N4071

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

MP No. 88 OF 2010

In the matter of an Application for bail under s. 42(6)
of the Constitution and s.6 of the Bail Act

BETWEEN:

FLOYD KOHAI
Applicant

AND:

THE STATE
Respondent

Waigani: Kawi, J
2010: 21st April

CRIMINAL LAW - Practice and Procedure – Offence of harboring escaped prisoner – Section 140 of Criminal Code – Bail Act – All Section 9 considerations not present. Constitution section 42(6) interests of justice – Interest of community and law abiding citizens - Crime of harboring escaped prisoners – a serious crime – Nature of the crime operates as sufficient factor against bail being granted-Need to balance individual interests of an accused person to be out on bail and community interest. Community interests well encapsulated in the phrase " interest of justice" provision in Constitution section 42(6) and section 3 of the Bail Act.- Community interests should prevail over individual interests-Interests of community need to be protected from offenders and alleged offenders-Releasing accused persons back to communities not in the interest of the community- Accused exposing community to risks and dangers associated with crime-one proposed guarantor is a neutral person – nomination of a neutral person as guarantor is approved.- Nomination of a cousin sister is not approved - possible apprehension of bias and placing themselves in a conflict of interests situation- Bail is refused.

Cases cited:

Herman Kagl Diawa [1980] PNGLR 148
Re Fred Keating [1983] PNGLR 133
Cletus Waffi v. The State (2010) N4078
Casper Wynneberger –v-The State (2010) N4077
State-v-Beko Job Paul [1986] PNGLR 97
 Heisi Tau v. The State [1999] N1937
The State-v-Philip Maru and Arua Oa [2001] N2045

Counsel:

Mr. B. Ovia, for the Applicant 
Ms. B Gore, for the Respondent

RULING

21 April, 2010

1. KAWI, J: The applicant Floyd Kohai applied for bail under Sections 4 and 6 of the Bail Act. He is charged with one count of harboring prison escapee John Siko Wel knowing full well that John Siko Wel was a prisoner, who escaped from lawful custody at the Bomana Prison contrary to section 141 of the Criminal Code.

Facts

2. The Police summary of facts alleged that on Sunday 7th February, 2010 between 6:30pm and 7:00pm Joseph Floyd Kohai was at Esala Street, Gerehu Stage 4, National Capital District. 

3. It is alleged that the accused transported prison escapee John Siko Wel in a Gold Toyota Camry Sedan bearing the registration number BBT - 228 from Gerehu Stage 4 to Laurina Place to Gerehu stage 3B. Police were informed of this and after interrogating him, he led Police to where the escapee John Siko Wel was and he (John Siko Wel) was captured. 

4. It is alleged that the accused did admit picking up John Siko Wel and driving him to Gerehu Stage 3B where he was hiding until his re-capture. The said John Siko Wel was currently serving a life imprisonment sentence when he escaped earlier this year together with well known alleged bank robber, William Nanua Kapris and other hard core criminals. 

5. In support of his application for bail the accused filed and relied upon the following affidavit materials:

(a)	Affidavit of the applicant/accused sworn on the 18th March 2010.

(b)	Affidavit of Allan Paniu sworn on the 18th March 2010.

(c)	Affidavit of Christine Nowere also sworn on the 18th March 2010.

6. Allan Paniu and Christine Nowere are the two proposed guarantors. Both proposed guarantors pledge a surety of K 300.00 each to be paid if the accused skips bail or breaches other bail conditions.

Grounds Relied Upon

7. Reading from the affidavit material filed in support of the application, it appears that the accused relies upon the following as his grounds for the bail

(a)	The welfare of the family. It is submitted here that the applicant is married with five (5) children who are all below the age of 10 years. These children are all minors and depend heavily upon the accused person for their daily livelihood, up keep and well being. The accused says he is the sole bread winner in his family.

(b)	The other ground being relied upon is to enable the accused person to instruct a lawyer of his own choice who could prepare his case and run his defence in court.

