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Maru and Oa v The State [2001] PGNC 151; N2045 (26 January 2001)

N2045

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

M. P. NO. 02 and 03 of 2001

PHILIP MARU AND ARUA OA

Applicants

-V-

THE STATE

Respondent

LAE: KANDAKASI, J.
2001: 25 AND 26 JANUARY

CRIMINAL LAW- Bail application - Application by applicant in person - Grounds or reasons advanced for bail not substantiated by evidence – No case for bail made out - Need to avoid appearance of double standard - Bail Act (Chp. 340) ss. 6, 9, and 16

Cases cited:

Steve Lester v. The State (unreported and unnumbered decision delivered on 22 January 2001) MP 856 of 2000.
John Raikos v. The State (unreported and unnumbered decision delivered on 22 January 2001) MP 206 of 2000.
Francis Kensi Pele v. The State (unreported and unnumbered decision delivered on 25 January 2001) MP 340 of 2000.
Re Fred Keating [1983] PNGLR 133

Counsel:

M. Mwawesi for the Applicants
J. Pambel for the State

26 January, 2001

KANDAKASI, J: Theses were applications for bail under s. 42(6) of the Constitution and s. 6 of the Bail Act (Chp.340) by the applicants. I heard the applications and refused them yesterday giving brief oral reasons for that. At the same time, I promised to publish my reasons in a written judgement before the end of the week for an appreciation of the reasons and to meet the requirements of s.16 of the Bail Act. This is the judgement I promised.

The applications were heard together, because the applicants are co-accused and their facts and grounds for their respective applications are similar. They are also co-accused to Steve Lester, whose application I refused on the 22nd of this month. The judgement is Steve Lester v. The State (unreported and unnumbered decision delivered on 22 January 2001) MP 856 of 2000. This immediately raises the need to avoid creating an impression that the Court is applying double standards if the applicant in the present case are dealt with differently. In Jeffrey Orasa v. The State (unreported and unnumbered judgement I delivered today) MP 344 of 2000, I refused the application inter alia, on the basis that his co-accused was refused bail. The reason for that is as I said in that case at page 4:

It is a well-accepted principle in criminal law in our jurisdiction that co-accuseds should be given similar treatment to avoid disparities especially in sentences. This principle equally applies to bail applications to avoid an appearance of unfairness and therefore injustice by giving different treatment and results to applicants for bail who are co-accused in the alleged offence. Applying that principle therefore helps to eliminate the appearance of having double standards and being accused for it.

I add of course that, each case has to be viewed on its on facts. However, that does not necessarily mean that a Court should over look what treatment has been given to a person in a situation such as the one under consider here. This is especially in relation to the circumstances in which the alleged offence was committed and the manner in which it is alleged to have been committed. The reasons for seeking bail may not necessarily be the same even in that kind of situation. Hence the need to consider each application on its own facts.

Relevant Facts

The applicants personally filed their applications for bail on the 11th of January 2001, using the form provided by the court. Their applications consist of their bail application forms, a letter for OIC Serious Crime Squad with Lae Police, Russell Egimbari dated 25th January 2001 and addressed to the Public Solicitor. There is some arguments or comments on that and I will come to that shortly as soon as I finish outlining the facts. Philip Maru has two addition letters in support of his application. They are from a Kelly Kaupa and Tom Ane. His co-accused, Arua Oa also has two additional letters in support of his application. They are from a David Hoa and Peter Abwa. The first letter is undated while the second is dated 10th January 2001.

The letters in both cases, say in effect that, both the applicants are innocent. They did not commit the crime the are alleged to have committed. Some other persons did. But no names or the identity or possible leads to arresting the persons they claim are responsible are given. They also speak of the applicants family cares, worries and or needs. For Philip Maru it is claimed that he is a village youth leader who came down to the city to visit relatives. He needs to go back to his village to continue his youth leadership. As for Arua Oa, it is claimed that he is the sole supporter of his aging parents. His arrested and incarceration is jeopardizing that and he needs to come out on bail to continue the support. None of these claims are supported by any credible evidence in order for the Court to accept and act on them.

The allegation against the applicants is that, having being armed with a gun on the 13th of December 2000, they held up the driver of a Mitsubishi L200 registered number CAJ. 851 stole and drove away in it. They then went to the Courts Furniture Store and held up the employees there and stole three electrical generators and drove away. Subsequently, following police investigations the applicants were arrested and charged and placed in custody.

I now get to the letter dated 25th January 2001, from Senior Sergeant, Russell Egimbari to the Public Solicitor. The letter states that the applicant and their accomplish, Steve Lester were arrested and charged on the 5th of December 2000. The author says, police do not oppose their application. He states however that strict terms have to be imposed. The parents are believed to be the guarantors for the applicants.

