N2701

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP No 389 of 2004

IN THE MATTER OF AN APPLICATION FOR BAIL

BETWEEN:

VELA WARI VELE

AND:

THE STATE

Waigani: Mogish, J
2003: 4th & 8th November

Criminal Law - Practice and Procedure- Objection to bail, s. 9 (1)(f) of the Bail Act Chapter No. 340- Based on investigators belief-No evidence adduced to establish interference - Discussion on distinction between a belief and evidence to substantiate a belief.

Held:	 1) It is the existence of substantial grounds for the belief, not the belief itself, which is the crucial factor. It is not enough for the State through the Investigating Officer to state it’s belief; it is obliged to call or rely on credible evidence to substantiate its belief. Re Bail Application, Fred Keating v. The State (1983) SC No. 257 and Re Diawo [1980] PNGLR 148 considered and applied.

2) Even where bail is granted the investigator is obligated to regularly check up with his witnesses to determine whether threats have been issued. The State is at liberty to make appropriate application to the court where there exists credible evidence of interference or intimidation. 

Cases cited:
R. v. Slough Justices, Ex parte Duncan and Another (1982) 75 Cr. App. R. 384
Re Diawo [1980] PNGLR 148.
Re Bail Application, Fred Keating v. The State (1983) SC257

Counsel:
Mr. Emilio for the Applicant
Ms. Nidue for the Respondent/State

DECISION

MOGISH, J: The is an application for bail made pursuant to s. 42 (6) of the Constitution and sections 4 & 6 of the Bail Act Chapter No.340 seeking an order that the applicant be released on bail pending completion of the Committal and National Court proceedings.

The applicant has been charged with the crime of wilful murder pursuant to s.299 of the Criminal Code. The information laid by Constable Rodney Pokalai on the 20th October 2004 alleged that the applicant wilfully murdered one Joseph Rage. The facts reveal that on the date in question the deceased was attacked by the applicant and his accomplices on a beach at Hula village. The deceased body was then dumped into the sea and was discovered several hours later.

The applicant has denied the charge and says that he will vigorously defend his innocence. He says that he is able to raise cash bail of K1, 500.00 and will abide by any bail conditions imposed by the court. In support for his application to be released on bail the applicant has named both his parents namely Mr. Wari Vele and Mrs. Lynette Vele and his uncle Mr. Anderson Vele to be his guarantors. These persons have pledged to pay K500.00 each to the State if the applicant breaches any of the bail condition imposed by the Court.

The applicant is 22 years old and comes from Hula village. He is married and has a three year old son. He is employed as a customs compiler with his father’s company, Wari Vele Agencies Limited here in Port Moresby. He earns a sum of K400.00 per fortnight and resides with his parents at their family home at Section 26 Lot 19 Boroko here in the National Capital District.

This is the second time he has been charged with the same offence relating to the same facts. He was charged the first time on the 19th March 2004. On the 18th March 2004 the Waigani Committal Court discharged him from the charge after the prosecutor decided to withdraw the charge due to insufficiency of evidence.

On the 20th October 2004 he was re-charged and remanded at the Boroko Police Station. He appeared before the Committal Court yesterday and his case has been further adjourned to the 4th, the day this application was made.

The State has taken objection to this application based on the considerations under s.9 (c )(ii) & (ii) and 9(1)(f) of the Bail Act. They contend that the alleged act or any o the alleged acts constituting the offence in respect of which the person is in custody consists of (a) a serious assault (b) threat of violence to another person and that he is likely to interfere with witnesses or persons who instituted the proceedings if not remanded in custody (s. 9) (1) (f).

In support of its objection, State has filed an Affidavit from Constable Rodney Pokalai opposing the Applicant’s release on bail. I consider it relevant to set out in details the basis of the objection. These are contained at paragraphs 10, 11, 14 and 15 of his affidavit.

"10. During the course of my investigation I had to re-interview all the witnesses again and they were hesitant to submit their statements stating that 

11. Because of the short notice of the bail application I am not able to get to Hula village to obtain statements from my witnesses statements to support my affidavit that if the suspect goes on bail he may interfere with my witnesses.

12…

13…

14. I know that if the accused comes out on bail he has the upper hand to mobilize his friends and go back to the village anytime and intimidate my witnesses who are just simple villagers who may not be able to report to me immediately because of the distance where they live.

15. As the Investigating Officer to this case of wilful murder I strongly object that Vela Wari Vele be released on bail by this Honourable Court because of what has happened previously."

The right to bail is guaranteed by s.42(6) of the Constitution. For those persons arrested or detained and charged with treason or wilful murder bail is not available as of right. They must apply to the National Court for bail.

