Walne, for the State
Mr. Tekwie, for the Applicant

27th March 2001

KANDAKASI, J.: This is an application for bail pursuant to s. 42(6) of the Constitution and s. 6 of the Bail Act (Chp.340). I heard the application and refused it on the 8th March 2001. I undertook to publish my reasons in writing after announcing my decision orally and the reasons for that. This is the full written text of the judgement.

The Facts

The applicant has been charged with one count each of armed robbery pursuant to s.386(1)(2)(a)(b)(c) of the Criminal Code (Chp. 262) (hereinafter "the Code") attempted murder under s.304(1) and illegal use of motor vehicle under s.383(2) of the Code. He already has a prior conviction for this offence.

The State alleges that on or about the 1st of September 2000, at about 10.30am the applicant in the company of two others entered the premises of a company at Gordons, held up the security guard together with two other persons and stole from them K1,420.00 being wages for employees and K160.00 belonging to one of the victims. They then ran along the Mabata Street to Henao Drive joined by another two, got into a get-away vehicle and drove off. The victim of the robbery got into a vehicle and chased the robbers into the Poreporena Freeway. A passing police vehicle was alerted and the police then gave chase to the applicant and his accomplices. The applicant and his accomplishes made a U-turn on the same lane and proceeded back along the Henao Drive where the vehicle was abandoned and the applicant escaped on foot across the Sir Hubert Murray Highway and into the NBC building at Five Mile. The police subsequently entered the NBC building, apprehended the applicant, took him to the police station and formally arrested and charged him. None of the money stolen was recovered.

The alleged act of attempted murder was committed as the vehicle in which applicant and his accomplices were, made a U-turn and the victim of the holdup at Gordon’s vehicle was shot at and the victim sustained injuries to his left hip.

The applicant advances three main grounds for a grant of his bail. These are:-

1.	He is innocent and that he will vigorously defend the charges against him;
2.	He will faithfully comply with any conditions that may be imposed for his bail; and
3.	He has to come out and care for his family.

The applicant’s own wife a Theresa Aro proposed to be a guarantor. An Alexson Mark also proposed to be the second guarantor for the applicant’s bail. He is a pastor of the Christian Outreach Centre, Hohola in the National Capital District. There is no evidence however, to confirm who he is and what he claims to be. Both guarantors propose sureties of K300.00 each. There is no cash proposal for bail.

The Law

I have already summarised the relevant principles governing bail in a number of judgements I have recently delivered. An example of that is Philip Maru and Arua Oa v. The State (26/01/ 01) N2045 in terms of the following:-

(1)	A person arrested and charged with an offence is entitled under s.42(6) of the Constitution to bail at any time except for willful murder and treason but a bail authority still has the discretion to refuse bail "if the interest of justice otherwise requires";

(2)	The Bail Act (Chp.340) by s.9 sets out the circumstances in which bail may be refused;

(3)	The existence of one or more of the circumstances under s. 9 of the Bail Act may form the basis to refuse bail but that is not automatic. There is discretion in a bail authority to grant bail if an applicant for bail is able to show by appropriate evidence that his "continued detention in custody is not justified";

(4)	The burden to produce appropriate evidence to form a foundation for a grant of bail is not a difficult and complicated one because by virtue of s.9(2) of the Bail Act the application of the technical rules of evidence are excluded;

(5)	The list of circumstances under s.9 of the Bail Act is not exhaustive and other factors such as the following may be taken into account before deciding whether or not to grant bail:

(a)	The applicant being an habitual criminal;

(b)	Whether the applicant is a trustworthy person and will meet any bail terms that may be imposed;

(c)	The number of bench warrants outstanding for bail jumpers for the kind of offence the applicant is held in custody for;

(d)	The costs and expenses the society may be put through in trying to bring the applicant to justice if he breaches his bail terms which may mean delays in a speedy trial which may have the risk of the State loosing vital evidence supporting the charge against the applicant; 

(e)	The expenses and the trouble the society through the Police Force, has been put through to secure the applicant’s arrest and incarceration;

(f)	Whether the proposed guarantors are serious in their proposal having regard to the amount of money they are able to pay in sureties;

(g)	Whether the amount of cash bail proposed has any relative correspondence to the offence with which he has been charged; and

(h)	Whether the applicant would have already served his penalty without a trial by reference to the offence with which he has been charged and the possible date for his trial.

