N3611

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP. NO. 417 OF 2008

IN THE MATTER OF AN APPLICATION FOR BAIL PURSUANT TO SECTION 
42(6) OF THE CONSTITUTION AND SECTION 6 OF THE BAIL ACT CH.340

BETWEEN:

JOYCE MAIMA & REUBEN MICAH
-Applicants-

AND:

THE STATE
-Respondent-

Lae: Kirriwom, J.
2008: 14 & 15 October

BAIL – consideration of constitutional rights to bail under section 42(6) Constitution – grounds of refusal of grant of bail – use of firearms – substantial amount of money stolen not recovered – interference with state witnesses – inappropriate to grant bail for these reasons – Bail refused – Bail Act s4 (1)(b), s9(c)(iii), s9(I)(g) & s9(I)(f)

Cases cited
Re Fred Keating [1983] PNGLR 133

Counsel
S. Daniels, for the Applicants
A. Lloyd, for the Respondent

RULING

15 October, 2008

1. KIRRIWOM, J.: Joyce Maima and Reuben Micah have jointly applied to be admitted to bail under section 6 of the Bail Act and section 42(6) of the Constitution. They are however separately charged in relation to a string of offences connected with the alleged robbery of the Bank of South Pacific Limited in Madang between the 3rd and 5th July 2008 including the robbery itself as persons who participated in and facilitated the commission of these offences in different capacities, at different times and at different locations between Lae and Madang.

2. They were initially arrested and charged with armed robbery of the Bank of South Pacific Madang on 6th August, 2008 in respect of Reuben Micah and Joyce Maima on 15th August 2008. They were both remanded in custody and separately applied for bail which applications were heard jointly. The Court that heard their applications and despite objections by the State, granted bail to both applicants on these conditions, namely:

1.	Cash surety of K2,000 payable by each applicant.
2.	Two Guarantors of each applicant to each pay K1,000.00 in support of their guarantee.
3.	Report to the National Court Registry every Wednesday between 9am and 3pm.
4.	Not to interfere with State witnesses.
5.	Not to leave Lae, Morobe Province without the Court’s permission.

3. A total of K8,000.00 (K4,000.00 each) had been paid to the State in respect of Reuben Micah on 20th August 2008 and Joyce Maima on 21st August 2008. Apart from the conditions set out in the bail certificates and the notation in the inside cover of the MP files created for the respective matters, there are no written extracts of considerations underlying the granting of bail for reasons that become clearer later in this judgment. 

4. On 3rd October 2008, the applicants were rearrested and each charged with 14 separate counts of kidnapping for ransom and one count of rape also arising from the same set of facts and circumstances upon which the charge of armed robbery is founded and laid earlier. 

5. With respect to the allegation of armed robbery the charge is that on 5th July 2008 the defendants threatened to use actual violence and stole Two Million Four Hundred and Seven Thousand, Three Hundred and Fifteen Kina and Thirty-five toea (K2,407,315.35) from Mathias Manovo, Bank of South Pacific Madang Branch Manager the property of Bank of South Pacific and at the time and place they were armed with dangerous weapons namely high powered firearms and were in company of other persons.

6. In respect of the kidnapping charge it is pleaded that on 5th July 2008, the defendants detained (named victim) with intent to gain money from the Bank of South Pacific Madang Branch by demand containing threats of injury to be caused to the said (named victim) by the offender and his accomplices if the demand was not complied with. 

7. Generally the allegations against the applicants Joyce Maima and Reuben Micah are that in the days leading up to the robbery of the bank of South Pacific Madang Branch on 5th July 2008, and for several days after the robbery, these two applicants played very pivotal roles in the facilitation of the commission of the robbery and in the distribution and concealment of the stolen cash and also cover the tracks of the prime suspects in the robbery itself in Lae. 

8. It is alleged that the applicant Reuben Micah is responsible for providing accommodation and sanctuary to the prime suspect William Kapis at his Voco Point home following their arrival from Kimbe by sea in a 23 footer banana boat via Siassi Island and thereafter arranging and securing hire of vehicles for William Kapis and his accomplices here in Lae which vehicles were subsequently used to travel to Madang to commit this robbery and related offences. 