Section 9 of the Bail Act sets out the criteria for refusing bail. In Re Bail Application, Fred Keating v. The State (1983) SC257, the Supreme Court said:

"When considering the grant or refusal of bail in cases other than wilful murder or treason, the courts and other bail authorities are to be guided generally by s.9. But whilst the Bail Act is a complete code dealing with the grant or refusal of bail, by s.3, in matters other than wilful murder or treason, the bail authority may still have to consider the question of the interest of justice. This may involve considerations other than the criteria for refusing bail as established in this section."

The Supreme Court also held that the existence of any of the factors under S. 9 does not automatically operate as a bar to the grant of bail. Instead, the court or the bail authority does have the discretion to decide whether or not to grant bail, having regard to the particular circumstances of each case and "in the interest of justice".

Mr Emilio concedes and I agree that the considerations under s. 9 (1)(c ) (i) and (ii) have been established on the evidence before the court.

The only issue for my consideration is whether there is a likelihood that the applicant will interfere with the state witnesses. Section 9 (1) (f) of the Bail Act provides:

"9.	Bail not to be refused except on certain grounds.

(1)	Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:—

(f)	that the person is likely to interfere with witnesses or the person who instituted the proceedings; or"

Constable Pokolai’s affidavit contains allegations that if the applicant is released on bail he is likely to interfere with the State witnesses. In response to the Constable Pokolai’s affidavit, Mr. Emilio submitted that the matters deposed to by the Investigator are merely his beliefs and are not supported by any statements from the witnesses who have been threatened or intimidated. He submitted that Constable Pokolai’s assertions are substantially reduced in the absence of credible evidence of intimidation.

The issue here raises the distinction between a belief held by the investigator and the evidence to substantiate that belief. This distinction has been judicially considered by our Courts. In Re Fred Keating (supra) Andrew J (as he then was) said at p. 140 His Honour said that:

"before the discretion to refuse bail arises, the court has to be satisfied that there are substantial grounds for believing that one or more of the events described in s. 9(l)(a), (b), (c), (d), (e), (f) or (g), will happen. It is the existence of substantial grounds for the belief, not the belief itself, which is the crucial factor: See R. v. Slough Justices, Ex parte Duncan and Another (1982) 75 Cr.App.R. 384."

In Re Diawo [1980] PNGLR 148, which Kapi J (as he then was) emphasized the need to produce evidence to substantiate the belief of a likelihood of interference. At page 154 His Honour said:

"Secondly, the Public Prosecutor submits that the court should refuse bail on the basis that the applicant is likely to interfere with witnesses. He makes this submission on the basis that the applicant is by occupation a kiap and that the offence with which he is charged involves witnesses he once had influence over and that he is likely to interfere with those witnesses. The Public Prosecutor again did not produce any evidence to support this contention.

No inference such as the one the Public Prosecutor asks this Court to draw from the accused’s position as a kiap can be drawn without further evidence of this fact. There is no evidential basis for this argument, and I reject it."

The sum effect of this two authority is that it is not enough for the State to state it’s belief; it is obliged to call or rely on credible evidence to substantiate its belief. To that extent I agree with Emilio’s submissions. The affidavit deposed to by Constable Pokolai merely reflects his belief that the applicant is likely to interfere with State witnesses. No evidence has been produced before this court to support the investigators beliefs. The crucial factor in a bail application is for the State to establish the existence of substantial grounds for the belief, not the belief itself. In my view I cannot be satisfied that the considerations in s 9(1)(f) has been established.

My conclusion does not prevent the investigator to regularly check up with his witnesses to determine whether threats have been issued. This should prevent the applicant to warn his friends to keep away from the witnesses and that of there arises any evidence of intimidation, his right to continued bail would be in jeopardy.

For all the above reasons I am inclined to grant bail on the following conditions:

1.	Applicant to pay cash bail of K1, 500.00

2.	The following persons shall be appointed Guarantors for the Applicant.

a.	Mr. Wari Vele

b.	Mrs. Lynette Wari Vele

c.	Mr. Anderson Vele

3.	The applicants shall pledge the sum of K500.00 each which shall be payable to the State if the applicant absconds bail or breaches any of the conditions set out in the Bail Certificate.

4.	The applicant shall obey, comply and abide by the commands of the Guarantors at all times whilst on bail.

5.	The applicant shall report to the National Court Registry every Monday between the hours of 9.30 am and 3.30 pm.

6.	The applicant or his associates shall not interfere with any State witnesses.

7.	The applicant shall not leave the National Capital District at anytime.

8.	Whilst in the National Capital District the applicant shall reside with his parents at their family home located at Section 26, Lot 19, Boroko in the National Capital District.

9.	The applicant shall not to his village at Hula at anytime until his case is dealt with according to law.

10.	The applicant shall not consume any form of alcohol or beverages on other illegal drugs whilst on bail.
____________________________________________________________________

Lawyer for the Applicant:			Emilio Lawyer.
Lawyer for the Respondent: 			Public Prosecutor