N2040

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NO. 206 of 2000

JOHN RAIKOS
Applicant

-V-

THE STATE
Respondent

LAE: KANDAKASI, J.
2001: 18 and 22 JANUARY

CRIMINAL LAW – Bail application – Application by applicant in person – Grounds or reasons for bail not substantiated by evidence – Strict rules of evidence do not apply – Long list of bench warrants following breach of bail terms considered - Court need to consider interest of society to deal with offenders according to law once before the court – Stricter and higher bail terms may now have to be imposed – Constitution s. 42(6) and Bail Act (Chp.340) ss. 9 and 16. 

Cases cited:
Steve Lester v. The State (unreported and unnumbered judgement delivered 22/01/01 her in Lae) MP 856 of 2000
The Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State (1997) N1641
The State v. Beko Job Paul [1986] PNGLR 97
Re Fred Keating [1983] PNGLR 133

Counsel:
Applicant in Person with Mr. Mwawesi assisting 
J. Pambel for the State

22 January, 2001

KANDAKASI, J: This was an application for bail under s. 42(6) of the Constitution and s. 6 of the Bail Act (Chp.340) by the applicant himself with very limited assistance from Mr. Mwawesi from the public Solicitors Office as a friend of the Court. I heard the application and refused it on the 18th of January 2001. My reasons in brief for that were given orally at that time. This constitutes my full reasons for the decision in accordance with the requirements for reasons to be given in writing under s.16 of the Bail Act. 

As I said in the matter of Steve Lester v. The State (unreported and unnumbered judgement delivered today) MP 856 of 2000, the right to bail is guaranteed by s. 42(6) of the Constitution. That is for all persons arrested and charged with an offence, except for treason and wilful murder in these terms: 

(6)	A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.
(emphasis mine)

From the words highlighted, it is apparent that the right to bail is not automatic. Consequently, a bail authority should not proceed to grant bail as a matter of course. Instead, a bail authority has to determine the question, whether or not "the interest of justice otherwise requires" a refusal of bail. I then referred to the judgments of Akuram J., as he then was, in The Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State (1997) N1641 and Wilson J in The State v. Beko Job Paul [1986] PNGLR 97 as well as the Supreme Court in Re Fred Keating [1983] PNGLR 133 per Kapi DCJ., at page 138 and per Andrew J., at page 140 which set out the relevant law. They appear at pages 2-3 of my decision in Steve Lester v. The State (supra). I need not repeat them here. However, I will repeat what I said in that cases on the basis of those authorities at page 3 in these terms:

As can be seen from the above, there can now be no dispute that the Bail Act, s. 9 in particular sets out the circumstances in which bail may be refused. The existence of one or more of the circumstances specified by s.9 of the Bail Act may form the basis to refuse bail in the exercise of the discretion vested in the bail authority. At the same time, I remind myself that the existence of any one or more of the factors under s. 9 of the Bail Act, do not automatically operate against the grant of bail. It only imposes a burden on the applicant to show that his detention in custody is not justified and that the interest of justice requires his release. 

Further, as I said in that case on the basis of the authorities cited, the list of circumstances in s. 9 of the Bail Act, is not exhaustive. Other factors which a relevant to the question of whether or not bail should be granted "in the interest of justice", may be taken into account. These may include factors such as:

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;
3.	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.

For the case before me, the applicant advanced the following grounds or reasons for applying for bail:

1.	There is over-crowding in the cell blocks;
2.	The conditions at Buimo Jail are unhygienic, with no towels, laplap and proper food;
3.	He has a six week old baby with the baby’s mother with no one caring for them;
4.	The only person caring for them, his father in law died on the 21/02/00.

At the time of the hearing, I asked the applicant to take the court through his application. He only repeated his grounds and or reasons without any elaboration. In respect of the last ground, I asked him whether he was still prepared to raise it, in view of the passage of almost a year from the date of the supposed passing away of his father in law. The applicant said he was maintaining it in the context of showing that his wife and child has no one to care for them whilst he is in lawful detention. As with the applicant in the Steve Lester v.The State (supra), the applicant in the present case has not produced any evidence to substantiate the basis for his application.

The only material constituting his application are his bail application form, a letter dated 29th of February from a Jack Wahem of Bundi Camp Settlement, and a copy of the information sheet charging him with armed robbery with actual violence a sum of K5,000.00 from a Yoanes Munkiak. None of these material substantiates any of the reasons advanced for seeking bail. The letter from Jack Wahem only restates the grounds or reasons for seeking bail without providing any evidence in support of any of the grounds.

