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In re Hembi [2008] PGNC 136; N3473 (12 September 2008)

N3473

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NOS 274 & 276 OF 2008

IN THE MATTER OF BAIL APPLICATIONS
BY JONATHAN HEMBI & JOHN MURUMBI

Madang: Cannings J
2008: 8, 9, 12 September

RULING

BAIL – nature of right to bail – Constitution, Section 42(6) – Bail Act, Sections 4 and 6 – exercise of discretion whether to grant bail – conditions and length of detention as relevant considerations – human rights of remandees.

Two men, charged with armed robbery, applied for bail, which was opposed by the State. They had been in custody for a little over four months in conditions they claimed were very poor.

Held:

(1) Sections 9(1)(c) and (g) of the Bail Act applied as the applicants are alleged to have been involved in an armed robbery, which involved threats of violence and firearms and the robbery involved property of substantial value that has not been recovered.

(2) Therefore the court had a discretion to grant bail, or refuse it.

(3) In addition to the considerations in Sections 9(1)(c) and (g), the Court took into account that:

• The guarantors proposed are neither independent nor reputable.
  
• The applicants have not yet spent an unreasonable period in custody and their conditions of detention are not unconstitutional.
  
• There appears to have been an alarming spate of major armed robberies in and around the area in recent times.
  

(4) Bail was accordingly refused.

Cases cited

The following cases are cited in the judgment:

Bernard Juale v The State (1999) N1887
Fred Keating v The State [1983] PNGLR 133
In the Matter of Applications for Bail by 61 Remandees of Boram Correctional Institution, MP No 74 of 2006, 31.05.06
Re Herman Kagl Diawo [1980] PNGLR 148

APPLICATIONS

This is a ruling on two applications for bail.

Counsel

J Kolkia, for the applicants
J Wala, for the State

12 September, 2008

1. CANNINGS J: Jonathan Hembi and John Murumbi are applying for bail. They are charged with the armed robbery of the Dylup Plantation payroll that took place in the North Coast area of Madang Province on the afternoon of Friday 2 May 2008.

2. An armed gang is alleged to have held up staff in the plantation office, threatened them with guns and bush knives and stolen more than K60,000.00 in cash. The police say that the applicants provided transport for the gang and played an integral role in the robbery. They say that the applicants have been identified by the victims of the robbery and that the case against them is strong.

3. The applicants were arrested soon after the robbery and have been in custody since then, a period of more than four months.

4. The District Court has not yet made a decision on whether they will be committed for trial in the National Court.

PERSONAL PARTICULARS

5. The applicants are related to each other. They are from the Sepik but have been born and raised in Madang. They live at the DCA compound, near Madang Airport. Jonathan is aged in his 20s and is single. He works as a crew on a PMV. John is aged about 30 and married with two children. He is a PMV owner/driver.

6. They say that their families have been suffering while they are in custody. They are concerned about the conditions of detention at Beon Jail. They say the remand compound is overcrowded, there is a food shortage and diseases are prevalent. They have put forward various family members as guarantors in the event that they are granted bail.

THE STATE’S POSITION

7. The State opposes bail. Mr Wala submitted that it was a very serious armed robbery in view of the amount of money that was stolen and the violence that was threatened against the plantation staff. Other members of the gang are still at large and the stolen money has not been recovered.

8. Police investigations are continuing but might be thwarted if the applicants are allowed out on bail. Also, the proposed guarantors are family members who cannot be trusted.

THE LAW ON BAIL

9. The Constitution, Section 42(6) (liberty of the person) states:

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.

10. The Constitution therefore creates a right to bail – unless the interests of justice require otherwise – in the case of a remandee charged with any offence other than wilful murder or treason.

11. The Bail Act Chapter No 340 provides for bail to be granted more readily and gives effect to Section 42(6) of the Constitution.

12. Section 6 (application for bail may be made at any time) provides that a bail application can be made at any time after a person has been arrested or detained or at any stage of a case.

13. Section 9(1) (bail not to be refused except on certain grounds) lists ten circumstances in which bail can be refused. If none of them exist, bail must be granted. If one or more of them exist, the court hearing the application can still grant bail at its discretion (Fred Keating v The State [1983] PNGLR 133; Bernard Juale v The State (1999) N1887; In the Matter of Applications for Bail by 61 Remandees of Boram Correctional Institution, MP No 74 of 2006, 31.05.06).

14. Section 9(1) states:

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:—

(a) that the person in custody is unlikely to appear at his trial if granted bail; or

(b) that the offence with which the person has been charged was committed whilst the person was on bail; or

(c) that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of—

(i) a serious assault; or

(ii) a threat of violence to another person; or

(iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive; or

(d) that the person is likely to commit an indictable offence if he is not in custody; or

(e) it is necessary for the person's own protection for him to be in custody; or

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

(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property; or

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act against the person in custody; or

(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody; or

(j) that the alleged offence is one of breach of parole. [Emphasis added.]

15. If the State or any other person with a legitimate interest in a bail application opposes bail, they bear the onus of showing why bail should not be granted (Re Herman Kagl Diawo [1980] PNGLR 148).

DO ANY OF THE CIRCUMSTANCES IN SECTION 9(1) OF THE BAIL ACT EXIST?

Yes.

16. First, Section 9(1)(c) applies: the applicants are alleged to have been involved in an armed robbery, which involved threats of violence and firearms.

17. Secondly, Section 9(1)(g) applies: the robbery involved property of substantial value that has not been recovered and there are grounds for believing if they were released on bail, the applicants would try to get their hands on it.

18. I therefore have a discretion to exercise: to grant bail or refuse it.

19. I have, in the interests, decided to refuse bail. In addition to the considerations in Sections 9(1)(c) and (g), I have taken into account the following:

• The guarantors proposed are neither independent nor reputable. If someone such as a ward councillor or church pastor had come forward as a guarantor, the applicants’ chances of getting bail would be enhanced. But, in such a serious case as this, I agree with Mr Wala that family members cannot be trusted.
  
• The applicants have not spent a long time in custody. And I am not satisfied that conditions at Beon Jail are as bad as they say. I have made regular Visiting Justice vests to Beon over the last three years and conditions have improved a lot. The remand compound is not overcrowded. If the conditions were as bad as suggested, I would expect their lawyer to be approaching the National Court seeking orders under the Constitution for enforcement of their human rights. There have been no such applications recently.
  
• There appears to have been an alarming spate of major armed robberies in and around Madang town in recent times. The police seem overstretched. When they apprehend suspects, on good grounds, their work is facilitated by keeping them in custody for a reasonable period so that their investigations can continue without distraction.
  

RULING

20. Bail is refused under Sections 9(1)(c) and (g) of the Bail Act.

Ruling accordingly

_________________________________________

Paul Paraka Lawyers: Lawyers for the applicants
Public Prosecutor: Lawyer for the State