N4078

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No. 08 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:

CLETUS WAFFI
Applicant

AND:

THE STATE
Respondent

Waigani: Kawi, J
2010: 23rd February & 2nd March

CRIMINAL LAW – Practice and Procedure – Bail application – Offence of accessory after the fact to a crime – allegation that applicant assisted a suspect in two major bank robberies – Whether the considerations under section 9(1)(c),(f) and (g) relate to the alleged offence against the applicant or the principal offence – Relatives as guarantors. Need for guarantors to precisely identify location – family members proposed as guarantors - possible apprehension of bias and conflict of interest by Guarantors – Bail Refused.

Cases cited:

State v. Roy Nana [1986] PNGLR 83
Re Fred Keating v. The State [1983] PNGLR 133
Joyce Maima & Reuben Micah v. The State (2008) N3611 
Lance Moha v. The State, Unreported Judgment of Kariko, J dated 17th December 2009
Tamara Player v The State, unnumbered judgment- MP 538 of 2008, 17th March 2009
Jesse Suah and Samuel Job v. The State, unnumbered judgment of Paliau, AJ dated 19th May 2009
Charlie Posanau & David Koyama v. The State, unnumbered judgment (NO2 & 3) dated 1st May 2009
Malaki Kongo & Joe Akusi v. The State [1996] N1544
Paul Guan v. The State [1999] N3576

Counsel:

Mr. M. Yawip, for the Applicant 
Mr. D. Kuvi, for the Respondent

RULING

02nd March, 2010

1. KAWI, J: The applicant Cletus Waffi applied for bail pursuant to Section 4 and 6 of the Bail Act. He is charged with being an accessory after the fact contrary to Section 519 and Section 10(1) of the Criminal Code. The charge arises out of his alleged role in assisting the principal suspect, William Kapris Nanua who is alleged to be the principal offender in the robberies of the BSP Bank in Kerema and in Madang. The accused is alleged to have helped the principal offender, William Kapris Nanua escape the consequences of these robberies.

FACTS

2. The brief facts constituting this charge are taken from the short statement of facts which is annexed as annexures ”A” and ”B” to the affidavit of Cletus Waffi sworn in support of his application on the 15th of January, 2010. On Thursday the 18th of February 2008, the applicant and 24 other co-accused were in three convoyed vehicles together with the principal suspect, alleged to have been William Kapris Nanua on their way to the Aroma coast. After receiving a tip off, Police mounted road blocks at the Kwikila station and the Gabagaba village turn off. Whilst along the highway police first sighted the vehicles between 11:30pm and 12:00pm and kept track on them while informing their in-stationary units at Kwikila.

3. It is alleged that the principal suspect, William Kapris Nanua and four other accomplices who were with him in the same vehicle were alerted of police presence in Kwikila by the first two vehicles. The applicant Cletus Waffi is alleged to have been in one of these two vehicles in front. As a result of the tip off from the vehicles in front Kapris Nanua and his vehicle then turned back and headed for Port Moresby. They were however stopped at the Police road block and William Kapris Nanua was apprehended, along with his four accomplices. All the other accomplices in the other two vehicles were apprehended as well at the Kwikila station.

4. They were all conveyed back to the Boroko Police Station where they were arrested and charged. The applicant is alleged to be among this group of suspects when he was apprehended and charged with the offence of being an accessory after the fact contrary to Section 519 and read together with Section 10(1) of the Criminal Code. 

Application for Bail

5. In support of this application for bail the accused relied on three affidavits:

(a)	His own affidavit sworn on the 15th January 2010;

(b)	The Affidavit of Linus Waffi, the younger brother of the applicant sworn on the 20th January 2010;

(c)	The affidavit of Elizah Wangu, the uncle of the accused also sworn on the 15th January 2010.

6. The accused advances and relies upon the following grounds in his bail application:

(a)	He has been threatened and intimidated by fellow inmates in the main prison compound after his transfer from the Maximum Security Unit. 

(b)	Continued detention is depriving the accused from seeking employment. He argues that he has applied for jobs, but missed the opportunities to go for interviews because of his continued detention. Bail whilst awaiting trial would enable him to seek useful employment.

(c)	The accused has been in custody for one year and five (5) months now. Continuous detention would deprive him of a right to a fair and speedy trial.

(d)	He further submits that none of the considerations enumerated under Section 9 of the Bail Act exists and so he should be granted bail.

Objection by the State

7. The State on the other hand opposes bail. It relied on the affidavit of one Detective Constable Remmy Jogioba who is attached to the Major Organized Crime Intelligence Team (MOCIT) located at the Boroko Police Station.