The Law on Bail

8. The law on bail is trite law which has been the subject of countless judgments of both the National and Supreme Courts in this jurisdiction in many cases. Since it is trite law, I need not repeat every detail of it save to reiterate the following summary of the legal principles which has been said many times: 

(i)	A person arrested and charged with an offence is entitled under section 42(6) of the Constitution to bail at anytime except for wilful murder and treason but a bail authority still has the discretion to refuse bail "if the interest of Justice otherwise requires''. See The State-v-Herman Kagl Diawa [1980] PNGLR 148.

(ii)	Section 9 of the Bail Act prescribes circumstances in which bail may be refused. These section 9 prescriptions qualify the right to bail under Constitution section 42 (6). 

(iii)	The existence of one or more of the considerations under section 9 of the Bail Act may operate as a bar to or form the basis for the refusal of bail but that is not automatic. There is a discretion vested in the Bail Authority to grant bail if any applicant for bail is able to show by appropriate evidence that his continued detention in custody is not justified. The existence of one or more of the considerations under section 9 is no reason for the refusal of bail - See Re Fred Keating [1983] PNGLR 133.

(iv)	The burden to produce appropriate evidence to form a foundation for a grant of bail is not a difficult and complicated one because by virtue of section 9(2) of the Bail Act, the application of strict and technical rules of evidence and procedure are excluded. 

(v)	The list of circumstances under section 9 of the Bail Act are not exhaustive and conclusive and the court still has the discretion to take into account any other considerations forming the basis of a particular bail application.

9. For completeness sake I will repeat section 9 of the Bail Act which is stated in the following terms:

 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:–

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

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

(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;

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

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

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

(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;

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;

(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;

(j)that the alleged offence is one of breach of parole.

10. Let me now address the grounds relied upon by the accused. The first ground submitted by the accused is that it is for the welfare of his family that he be released on bail. He argues that he has five children all under the age of 16 and are so dependent on him for their daily survival and upkeep, him being the only bread winner in the family. He argues that his continued detention in custody deprives his young family of his continued support.

11. Family concerns are a very common claim by all bail applicants that their family will suffer unless they are released on bail. In my view the applicant must point to some specific instances of how his family is suffering as a result of him being detained in custody. In his affidavit he does not point to any specific instance of the family suffering. 

12. The accused did not depose to any facts in his affidavit outlining the living conditions of his young family. Neither did he depose to the state of the health of his wife or his five (5) young children. He did not even annex a Medical Report to verify the decline in the health status of his family. Neither did he annex a Welfare Report deposing to the general living conditions of his whole family and their social situation. There is nothing on file to show that the general living conditions of his family has worsened since their father, the applicant, was taken into custody compared with the period before detention. The applicant did not even specify the nature of his family's suffering and the extent to which the suffering is having a toll on his young family because of the absence of their father from the house. 
In absence of all these documentary evidences, how does he expect me to believe him? In my view the applicant must point to specific instances of suffering; he cannot just rely on some general statements that his family will suffer if he is not released on bail. Accused persons and those who have the propensity to engage themselves in criminal conduct must realize and take full stock of the consequences of their criminal conduct. And I will not readily exercise my discretion to grant bail on the basis of the consequences arising from criminal conduct.

13. I adopt what my brother Kandakasi j said in relation to Family Welfare being raised as a ground for bail in the case of The State-v-Philip Maru and Arua Oa [2001] N2045

"Finally, it is a common claim by all bail applicants that their family will suffer unless they are released from bail. There is the presumption of innocence on the one hand and on the other hand is a presumption that a legitimate process has been set in motion on some proper legal basis. If an applicant's family is put to some suffering of some sort by their arrest and detention, it is their own doing. The effects of their conduct should not form the basis for an exercise of the discretion vested in a bail authority, to decide whether or not to grant bail". 

14. I adopt those comments and apply them as being equally applicable in the circumstances of this case. The accused should have foreseen that by being in the company of a well known chronic prison escapee and harboring him by driving him to his specified destination, he was already putting the welfare of his young family at risk and the dangers arising from being associated with criminal elements. The effect of his own conduct should not be the basis for an exercise of discretion to grant bail. He cannot now turn around and argue that his arrest and detention is putting his family to some suffering. He should have known better as after all he is employed by a law firm. 

15. This is not a good convincing ground that would warrant the exercise of my discretion to release the accused on bail.

