N3655

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No 567 & 568 OF 2008

IN THE MATTER OF AN APPLICATION FOR BAIL UNDER S. 42(6) OF THE CONSTITUTION AND S.6 OF THE BAIL ACT

BETWEEN:

JESSE SUAH & SAMUEL JOB
Applicants

AND:

THE STATE
Respondent

Waigani: Paliau, AJ

2009: 11th, 19th May

CRIMINAL LAW – Practice and Procedure – Bail Application – Offence of accessory after the fact – Applicants alleged to have assisted prison escapee involved in two bank robbers – Whether State shown existence of one or more considerations under s.9(1) of Bail Act – Granting bail discretionary – Onus on applicants to show their continued detention in custody not justified – Onus not discharged – Bail refused.

Cases cited:

Re Fred Keating v. The State [1983] PNGLR 133
The State v. Beko John Paul [1986] PNGLR 97
Unnumbered Judgment, Joyce Maima & Reuben Micah v. The State, 
MP No. 417 of 2008, 15th October 2008.
Unnumbered Judgment, Tamara Player v. The State, 
MP No. 538 of 2008, 17th March 2009.
Unnumbered Judgment, Charlie Posanau & David Koyama 
v. The State SCAPP. Nos. 2 & 3 of 2009, 1st May 2009

Counsel:

Mr. G. Lau, for the Applicants 
Mr. D. Kuvi, for the Respondent

RULING

19 May, 2009

1.	PALIAU, AJ: The applicants applied for bail pursuant to s.42 (6) of the Constitution and s. 6 of the Bail Act. They are charged with accessories after the fact under s.519 and as read with s.10 (1) of the Criminal Code. The charge is in relation to the robbery at BSP Bank, Kerema and Madang. They are alleged to have assisted William Kapis Nanua to escape punishment in relation to that robbery. They were arrested amongst other twenty-four (24) co-accused on the 18th July 2008 along the Magi Highway. They were in a 15 seater bus driven by Kelly Welavo with 7 others. William Kapis Nanua was driving the Toyota Land cruiser with 4 others. Charlie Posanau was driving the Mitsubishi L200 with 13 others including David Koyama. They have been remanded in custody since the time of arrest. 

2.	In support of their applications, they filed their own affidavits. Their affidavits are similar in content. Their affidavits deposed that firstly they deny the charge and will contest the matters in Court. Secondly, their health is at risk to diseases as they are kept in the Maximum Security Unit which was closed and no longer safe and fit for human habitation, and that they will not abscond bail. They undertake not to interfere with State witnesses because they claim all State witnesses are policemen. Finally, Jesse Suah, deposed that he is a very sick man and have not been given proper medical attention and for Samuel Job, he deposed that he is a student at IEA College of TAFE undertaking Diploma in Information Technology. He annexed a letter to that effect from the college.

3.	Further, the applicants in support of their application filed affidavits from two guarantors each. For Jesse Suah, affidavits were filed by Dale Kuson and Michelle Poloat. Michelle Poloat is a cousin sister to Jesse Suah. For Samuel Job, affidavits were filed by Dick Thomas and Edward Kenas. Both guarantors are related to the applicant as they are from the same village.

4.	Counsel for the applicants, Mr. Lau argued that both applicants do not know the principle offender, Mr. William Kapis Nanua. They have not received any monies or benefited from the proceeds of the robbery. They were told by Mr. Kelly Welavo to go with him to attend to a bride price ceremony on the day that they were apprehended. 

5.	It is further argued that the offence upon which the applicants are charged with is one of accessories after the fact and not one of treason or wilful murder. Furthermore, the considerations contained in s.9 of the Bail Act do not apply to the applicants. Even, if one or more is made out against the applicants, they have shown good grounds why they should be granted bail.

6.	On the other hand, the State opposes bail. In opposing bail, the State tendered from the bar table an Affidavit deposed to by Mr. David Kuvi, the Counsel for the State. Annexed to that affidavit is a Statement of Detective Senior Constable Remmy Jogioba, the investigating officer in this matter, attached to the Major Organised Crime Intelligence Team (MOCIT).

7.	The State objects to bail pursuant to Section 9(1)(c)(i)(ii)(iii), (e),(f) and (g) of the Bail Act. Mr. Kuvi for the State argues that the applicants should not be allowed bail because of the use of high-powered firearms in the commission of the principal offence, money of substantial value was stolen and most of them have not been recovered. It is also submitted that if allowed bail, the applicants will take steps to hide evidence of where to find the monies or to make efforts to recover such monies difficult. It is further argued that there is a likelihood of the applicants interfering with State’s witnesses, if allowed on bail.

8.	The law on whether an applicant for bail is to be granted bail or not under s.9 of the Bail Act is well settled in the Supreme Court case of Re Fred Keating v. The State [1983] PNGLR 133. The Court has the discretion, but the onus is on the applicants to show why their continued detention will not be justified, once one or more of the considerations in s.9(1) are made out against them.