8. The State advanced three grounds in its objection to bail which are all based on the Section 9 considerations.

(a)	The first is that the principal offence over which the accused is charged as being an accessory after the fact involves substantial amount of money stolen from the Kerema and Madang BSP Bank robberies. Most of these monies have not been recovered yet and there is a risk that allowing the applicant to go on bail would jeopardize and make efforts to recover these monies difficult - Section 9(1)(g). 

(b)	Secondly the nature and gravity of the offence is very serious and in the interest of justice the applicant should be refused bail. The principal offence with which Kapris Nanua is charged with consist of serious assault, threats of violence and possession of offensive weapons, namely firearms – Section 9(1)(c). The State argued that all the considerations under Section 9(1)(c) are present and bail should be refused. 

(c)	It was also submitted that holding the accused in custody was for his own safety. Because of the enormity and probable links to the alleged mastermind and principal offender, William Kapris Nanua, there is a risk to the applicant’s own safety as well. Therefore, it was necessary for his own protection that he remained in custody - Section 9(1)(e).

9. The accused is charged with being an accessory after the fact which is contrary to Section 519 and Section 10(1) of the Criminal Code. The offence of being an accessory after the fact can only arise out of a principal offence committed by some other person. An accessory is not the chief actor at the commission of a crime nor present at its perpetration, but yet he or she is in some way concerned therein either before or after the fact committed. In the State v. Roy Nana [1986] PNGLR 83 McDermott, AJ held that for purposes of being charged as an accessory an accused must do some act, in order to enable the principal offender to escape detection and punishment. 

10. His Honour Kirriwom, J was more explicit on the part played by accessories. He described the roles played by accessories in the related case of Joyce Maima and Ruben Micah (2008) N3611 as follows:

“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.”

11. So I ask myself, what act did the accused do or engage in, in order to enable the principal offender, William Kapris Nanua escape detection and punishment?

12. The summary of facts alleges that the principal offender William Kapris Nanua was in another vehicle and was alerted of Police presence at Kwikila by the first two vehicles and turned back heading towards Port Moresby. It is alleged by Police that he turned back to Port Moresby to avoid detection and punishment. 

13. At this stage I am not sitting to determine exactly who in particular alerted, Kapris Nanua of Police presence at Kwikila and Gabagaba village turn off. When deliberating on the question of bail, one need not consider the material or information available in support of or against bail in minute detail and apply to it, a higher standard of proof. Section 9(2) of the Bail Act states that the Court is not bound by strict and technical rules of evidence, but may act on such evidence available to it.

14. This in my view extends to discretionary admission of facts in the interests of justice. If I am satisfied on reasonable grounds that one or more of the Section 9 considerations exists, on the evidence available, then I must refuse bail. If they do not exist, then I must grant bail.

15. I am however satisfied that one of the co-accused traveling in one of the two vehicles in front alerted Kapris Nanua not to proceed to Aroma coast that night, but to turn and travel back to Port Moresby. I find that the facts as alleged are sufficient to implicate the accused as being an accessory after the fact.

The Law

16. The law on bail has been clearly stated in many cases. Section 42(6) of the Constitution guarantees “a person charged, arrested or detained for an offence (other than treason or willful murder as defined by an Act of Parliament) ……to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise requires.” An applicant is entitled to bail which must be given readily. The Bail Act than gives effect to Section 42(6) of the Constitution.

17. This right to bail is qualified by the prescriptions enumerated under Section 9 of the Bail Act. This means that bail should not be declined unless one of more of the considerations under Section 9 of the Bail Act exists. Even where one or more of the Section 9(1) considerations are shown to exist, the Court still has the discretion to grant bail, with the applicant bearing the onus of satisfying the Court as to why his continued detention in custody is not justified – Re; Fred Keating [1983] PNGLR 133. Section 9 of the Bail Act is as follows: -

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.

18. Let me now consider the objections raised by the State. The first is Section 9(1)(c).

19. Kirriwom, J refused bail in the related case of Joyce Maima and Ruben Micah v The State, unnumbered judgment MP 41 of 2008, 15th October 2008. Batari, J followed Kirriwom, J and refused bail in Tamara Player v The State, unnumbered judgment MP 538 of 2008, 17th March 2009. In that case Batari, J referred to the enormity and the serious nature of the two bank robberies and the role played by the applicant and her assistance and concluded: 

"These considerations in my view are sufficient to negative the presumptive right to bail under section 42(6) of the Constitution and the Bail Act. In my view, the nature of this case falls into a classic statement by Wilson, J in the State v. Beko Job Paul (supra) which I adopted 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."