Counsel for the State was taken by surprise by that letter. This was so because of a number of factors. Firstly, the letter was addressed to the Public Prosecutor, which was not normal. Police would often communicate their position through the Public Prosecutors office, after the latter informs the Police of a bail application by a person arrested and charged for an offence. Secondly, police would not normally agree to bail until their investigations have been committed and are satisfied that the applicant will not breach bail conditions. In the present case, the applicants were arrested on the 15th of December 2000. It is not clear whether police investigations have been completed. The letter fails to address that aspect. If the investigation has been completed, notice of that was not brought to the Public Prosecutors Office. More importantly it would have been completed with unprecedented speed. Thirdly, neither of the Counsels was able to confirm if the signature was that of the purported author. Fourthly, the arresting and investigating officer should have written the letter or if not, it was with his knowledge and consent. There was no evidence to show that was the case. Finally, Counsel for the State was served with the applications only a few hours ago and that he was in no position to verify the authenticity of the letter and check on the other aspects raised in the applications, more particularly the claim that, the applicants were the wrong persons arrested for the crimes of others who were not specified.

The Relevant Law

What I consider to be the substantive law on bail is settled. I have had that discussed in my recent judgements. I have given a summary of the law in the case of Jeffrey Orasa v. The State (unreported and unnumbered judgment I delivered today as well) MP 351 of 2000, at pages 2 – 3. I have had that summarized in this way:

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 excludes the application of the technical rules of evidence;
   
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:
   
   1. The applicant being an habitual criminal;
   2. Whether the applicant is a trustworthy person and will meet any bail terms that may be imposed;
   100. The number of bench warrants outstanding for bail jumpers for the kind of offence the applicant is held in custody for;
   4. 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;
   5. The expenses and the trouble the society through the Police Force, has been put through to secure the applicant’s arrest and incarceration;
   6. Whether the proposed guarantors are serious in their proposal having regard to the amount of money they are able to pay in sureties;
   7. Whether the amount of cash bail proposed has any relative correspondence to the offence with which he has been charged; and
   8. 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.
      

That came from a reading and consideration of the judgements in The Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State (1997) N164; The State v. Beko Job Paul [1986] PNGLR 97; Re Fred Keating [1983] PNGLR 133. It also came from my own most recent judgments in Steve Lester v. The State (supra); John Raikos v. The State (unreported and unnumbered decision I delivered on 22 January 2001 here in Lae too) MP 206 of 2000 and Francis Kensi Pele v. The State (unreported and unnumbered decision I delivered today) MP 340 of 2000.

In my limited research however, it appears there is no clear case and or law has yet on the proper and correct procedure for bail applications. The Bail Act does not lay down any procedure for bail applications. It only provides for the right to bail. In other words, the Bail Act only provides for the right to bail without providing the manner and or the way in which that right can be exercised. The Criminal Practice Rules 1987 (hereinafter "Rules"), do not even provide for that. The general rule under Order 1 of the Rules states that all applications to the National Court in its criminal jurisdiction is to be made by originating summons. What is implicit in there is that all applications to the court would be in writing. But that is only in relation to applications under the Criminal Code Act (Chp. 262); the Probation Act (Chp.381) and any application under the Rules. Hence the rules provide no assistance.

The only case that has appeared to deal with a purely procedural aspect is The State v. Mene Mamaino [1990] PNGLR 185. In that case, Doherty AJ., (as she then was), was of the view that, pursuant to Order 1 Rule 12 of the Rules, the requirements for all applications under Order 1 Rule 11 to be by originating summons, means they have to be in writing, may be dispensed with in bail applications. That effectively means, a bail application could be made orally.

I have no difficulty with accepting and going by the above judgement, although for proper record keeping purposes some formal documentation should still be required. Of course, a bail authority is required and would no doubt, take notes and keep records of proceedings before him or her. Those could however, be the notes and or records he or she would have, to the exclusion of the registry staff who are required to keep records of all proceedings going before the courts. This may make it difficult to know whether a person as already applied for bail or not. For this reason, I would not be prepared to proceed to deal with an oral bail application, unless it is extremely difficult for any documentation to be filed, and provided always that the prosecution has been given sufficient notice of the application.

Section 6(2) of the Bail Act, provides that:

"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.

The term "informant" is commonly use in the lower courts especially in relation to criminal proceedings. In s. 1 of the District Courts Act (Chp. 40) there is no specific definition for that term. The closes we can come to is the definition given to the term "Complainant". That term is defined by s. 1 in these words, " ‘Complainant’ includes informant". That provision also defines the term "information" in these terms "‘information’ includes a complaint for an offence but not any other complaint and does not include a Traffic Infringement Summons". A complaint and an information commence proceedings before the District Courts according to s. 28 of the District Courts Act. A complaint can only be laid by a complainant whilst an information can only be laid by an informant for proceedings before the District Courts. All criminal proceedings get commenced before the District Courts, by way of committal proceedings before they get to the National Court except for ex officio indictments under s.256 of the Criminal Code Act. Clearly therefore, the term "informant" as used in s. 6(2) of the Bail Act is the person who lays an information against an offender. That is the person that must be informed for the purposes of s. 6 (2) of the Bail Act.

In practice however, he is not necessarily the person who prosecutes an offender. In the District Courts, policemen prosecutors conduct the prosecutions and the Public Prosecutor conducts all the prosecution before the National Court. Consequently, in my view, these are the persons that should be notified of any application for the purposes of s. 6(2) of the Bail Act. This does in my view make it more convenient for the applicant as he would not have to strictly go around looking for the informant who may not be readily available as the prosecutors, be it the police prosecutor or the public prosecutor would be. This also accords well with the need to get an application for bail heard without delay since the liberty of applicants are usually in question.