9. It is alleged that while using these vehicles William Kapis and his accomplices kidnapped the bank manager and his family, assistant bank manager and his family, a female staff and her husband and locked them up in a room at Malolo Plantation Hotel outside Madang Town between 4th and 5th July 2008. 

10. It is further alleged that during the period of their unlawful detention William Kapis unlawfully had sexual intercourse with the female staff against her will in her house when she was taken back there to fetch the bank vault key while the husband was restrained inside the stolen motor vehicle under guard.

11. It is further alleged that upon returning to Lae with the stolen money contained in crates, applicant Joyce Maima received William Kapis and his accomplices together with six containers or boxes of money that were unloaded at her place and hidden in her house at Garnet Street, Lae. In the days that followed after their arrival back in Lae, it is alleged that the applicant Joyce Maima was actively involved in moving William Kapis and accomplices throughout the city paying facilitators and concealing the money and arranging vehicles for their movement around the city. 

12. Although truth or otherwise of these allegations against them are not relevant in bail applications, neither of them has alluded to the merits of the case so far as the strength of the prosecution case founded on the allegations concerning each of them as I summarized from the statements of facts provided by the police accompanying the charges laid against them was concerned. I am therefore uncertain as to whether the applicants are denying the charges and will therefore be committed for trial (if there is prima facie case against them) or are admitting the charges in which case they will be committed for sentence only in the National Court. I note that this deficiency prevailed in the earlier application as well as in this application. 

13. In the current application which is jointly pursued, the applicants rely on their respective affidavits sworn 8th October, 2008. The contents of the affidavits are identically the same. The affidavit states that he/she was granted bail by a National Court Judge on 21 August 2008 with conditions and attached the certificate setting out those conditions. The affidavit further states that he/she was requested to attend Lae CID office in the morning of 2nd October 2008 where he/she was further interviewed and additional charges were laid against him/her namely 14 counts of kidnapping and one count of rape. The affidavit states that he/she has since been slapped with these additional charges and he/she has been detained in custody despite the earlier court order that released his/her on bail. The affidavit annexed the copy of information in relation to the new charges and states that these charges stem from the same set of facts on which the charge of armed robbery was founded and bail was given. Both have also annexed their previous affidavits to their affidavits relied on in this application. On the basis of their previous bail they are of the view that they are entitled to be on bail.

14. The applicants’ backgrounds are set out in their affidavits deposed to in August 2008 which they also relied upon in this application. It is submitted that circumstances have remained basically the same although in respect of Joyce Maima, State counsel argued that her circumstances have not remained static as she tried to have the court believe. Since she last deposed to her affidavit and appeared in court for her first bail application, her employment condition had changed which she failed to disclose to the court at that time and again failed to alert the court to this fact even in her current application. This discrepancy in her personal background was deposed to today in one of the two affidavits of Inspector Chris Kuyanban of Special Investigative Task Force of Lae Police which attached documents obtained from Credit Corporation Finance Limited that Joyce Maima resigned from her job on 14th August 2008 with immediate effect and confirmed by the General Manager Finance David Weston (annexure B and C of Chris Kuyanban’s affidavit). However in her affidavit sworn 15 August 2008 which was relied upon for her bail application on 21 August 2008, she deposed that she was employed by Credit Corporation in Lae as the Branch Manageress and was the only breadwinner of the family whom she supported in her house at Garnett Street, Cassowary Road, facts which were not true because at the time of swearing the affidavit, she was no longer in employment and was no longer the only breadwinner of the family.

15. She also deposed in that affidavit that she had a medical condition that required her to receive regular medical attention. She said that she was diagnosed with this condition while young and appended a medical certificate issued by Advent Medical Clinic here in Lae. Police investigation with her former employer failed to come up with any such records maintained in her file by the company. 

16. Joyce Maima of Siane, Watabung, Eastern Highlands Province, is a mother of a five year old boy whose father deserted them and she supports the child who attends kindergarten at Building Blocks School Eriku, plus a house load of relatives from home and her old mother. While she maintains her separate existence at Garnet Street along Cassowary Road, her husband, Stanna Koi, also lives his own independent life at 7th Street, Lae. 