9.	The State objects to granting of bail to the applicants on the grounds that the considerations under s.9(1)(c)(i)(ii)(iii),(e), (f) and (g) are applicable to them. The terms of these provisions are set out hereunder.

"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:—

(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;

……

(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;

……."

10.	First, Mr. Kuvi submitted that the alleged act or any of the alleged acts constituting the Principal offence of robbery which the applicants are in custody of consists of a serious assault, a threat of violence to another person, or use of firearms. 

11.	The applicants are charged with accessory after the fact. This offence relates to the principal offence of robbery allegedly committed by one William Kapis Nanua. This was the robbery of the bank of BSP Kerema and Madang branches. From the brief facts it is clear in my mind that the applicants were arrested with the other co-accused at Kwikila Station. They were in a vehicle that was part of a convoy of vehicles. They had warned William Kapis Nanua not to proceed to Aroma coast. William Kapis Nanua who was driving the other vehicle turned back to Port Moresby when he was apprehended at a Police road block.

12.	The brief facts are contained in the summary of facts which is annexed to the affidavits of the applicants as annexure "c". I accept these facts as sufficient evidence implicating them as preventing the principal offender from lawful arrest. As Kirriwom, J said in Joyce Maima & Reuben Micah v. The State, MP No. 417 of 2008, 15th October 2008; -

"……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."

13.	The above case involved the applicants who were alleged to have been accessories before and after the bank robbery at BSP Madang branch involving the principal offender, William Kapis Nanua on the 5th July 2008. It is alleged that the two applicants assisted William Kapis Nanua to commit the robbery and other related offences. It is also alleged that there were threats of violence and use of firearms in the commission of the offences. His Honour held that the objections pursuant to s.9(1)(c) were made out against the applicants. 

14.	In the present case, the two applicants are alleged to have been accessory after the same robbery involving the same principal offender, William Kapis Nanua. But this time in Port Moresby and Central Province and related to the robbery at BSP Kerema branch as well. 

15.	In a related case of Tamara Player v. The State, MP No. 538 of 2008, 17th March 2009, His Honour, Batari J, held also that s.9(1)(c) was established against the applicant because the fact alleged against the principal suspect of the bank robbery and escapee William Kapis Nanua involved threats of violence and possession of firearms. In that case, the applicant, Tamara Player was also charged for accessory to the escape and robbery allegations against the principle offender, William Kapis Nanua. It is alleged that she assisted the principle suspect in the Kerema BSP and Madang BSP robbery on the 17th June 2008 and 5th July 2008 respectively to escape punishment. A week after the Madang robbery, Police recovered from her home, Police issued uniforms, firearms and ammunition. These were connected to the alleged bank robberies. 

16.	No doubt the alleged bank robbery and escape by suspect William Kapis Nanua involved threats of violence and possession of firearms. Because the applicants are charged as accessories to the escape and robbery allegations, I find that the objections by the State under s.9(1)(c) are made out against the applicants. 

17.	The next ground of objection to bail is that custody is necessary for the applicants’ safety and protection. Further considering the seriousness and gravity of the offence, it is in the interest of justice that custody is necessary. The State did not produce any direct evidence that their life will be at risk if the applicants are allowed on bail. When considering this issue in the Tamara Player case (supra), His Honour Batari, J said: -

"But when one considers the nature and enormity of the two bank robberies, the millions of kina which were stolen and the possibility of a network of others implicated still at large, the potentiality of collusion, conspiracy, threats, intimidation and other underarm tactics to avoid detection is a real possibility. It is not hard to imagine stakeholders and other beneficiaries of the bank robberies proceeds adopting means or extreme measures to hush up or even eliminate sources of threats for their own self preservation. 

So, it might just be possible that, release of the applicant from custody will be to her own detriment at this time. I conclude that s. 9(1)(g) is a legitimate proposition against bail unless she shows otherwise that the interest of justice requires her release from custody." 

18.	Considering the enormity, gravity and seriousness, of the two bank robberies and the likelihood of conspiracy between those yet to be arrested to work together to avoid detention, it is for their protection for the applicants to remain in custody. 

19.	The State also objects to bail on the ground that if the applicants are released from custody, they will interfere with witnesses (s.9(1)(f)). The applicants are charged with accessory to robbery and escape of the principal suspects William Kapis Nanua. They were in a vehicle which was part of a convoy of vehicles that went to warn off William Kapis Nanua to escape arrest. 

20.	According to Detective Senior Constable Remmy Jogioba’s statement dated 22nd February 2009 and annexed as "A" to Mr. David Kuvi’s affidavit sworn on the 5th May 2009, the applicants are alleged to have been in a 15 seater bus driven by Kelly Walevo as part of the convoy of vehicles and a Mitsubishi L200, a third vehicle Toyota Land Cruiser, vehicle driven by William Kapis Nanua. It is further alleged in the statement that the applicants are implicated in the BSP Kerema Branch bank robbery in that they were given some monies from that robbery. They are alleged to know William Kapis Nanua and Kelly Walevo and what type of persons they are. And investigations into the allegations are still continuing. 