Once again, as I did in the Steve Lester v. The State (supra) cases, I note that, it is not too difficult for an applicant for bail to adduce whatever evidence he considers appropriate in support of his application since the technical rules of evidence do not apply by virtue of s. 9(2) of the Bail Act. However, for reasons only know to the applicant, he did not produce any evidence. There is no proposed guarantors supporting the application either. 

The State opposed the application on the basis of s.9 (1) (c) of the Bail Act. Mr. Pambel argued that the offence with which the applicant was charge with was a serious one, which involved the use of firearms and actual physical harm being inflicted upon the victims of the offence. The applicant is awaiting trial on a possible charge for armed robbery under s. 386 of the Criminal Code Act (Chp. 262). This in my view, forms the basis in line with cases like that of The State v. Beko Job Paul (supra) and the Supreme Court decision in Re Fred Keating (supra) to refuse bail unless, the applicant is able to show by appropriate evidence that his continued detention in custody is not justified and is against the interest of justice.

As I said in Steve Lester v. The State (supra) case at page 5:

The applicant therefore has the burden to show and convince this Court that his continued detention in custody is not justified and the interest of justice requires his release on bail. If the grounds relied on for bail by the applicant is intended to discharge that burden, I have two difficulties. First, there is no evidence whatsoever in any form to prove their existence. Secondly, I fail to see how all or any of them could be regarded has a factor or factors showing his continued detention in custody is not justified and that it is in the interest of justice that he should be granted bail. 

To that I add, 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 kind 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.

I find and or note that the applicant as not made good use of the provisions of s. 9 (2) of the Bail Act. Consequentially, I find there is no credible evidence to persuade this Court that if the applicant is granted bail, he will meet all the terms that may be attached to his bail. I consider this very important because of the long list of outstanding bench warrants, which adds to almost 300, most of whom appeared to have jumped bail. This calls for more care and caution to be exercised before acceding to the application. I am not satisfied that as a matter of fact the applicant, if granted bail will faithfully meet any terms that may be attached to his bail, including his appearing in court to be further dealt with in relation to the charge against him until excused by the Court. If not withstanding that, bail was granted, it would defeat the whole purpose of law enforcement efforts of bringing offenders to the Courts to be dealt with according to law. This is so because there is the risk of the applicant avoiding the full process of the law in relation to the charge against him in the absence of any evidence and consideration to the contrary.

Again as I said in Steve Lester v. The State (supra) at page 5:

I do not believe that it was intended that bail should be granted without regard to the question of whether or not the applicant for bail will ever answer bail until excused by the Court in the due course of time and process. Indeed, s. 9 of the Bail Act does have provisions relating to that issue. The practice of calling for guarantors and people giving guarantees and undertakings to ensure bail conditions are being met seem not to be serious with their undertakings and or guarantees perhaps because of the penalty or the consequences they stand to face appear not to be serious. It is high time now for cash bails and sureties to be increased upward to the thousands to give some seriousness and importance to the need to meet bail conditions. If most other jurisdictions impose such higher conditions, I see no reason why the level of cash bails and sureties should not be increased in our jurisdiction to either eradicate or minimized the number of bail jumpers. 

I do appreciate that some may argue that imposing such terms may in effect amount to a refusal of bail because of inability of offenders to raise the amounts required and therefore a breach of the Constitutional right to bail. Such an argument has to be viewed in the overall interest of the society and serious negative impact crime in general is having on our society. One should also need to consider the large number of people breaching bail terms after the police have done their best in apprehending offenders and bringing them before the courts. Granting bails without any regard to the difficulties and expenses the society through the police go through to bring offenders to the Courts would amount to injustice to society for the sake of an offender. The courts are required to administer justice and it behoves the courts to consider and take such issues into account before granting bails in the interest of justice not only from the perspective of an offender but also the society, which are not necessarily the same.

I then found in that case that, there was no evidence in any form or manner to substantiate any of the grounds the applicant advanced in support of his application. I also found in that case that, the applicant failed to show in any way his continued detention in custody was not justified. On the available evidence I found that, the applicant was a member of an armed gang, which was involved, in two separate robberies. Those robberies put at risk the lives of a number of people. A quick perusal of the outstanding bench warrants list showed a large number of them were people who were charged with armed robberies. In all the circumstances, I decided to refuse the application. 

In this case, I made similar findings with the exception that, this was a case of a single incident of armed robbery and was with actual violence. Taking into account all the circumstance surrounding the application, I refused to grant bail in the exercise of my discretion.
____________________________________________________________________
Applicant in person
Lawyer for the State:	Public Prosecutor.