17. In her affidavit she denied committing the alleged crime and said that she was never in Madang to commit this offence and she will call alibis to show that she was innocent. 

18. Reuben Micah is a 35 year old man from Pam Island Manus Province. He is self employed and has lived and worked in Lae since 1997 and calls Lae his home. He is a devout Seventh Day Adventist who made his living providing transport to market vendors from 2 mile and 4 mile and carrying passengers from Voco Point to various destinations in Lae and collects fares from passengers. He is also married and wife was on maternity leave at the time of his first arrest. He is a youth leader and travelled extensively throughout the country attending youth training programs. 

19. According to his affidavit he swore on an unspecified date in August 2008, he never thought that he would be charged with this offence, he thought he would be a police witness in the case. According to him, he was not involved in the robbery but a vehicle that he hired for a youth camp was used by the prime suspects of the robbery thereby rendering him an accomplice to the crime they committed. 

20. This was the evidence he relied upon in the earlier application and is also relied upon in this application. 

21. But the statement of facts provided by the police show that Reuben Micah was quite instrumental in providing cars hired under his name to the prime suspects in this crime including William Kapis both before the robbery, during the robbery when the vehicles he secured facilitated the commission of the crimes and after the robbery when the suspects returned to Lae with the stolen money. He was paid his share of facilitating this crime against the State. 

22. The application before me today is that the applicants want to be readmitted to bail as they were remanded in custody by the police after fresh charges of very serious nature were laid on them then as bail was only available in the National Court. 

23. State opposes bail on the same grounds that they had previously raised while objecting to their earlier bail applications. Bail was opposed pursuant to section 9 (1) (c)(iii), (f) and (g) which relate to use of high-powered firearms most of which are still in the hands of the applicants accomplices, money of substantial value was stolen and only K200,000 was recovered, over K2.2m is still unrecovered. It is submitted that if granted bail the applicants are likely to take steps to conceal evidence of where the money has been hidden. And furthermore, there is possibility of interference of potential State witnesses in trying to conceal evidence crucial to the prosecution case. 

24. According to Inspector Chris Kuyanban, both applicants were members of an organized crime syndicate specialized in robbing banks and their release on bail was a threat to financial institutions and profit driven organizations. Given the nature of the crime committed by the applicants and the negative impact it had on the people nationwide, committal proceedings be allowed to proceed without undue delay and investigations can only be expedited if the applicants remained in custody thereby guaranteeing speedy committal hearings.

25. Mr. Daniel for the applicants submitted that the State raised the same objections as they now raised in the earlier bail applications but the judge nevertheless granted them bail. 

26. The law has been quite clearly stated by the Supreme Court in re Fred Keating [1983] PNGLR 133 (per Kidu, CJ, Kapi, DCJ and Andrew, J) that the grant or refusal of bail under section 9 of the Bail Act is discretionary in all cases. It also held that once one or more of the considerations in section 9(1) are proved bail shall be refused unless the applicant shows cause why his detention in custody is not justified. The Supreme Court laid down these basic parameters in which bail applications are considered while acknowledging the constitutional right to bail under section 42(6) in all cases except willful murder and treason and also section 4 of the Bail Act which prohibited bail in cases of wilful murder and also while further acknowledging an applicant’s right to bail unless one or more consideration in section 9(1) of the Bail Act was established.

27. Against these criteria the applicants’ bail must be processed but acknowledging that in all cases bail is still a discretionary matter which discretion the court must exercise judicially. Subjecting this application through this scrutiny, the court examines the basis upon which the prosecution opposes the application, particularly being mindful of section 42(6) Constitution which guarantees bail in all cases except willful murder and treason. The charges against the applicants are that of 14 counts of kidnapping and one count of rape. This is on top of the charge of armed robbery involving K2.4 million belonging to the Bank of South Pacific Ltd Madang Branch. These subsequent charges are also connected with this same offence as separate indictable offences allegedly committed in the process in the same transaction. 

28. Section 4 of the Bail Act was amended by Bail (Amendment) Act 1993 which extended prohibition of bail from wilful murder to most violent crimes. The amendment provides:

"4.	Only National or Supreme Court may grant bail in certain cases.