The period of notice is not specified. The Practice Direction CR 1 of 90 provides that there should be at least two clear days notice of a bail application. This must be read in my view, subject to the provisions of s.6(2) of the Bail Act. That provision as noted above, calls for reasonable steps to be taken to inform the informant. Consequently, if it is reasonable to give more than two clear days notice, that must be done. A bail authority needs to always bear in mind that justice can only be served when all the relevant facts and or evidence is place before him or here and a decision on an application is arrived at on the basis of the relevant facts or evidence. This in my view is critically important, in view of the frequency and number of out standing bench warrants for persons not answering bail.

The Present Case

Applying the principles discussed above to the present case, I refused the applicant on the 24th of January 2001. I arrived at that decision because of a number of factors. First no evidence was produced to support the grounds advance for the application. It was not in my view, a difficult thing to do because to technical rules of evidence are excluded by virtue of s.9(2)of the Bail Act, but the applicant failed to take advantage of that. Secondly, the offence the applicant allegedly committed involved dangerous or offensive weapons, namely a homemade gun and knives which were used to threat serious assault or danger to the victims if they failed to comply with orders to lie down and for the main victim to surrender the keys to a vehicle. This placed the application under s.9(1)(c) of the Bail Act. That meant that the application could be refused unless the applicant was able to show by appropriate evidence, that his continued detention was no justified going by the Supreme Court decision in Re Keating (supra) at pages 138 and 140, per Kapi DCJ and Andrew J. respectively. This led to the third ground for a refusal of the application, the applicant failed to produce any evidence and show that his continued detention in custody was unjustified. Fourthly, the amount of money proposed for cash bail and surety was a mere K100 each, which I consider insignificant, both in terms of the nature of the offence with which the applicant is charged and the need to show some seriousness with the applicant’s need to comply with any bail terms that may be imposed. A higher cash bail and surety may make an accused person who is granted bail to comply with the terms of the bail, if any, to protect or save guard against their forfeiture. This may eliminate the risk of him breaching his bail conditions, which is a risk a bail authority has to consider and if satisfied that there will be no breach of bail conditions, bail may be granted. Finally, nobody came forward to guarantee the applicants obligation to comply with bail terms if he was granted bail with terms. This adds to what has just been said. In order to show to the satisfaction of the bail authority that the applicant will answer bail until excused by the court, a person or persons with some standing and position in society has to come forward and provide such guarantees. Simply, naming people as possible guarantors without the people themselves coming forward and indicating their willingness to be guarantors and undertake to the court that they will personally see to the applicant meeting any bail conditions that may be imposed, is not good enough. A lacking in this area fails to assist a bail authority to be satisfied that there is no risk of the applicant failing to meet any bail conditions that may be imposed, and therefore grant bail.

In Steve Lesterv. The State (supra) at page 3 I said:

As was stated by Akuram J., in The Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State (supra) and Wilson J., in The State v. Beko Job Pau(supra) the list of circumstances under s. 9 of the Bail Act do not necessarily limit the factors a bail authority can take into account to decide whether or not to grant bail. Other factors may be taken into account in order to determine what does "the interest of justice otherwise requires". In other words, bail authorities should not proceed to grant bails as a matter of course. Instead as already stated above, it should carefully consider the interest of the applicant to be left out on bail and the interest of the society to have offenders dealt with according to law once brought before the Courts in a manner that is prompt, effective and less expensive. This may involve the bail authority taking into account all of the factors under s. 9 of the Bail Act and such other factors the bail authority considers appropriate before deciding whether or not to grant bail.

In the present case I have taken into account all of the above factors as well as the need to be more cautious in view of the long list of outstanding bench warrants for people who have been granted bail and have breach the terms of their bail. To some offenders it seems a grant of bail is taken as a license to freedom and are never seen again in court. They have been able to do that because bails have been readily granted without carefully considering the question of whether the applicant for bail is a person who can be trusted and one that will faithfully meet any conditions that may be imposed for his bail. It has also been possible because the terms, more particular the cash bail amounts and sureties have been almost negligible.

Finally by way of a final comment, I repeat the comments I made in John Raikos v. The State (supra) in relation to the arguments centred around family difficulties and needs at page 4:

...the grounds advance are factors that should have been consider well before the offence was committed, if indeed, the applicant was involved in the commission of the offence. I hold the view that such factors should not form the basis to grant bail. This is because the kinds of difficulties and hardships advanced are the natural consequence of committing a crime at the first placed. In holding that view, I am also mindful of the fact that an accused person remains innocent until proven guilty according to law. At the same time I am mindful of the fact that a legitimate process also provided for by the Constitution as been set in motion. There must therefore, be a presumption that the applicant has been charged and detained on some proper basis. I believe that is why the Bail Act as been enacted with the provisions of s.9 in it.
__________________________________________________________________
Applicant in person
Lawyer for the State: Public Prosecutor.