16. The next ground which the applicant urges me to consider in exercising my discretion to grant bail is that I should grant bail to enable him to seek legal representation. The irony in this ground as I see it is the fact that the applicant is already represented in this bail application by a very experienced counsel from a private law firm. He already has the services of a private legal firm. The accused does not need to be on bail to give instructions to his counsel to prepare his defence in Court. In my view to be granted bail for the purpose of securing legal representation is not a convincing ground that warrants the exercise of my discretion to grant bail. 

17. All in all I find that the accused has not discharged the burden of showing why his continued detention in court is not justified. For all this reasons, I will refuse bail and order the continued remand of the accused in custody.

OTHER CONSIDERATIONS

18. In advancing these grounds learned counsel for the accused submitted very strongly that the considerations stipulated under section 9 of the Bail Act are not present, a point which the learned prosecutor correctly conceded. But she submitted that just because the section 9 considerations are not present does not mean that bail is automatic. I agree with and endorse the submissions of the learned Prosecutor. The fact that these considerations are not present is no license to have the accused released on bail. In other words the fact that these considerations are not present does not mean that the accused will be released on bail as a matter of course. 

19. Bail involves the exercise of discretion and it is incumbent upon the accused to show convincing reasons why I should exercise my discretion to grant bail. The accused has to discharge this burden by the production of appropriate evidence to lay the factual foundation for me to exercise my discretion to grant bail. But discharging that burden is not a complicated task because by virtue of section 9(2) of the Bail Act, the application of strict and technical rules of evidence and procedure are excluded. 

20. The learned Prosecutor strongly submitted that I should consider the nature of the offence itself which she argues is a sufficient factor that would operate as a bar to the exercise of discretion to grant bail.

21. The crime of harboring an escapee is a very serious crime. Society's abhorrence to this crime is reflected in the Criminal Code provisions making the harboring of escapees, a serious indictable offence. The penalty prescribed for this offence is a term of imprisonment not exceeding two years. This is a clear indication of society's abhorrence to this heinous crime. 

22. In The State-v-Beko Job Paul [1986] PNGLR 97 Wilson J, made it clear that the nature of the offence itself may have the effect of operating as a sufficient factor to refuse bail, unless the Court is convinced that the continued detention is not justified.

23. The accused is alleged to have assisted and harbored prison escapee, one John Siko Well who along with notorious alleged bank robber William Nanua Kapris escaped from the Bomana prison earlier this year. William Nanua Kapris is said to be the alleged mastermind behind the bank robberies in Kerema and Madang which in turn left a trail blazing with many possible suspects traversing many possible provincial locations including Gulf, Morobe, Madang, Central Provinces and of course, Port Moresby. This trail suggest a well planned and organized crime network of myriad proportions involving many people to raid and siphon-off the millions of Kina stolen from the two banks. The magnitude and complex nature of the principal robbery offences allegedly masterminded by a chronic prison escapee and his network of criminal associates cannot be simply ignored. 

24. And whether or not John Siko Wel is directly or indirectly related to these robberies cannot be simply underestimated and brushed aside either. The offence under section 140 implies that the accused person must have done something towards concealing the escapee or assisting the escapee to remain at large. Here the accused is alleged to have driven the escapee from one destination to another destination with only one purpose in mind: to conceal his movements so he remains at large and undetected by Police.

25. In my view, the nature of this case falls into a classic statement by Wilson, J in the State v. Beko Job Paul which I adopt that "the interests of justice are not served by failing to give special significance to this type of crime and the consequences that flow, or could flow from it." 

26. Because of the serious nature of this case, I find that the accused has not discharged the burden to convince the court as to why his continued detention is not justified. I would also refuse bail for this reason.

27. There is yet another matter which neither counsels addressed me on.

28. And that is this. While I have to consider the interests of an accused person to be released on bail, I am also very mindful of the interests of the community at large and the law abiding citizens which needs to be protected at all times from offenders or from those who are alleged to have offended.

29. The notion of community interests is well encapsulated in the phrase ''the interest of Justice,'' as used in Section 42(6) of the Constitution and Section 3 of the Bail Act. In Heisi Tau v The State [1999] N1937, Sakora, J made it clear that the notion of Interest of Justice included in the provision of Section 42(6) of the Constitution and Section 3 of the Bail Act "is concerned with protection of the community, the law abiding people, from those who offend (or are alleged to have offended) against them until such time as guilt or innocence are fully and finally determined according to law."