21.	Although strictly in compliance with the rules of evidence, the statement by Detective Jogioba should have been produced or tendered through his own affidavit, I accept it by virtue of s.9(2) of the Bail Act which states: -

"(2)	In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it."

22.	The applicants are amongst a lot of others that are implicated in both the Kerema and Madang robberies. The charges are accessories to robbery and escape of the principal suspect William Kapis Nanua. Some applicants have been refused bail by the National Court and the Supreme Court on the grounds that s.9(1)(c),(f) and (g) had been established against them (see Joyce Maima & Reuben Micah v. The State (supra), Tamara v. The State (supra) and Charlie Posanau & David Koyama v. The State SCAPP. Nos. 2 & 3 of 2009, 1st May 2009).

23.	The investigations are sill continuing and there is a real possibility that interfering with the investigations and witnesses or accessing and dealing with monies of large amounts that have not be recovered exists, if the applicants are released on bail. His Honour Batari, J had this to say in Tamara v. The State (supra):

"The bank robberies in Kerema and Madang left a trail of possible suspects traversing several provincial locations including Madang, Lae, Kimbe, Kerema and Alotau, Aroma in the Central Province and Port Moresby. This suggests a well planned and organized network of myriad proportions involving many people to raid and siphon-off millions of kina from the two banks. The plan initially worked smoothly until someone ‘spilled the bean’. The magnitude and complex nature of the principal robbery offences allegedly masterminded by an escapee is no doubt, difficult to investigate by police and it is not surprising that investigations are still continuing. 

……

There may be less obstruction to smooth police investigations if those already detained remain in custody until completion of investigations or a change in circumstances favouring bail, occurs. Real possibility of interfering with police investigations and witnesses or accessing and dealing with monies of substantial amount that has not been recovered exists, if persons alleged to be accessory after the facts are released on bail. They can easily make contact and collude with associates, currently at large. This is not mere conjecture. The millions of kina stolen have raised the stakes very high. The money could not have just vanished into thin air." 

24.	In my opinion there are reasonable grounds to believe that the applicants if released would interfere with the investigations and witnesses and may deal with the large amounts of monies that have not yet been recovered. The considerations under s.9(1)(f) and (g) exists against the applicants.

25.	All in all, I am satisfied that the State has established on reasonable grounds that one or more of the considerations under s.9(1) of the Bail Act exist against granting bail to the applicants, unless the applicants can show to the Court that their continued detention is not justified: Re Fred Keating v. The State (supra) and The State v. Beko Job Paul [1986] PNGLR 97.

26.	Even if one or more of the considerations exists in not granting bail, I still have the discretion to grant bail. However, the onus is on the applicants to persuade me to exercise this discretion in their favour by showing that their continued detention in custody is not justified: Re: Keating (supra).

27.	The applicants in this case have filed affidavits in support of their applications. Their affidavits are similar in content when advancing grounds for seeking bail. 

28.	First, they deny the charge and will contest in Court. I view this as a matter for them to prove their innocence when their cases are before the Courts. I reject this ground. 

29.	Secondly, their continued detention has psychologically affected them and as they are detained in the condemned Maximum Security Unit, their health is at risk. There was no medical report evidencing that the above conditions are likely to affect their health both physically and psychologically. I reject this ground as well.

30.	Further, they undertook to appear at their trial dates and will not abscond bail. On these grounds they nominated two (2) guarantors each who have pledged to make sure that they appear at their trial dates and to comply with their bail conditions. I note that the nominated guarantors are related to the applicants. The Supreme Court in the case of Charlie Posanau & David Koyama (supra) had this to say in relation to guarantors who are related to applicants:- 

"We have noted that, the proposed guarantors are all related to the two applicants. We are of the view that there may be some apprehension of bias and conflict of interest involved. The risk of absconding bail would be much higher as compared to a guarantor who was a natural person: Malaki Kongo & Joe Akusi v. The State (1966) N1544 (See also Paul Guan v. The State (06.01.09) N3576)."

There is no guarantee that the applicants will comply with their bail conditions if they have relatives supervising them as guarantors. The risk of non-compliance will be greater than if they have a non-relative as a guarantor. This ground is also rejected. 

31.	Finally, they argued as one of their grounds that s.9(1)(a) to (j) of the Bail Act do not apply to them. This ground is definitely rejected as I have found the considerations under s.9(1)(c),(e),(f) and (g) have been made out against them not to grant bail. 

32.	The applicants have not persuaded me that their continued detention in custody is not justified. They have not discharged the onus placed on them. 

33.	Accordingly, bail is refused. Under ss.6 and 13 of the Bail Act, the applicants may make further applications to this Court or the Supreme Court at any stage of the proceedings. 

_______________________________________
Kumul Legal Group: Lawyer for the Applicants
Public Prosecutor: Lawyer for the State