(1)	A person—

(a)	charged with wilful murder, murder or an offence punishable by death; or
(b)	charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or breaking and entering a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence,

shall not be granted bail except by the National Court or the Supreme Court.

(2)	For the purposes of Subsection (1), "firearm" includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile." 

29. Pursuant to this amendment even rape, robbery and kidnapping are subject to the same restriction on bail imposed by law unless National or Supreme Court stated otherwise following an application. 

Use of firearm

30. Section 9(1)(c) (iii) provides that bail shall not be refused unless the court is satisfied on reasonable grounds 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.

31. In this case it has been amply demonstrated that very high-powered modern issue firearms were used throughout the commission of the crimes alleged, bank manager and his assistant with their families, a female bank officer and her husband and one other officer were all kidnapped at gun-point and detained against their will in a hotel for several days and forced to open the bank vault and the female officer was raped at gun point in her house while the husband was guarded in a vehicle at gun-point. This litany of terror upon these victims involved use of high-powered firearms. I am satisfied that firearms played a major role in the facilitation and commission of these string of offences alleged against the applicants.

32. I note what the applicants are saying in their affidavits. Joyce Maima contends that she was not involved in these crimes because she never went to Madang at all. I do not read in the statement of facts supporting the allegations against them that each of them physically took part in the actual robbery, actual kidnapping or actual raping of the female bank officer. The allegations against them is for enabling the commission of this crime of robbery in Madang by the assistance or help that each rendered to William Kapis the prime suspect in Lae both before and after the alleged robbery, whether for a share in the proceeds of the crime or other reasons. In law every person who participates one way or another that makes commission of a crime possible is criminally liable like the actual perpetrator of the crime. It is common sense because without the accessory or accomplice before, during or after the crime, no crime will be committed, particularly major crimes such as the one alleged which involved much logistical support and planning. 

33. I note also what Inspector Kuyanban says in his affidavit that this is a well organized syndicate specialized in robbing banks. A well organized syndicate involves great number of participants playing their respective roles in the overall crime scheme for the operation to be successful. This is the allegation against the applicants. This crime was facilitated through their participation, without their help, nothing could have progressed and no crime could have been committed. Whether or not this is true is a matter for the trial itself to resolve. That is where they can tell the court. I am here to determine whether I should release them on bail pending their committal hearing in Madang. 

Substantial amount of money stolen not recovered

34. Section 9(1)(g) provides that bail shall not be refused unless the court is satisfied on reasonable grounds 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;

35. This robbery not only involved the use of firearms, a substantial amount of money amounting to K2,407,315.35 were stolen. According to the evidence only K200,000 was recovered. The rest of the money is still missing. The State contends that if the applicants are released on bail, they will conceal all traces of ever recovering any of those monies again. 

36. The State’s objection on this ground is supported by the evidence of close association of the applicants with William Kapis and his accomplices before and after the kidnapping and robbery in Madang. The statement of facts supplied by the police shows that the two applicants provided hired vehicles both before and after the robbery. Money crates were delivered to Joyce Maima’s house at Garnet Street and later distributed and payments made. Joyce Maima and another accomplice were alleged to have been apprehended by police in her house having in possession still some of the stolen money with the Madang BSP stamp on the bundle. 

37. This evidence places Joyce Maima and similarly Reuben Micah right in the thick of this crime rather than being on the periphery of it. I am satisfied that there is a lot of money still unaccounted for that both Joyce Maima and Reuben Micah have knowledge of and could easily frustrate any hopes or prospects of their recovery if released on bail.

Interference with witnesses

38. Section 9(1)(f) provides that bail shall not be refused unless the court is satisfied on reasonable grounds that the person is likely to interfere with witnesses or the person who instituted the proceedings.

39. Police also oppose bail on the basis that the applicants are likely to interfere with witnesses. Given the magnitude of human involvement in pulling through an intelligently organized crime of such a large scale, there could be scores of players inside and outside the loop to make the operation a success. For example without the alleged involvement of the applicants nothing could have materialized into this crime. Both Joyce Maima and Reuben Micah played pivotal roles in the making of this robbery to such an extent that they have inside knowledge of other participants with whom they interacted and cooperated with to facilitate the commission of this crime and also to conceal every trace of discovery after the crime had been committed. 