30. His Honor further stated: 

"In my opinion, the inclusion of those exceptions (to the availing of the right or entitlement) was a deliberate legislative act to ensure that interests of justice is accorded due recognition and consideration, and, where appropriate, held to prevail over the individual rights and interests of the accused person. This would suggest that the criminal laws of the country are to be enforced without exception, and equally, and that those who have (or are alleged to have) offended against society or community's laws and rules are made to realize that they have forfeited their right to live and move around freely."

31. Accused persons must realize that they have forfeited their rights to live and move around freely in society, the moment they are suspected of a crime and are arrested and taken into lawful custody. They have forfeited that freedom. The interests of the law abiding citizens must be protected from offenders or those who are alleged to have offended. Here the accused is alleged to have harbored a well known criminal who was imprisoned for life by the National Court. By taking steps to conceal and harbor a well known criminal, the accused was exposing not only his Gerehu community but the whole NCD community in general to the risks and dangers the said John Siko Wel and those who associate with him could perpetrate upon a peace loving and law abiding citizens. These peace loving and law abiding citizens must be protected at all cost from the risks and dangers posed by those who offend or are alleged to have offended against society. By associating himself with a well known criminal, the accused is also exposing his own family to the risks and dangers associated with crime. I am of the view that the wider Community interests should prevail over an individual interests to be out on bail. These Interests of community need to be protected from offenders and alleged offenders and hence releasing the accused person back to his community is not in the interest of the community

32. All in all this court is not satisfied that the accused has discharged the burden of showing why his continued detention is not justified. For all this reasons bail shall be refused and the accused is hereby ordered to be remanded in custody until trial of this action.

GUARANTORS

33. The accused nominated two persons as guarantors. Mr Allan Paniu and Ms Christine Nowere. Mr Paniu is employed by the National Judicial Staff Service and is a friend of the accused, both having played soccer for the same soccer club. He is independent and is not related to the accused in any way. I would approve his nomination as a guarantor.
 
34. But I cannot say the same for Ms Christine Nowere. She is the other proposed guarantor and is a close relative of the accused. The Supreme Court issued a caution relating to a possible apprehension of bias and the possibility of placing themselves in a conflict of interest situation when nominating relatives as guarantors. The Supreme Court said this;

''We have noted that, the proposed guarantors are all related to the two applicants. On these grounds 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 is a neutral person.''
Malaki Kongo & Joe Akusi v The State [1996]; Paul Guan v The State [1991] N3576.

35. In the Bail Application of Cletus Waffi (2010) N4078, I refused to approve the elder brother of the accused and the uncle of the accused as guarantors. I also refused bail for that reason. I said the same thing in Casper Wynneberger – v- the State when I refused to approve his wife as a proposed guarantor.

36. I made the following comments in both cases:

 '' Being family members, I am very mindful that there may be some bias and conflict of interest involved. The risk of the applicants absconding bail is very real here than if the guarantors were neutral persons. As much as possible applicants for bail must be very careful when nominating relatives and family members as guarantors. Persons who accept to be guarantors should be neutral persons. I do accept that because these are all family members there is a reason to argue that there may possibly be some apprehension of bias and conflict of interest involved. The fear of absconding bail is real here than if a neutral person was nominated.''

37. I say the same thing here. The chance of the accused skipping bail or breaching other bail conditions if granted bail is very real here especially when he is directly associating himself with known criminals Furthermore the possibility of Christine Nowere placing herself in a conflict of interest situation, is real here too than if someone neutral was nominated as a guarantor. There may also be an apprehension of bias here for that same reason. For all these reasons, I would not exercise my discretion and would hereby refuse to approve Ms Christine Nowere as a guarantor. I would also refuse bail for that reason

38. In the end I order that bail be refused and the accused be remanded in custody until trial or bail being granted by another Court. Pursuant to Section 6 and Section 13 of the Bail Act the applicant may make further application to this Court or the Supreme Court at any stage of the proceedings.

_____________________________________________
Kumul Legal services: Lawyer for the Applicant 
The Public Prosecutor: Lawyer for the Respondent