The Present Case

In the present case, the applicant has a prior conviction for unlawful use of a motor vehicle. One of the three charges he faces is for unlawful use of a motor vehicle. His prior conviction appear not to have served as a deterrent, if indeed, he has committed the offences he has been charged with. The applicant claims that he went to NBC looking for a casual job to support his family. Yet there is no evidence to confirm or support him on that. The applicant was chased after and apprehended by police. Therefore, there is a reasonable basis for one to argue that, the applicant was involved in the commission of the offences he has been charged with. The offences with which he has been charged with are serious and make the application caught by s.9(1)(c) of the Bail Act.

In line with the case authorities starting with Re: Keating [1983] PNGLR 133, it was incumbent upon the applicant to show that his continued detention in custody was unjustified. I would add also that, it was incumbent upon him to show that he would be faithful to, and comply with any conditions that may be imposed for his bail. This was not a difficult thing to do given that the technical rules of evidence do not apply by virtue of s.9(2) of the Bail Act.

The applicant failed to produce any evidence showing that his continued detention in custody is unjustified. His argument that, he is innocent and he will vigorously defend the charges against him cannot be a basis to grant bail. That is an issue for trial and as such a grant of bail on the basis of he claim of innocence, would in my view pre-empt a decision on the charges after a trial. Indeed, the Constitution does recognise that an accused person is presumed innocent until proven guilty. The Constitution also provides that such a person should be granted bail unless circumstances provided for under an Act of Parliament, which is now the Bail Act, exists. That recognises the fact that, charges legitimately brought against a person raise the presumption that the State is acting on some proper basis. Thus, if an applicant for bail fails to rebut that presumption that should in my view operate against a grant of bail. The applicant in the present case has failed to rebut the presumption that the State is acting against him on some proper basis.

There is no evidence of the kind of character the applicant is. Therefore, there is no basis for me to conclude that the applicant is a trustworthy person and he will comply with any bail terms that may be imposed. There is certainly evidence that he is a convicted criminal. The amounts proposed for surety is a mere K300.00 each by the proposed guarantors, whose actual identity and standing in the community and their ability to ensure that the applicant complies with any terms that may be imposed for his bail, if bail were to be granted. In the light of three serious charges for the armed robbery and attempted murder and unlawful use of a motor vehicle, an higher amount of surety from people with some standing in the community and having the means to ensure that the applicant complies with his bail terms, if that was to be granted, is called for. The amount of surety actually proposed is insufficient. 

Further, there is no amount proposed for cash bail. I have already expressed the view in many of my recent decisions as in Philip Maru and Arua Oa v. The State (supra) case at page 6 that, amounts proposed for surety and cash bail have to have some correspondence or must commensurate the seriousness of the charges with which an applicant has been charged with. If the amounts proposed are significant, it may go to support a finding that the applicant for bail will comply with bail terms to avoid the risk of such amounts being forfeited. 

Furthermore, I have also expressed the view that, if people of good standing in the community came forward to the court and proposed themselves to be guarantors if bail is granted to an applicant, that may also favour a grant of bail. In this case, the amounts proposed for surety is negligible. Also, there was nothing proposed for cash bail, which was in my view, a serious missing element. Still further, one of the guarantors is the applicant’s own wife and the other is a Pastor. The latter may be a person of some standing in the community. Nevertheless, there was nothing given in evidence either by way of identification or anything like that, to show that he is what he claims to be and he does have the means to see to the applicant complying with any terms that may be imposed for the applicant’s bail. On this basis, I rejected the second ground advanced for the applicant’s bail.

Finally, it is a common claim by all bail applicants that their family will suffer unless they are released from bail. There is the presumption of innocence on the one hand and on the other hand is presumption that a legitimate process has been set in motion on some proper basis. If an applicant’s family is put to some suffering of some sort by their arrest and detention, it is their own doing. The effects of their conduct should not form the basis for an exercise of the discretion vested in a bail authority, to decide whether or not to grant bail. Accordingly, I also rejected the third ground advanced in support of the application for bail. I arrived at that decision, as I was of the view that the ground or argument advanced was not a valid ground for bail. 

In the upshot, I was not satisfied that a case for grant for bail was made out. Accordingly, I refused the application and dismissed it. The applicant was ordered to continue to remain in custody awaiting his trial or otherwise to be dealt with according to law.
____________________________________________________________________
Lawyers for the State:			PUBLIC PROSECUTOR
Lawyers for the Accused:		PUBLIC SOLICITOR