40. I am satisfied on the evidence so far supplied by the police that if released on bail, the applicants will no doubt interfere with potential prosecution witnesses, many of whom could be close family members, whose cooperation and assistance is needed by the police to not only complete their investigation but also to prosecute the case. 

41. I have had to consider this application de novo as I am advised that these fundamental criteria stipulated in the Bail Act and which the Supreme Court examined and determined in Re Fred Keating (supra) were not addressed in the earlier application. In my view it is sound practice in every case where there is strenuous objection to bail, the court must give reasons for its decision irrespective of whatever the outcome of the application. This is an exercise of public duty and as such decisions of the court are matters of public record where everyone can have access to them at any time. In high profile cases of this magnitude that is a subject of intensive investigation right across the length and breadth of this country in different locations where suspects are being apprehended, charged and brought before the magistrates or court for mention as required by law, there must be extreme care and caution exercised in the issue of bail that does not defeat the whole purpose of criminal justice administration especially when the proceedings ultimately will or must take place in one location. This case is going to involve logistics of moving witnesses to and from their places of abode to the place of hearing. How the accused are going to be placed in this scenario is an important factor that must be given due consideration not only with respect to the applicants before me, but also with respect to others who are or might be apprehended in other centres in connection with the same allegations. 

42. What is becoming more and more apparent in this case is that ultimately the committal proceedings will be conducted in the District Court in Madang which means that the trial, if committed, will take place in the National Court in Madang. That is where the alleged crimes were committed so must Madang be the venue of this trial. Change of venue can only take place when circumstances warrant it. The bail given to the applicants previously failed to take this consideration into account and as the consequence the applicants by compulsion of law breached earlier bail conditions upon being remanded in custody when further charged and did not report to the National Court registry here in Lae as required and further went to Madang for the committal hearing in contravention of the condition not to leave Lae without the permission of the court. These are not deliberate breaches; these are the unfortunate consequences of an ill-conceived decision in the first place that made these breaches inevitable. 

43. Considering this application anew, I am satisfied that at this juncture, it is not appropriate to grant bail to the applicants for the reasons given above. Until the committal court has completed its task, it is too early to predict how long it is going to take their cases to be dealt with by the National Court. In fact the speed in which their cases can be dealt with is a case management issue that falls squarely in the realm of the judge in charge of the court list. The delay factor varies from place to place. Madang may not be the same as Lae where we have a pretty big list and today we are still in 2006 cases like a dog chasing its own tail. 

44. I have considered the applicants’ family situations. But the enormity of the case and the logistical factor involved in the committal process which has only begun, the whole purpose of criminal justice process will be defeated if this preliminary investigatory process is not allowed to be completed without impediments such as unavailability of accused for all kinds of reasons including transportation, accommodation, financial, family, etc if they were to be on bail and commuting from Lae whenever their case came up. They can give serious consideration to how they can address this situation if they were seriously contemplating bail after the committal court has completed its task and they were committed. Of course they don’t have to worry about this if they are not committed.

45. How much in money terms a person can afford bail is not the only consideration. If this was the criteria in bail, only those able to pay big money will get bail irrespective of the merits of their applications and justice will go begging. There are other factors just as important as money that must override the temptation to place emphasis on money to guarantee compliance. Experience has shown that even large some of money as security has never worked in some cases. 

46. In all circumstances of the case I refuse bail to the applicants. I further order that circumstances have now changed with the fresh charges being laid against them now justifying this court revoking and rescinding its earlier decision granting bail as compliance of the conditions then imposed are now rendered improbable and ineffectual and that decision is hereby rescinded. 

47. I further order that the applicants be remanded in custody and steps be taken to immediately transfer them to Beon gaol to be remanded pending committal proceedings in Madang.

48. In addition I order that the applicants bail money of K2000 each, four guarantors’ money of K1,000 each, all of which have already been paid, be refunded to them forthwith.

Acting Public Prosecutor: Lawyers for the State
Daniels & Associates: Lawyers for the Applicants