20. In Jesse Suah and Samuel Job v The State the allegations against the applicants were the same as the applicant now before me. In the Jesse Suah and Samuel Job case, the State objected to bail and relied upon an affidavit by the Police investigator. Paliau, AJ relied on the decision in the Tamara Player case and refused bail. His Honour referring to the seriousness of the case said:

The alleged bank robbery and escape by suspect William Kapris 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 Section 9(1)(c) are made out against the applicants.

21. Batari, J. and Paliau, AJ took into account the enormity and seriousness of the offence in finding that the considerations under Section 9(1)(c) existed and so bail was refused. Whilst not down playing the seriousness of the offence for which the applicant is charged with, it is my view that the offence contemplated by Section 9(1)(c) must be the offence for which the accused is charged with and taken into custody. It cannot be any other offence. In this regard I concur with Kariko, J who took this approach in the related case of Lance Maho v. The State, unnumbered and unreported dated 17th December 2009. Counsel for the applicant did cite this decision in his submission but neither him nor the Prosecutor could provide me with a copy and so I had to locate a copy from Kariko, J's chambers. In his ruling granting bail, His Honour made the following remarks concerning Section 9(1)(c).

"The offence contemplated by Section 9(1)(c) must be the offence in respect of which the person is in custody. It is clear that the offence to be scrutinized is the offence for which the applicant has been charged and remanded in custody. It does not include another offence (related or not to the offence with which the applicant has been charged) nor does it mean to include another offence for which he has been charged. This is clear from the plain and ordinary reading of the provision."

22. It would follow from this approach by Kariko, J that the primary offence for which the applicant is charged and remanded in custody is not robbery, but being an accessory after the fact. Being an accessory is the offence that must be scrutinized and not robbery. In other words, robbery involves the use of firearm, and serious assault, threats of violence to another person, possessing firearms or the use of other offensive weapons. But this is not the primary offence with which the accused is charged with. The primary offence with which the accused is charged is that of being an accessory. There is no evidence to show that being an accessory the accused was involved in serious assaults, violence or threats of violence and possession of other offensive weapon. I therefore find that the State has not made out a case under Section 9(1)(c). 

23. I now proceed to consider the State's objection based on Section 9(1)(f). It is submitted that if released on bail the accused is likely to interfere with State witnesses. Again in the Lance Maho case, Kariko, J took a similar approach in statutory construction to the objections raised by the State based in Section 9(1)(f) – interference with witnesses. Giving a plain an ordinary meaning to Section 9(1)(f), His Honour had this to say: -

"Again it is clear than on a plain and ordinary reading of section 9 (1)(f), "witnesses" necessarily refers to the witnesses in respect of the charge against the applicant. This provision is concerned with interference with "witnesses or the person who instituted the proceedings." The proceedings must be those that relate to the charge against the applicant and it must logically follow that the witnesses must be witnesses in respect of the charge against the applicant. The Section cannot be interpreted to mean the witnesses in the principal offence or any other witness. Such a construction would render an absurd result and would not be in accordance with the intent of the provision.'' 

24. On this basis His Honour held that the ground under section 9(1)(f) has not been made out. I agree with the statutory construction by Kariko, J. On a plain construction of this provision witnesses here relate to the witnesses in the charge based on an accessory after the fact and I do accept State fears of the likelihood of the applicant interfering with State witnesses in the charge of being an accessory after the fact. In his affidavit the applicant undertook not to interfere with State witnesses. This is easier said than done and I do not give credence to the applicant's undertakings in this regard. The applicant is only one of the many that are implicated and charged. The bank robberies in Kerema and Madang 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 network of myriad proportions involving many people to raid and siphon-off millions stolen from the two banks. The magnitude and complex nature of the principal robbery offences allegedly masterminded by a chronic prison escapee cannot be simply ignored. 

25. There may be many witnesses, from amongst the rank and file of police personnel and members of the civil society at large, who will be required to give evidence of the charge of being an accessory after the fact. I do find that there is some real likelihood of the applicant interfering with State witnesses in the charge of being an accessory after the fact. 

On this basis I find that the objections based on Section 9 (1)(f) has been established. 

26. The State's next objection is based on Section 9(1)(g). It is argued that a very substantial amount of money was allegedly stolen by Kapris Nanua and his accomplishes in the Kerema and Madang Bank robberies. If released on bail the accused will make efforts to assist others in concealing this money and so render Police efforts to recover these monies difficult. Section 9(1)(g) refers to the "alleged offence''. The ''alleged offence'' in this case is not robbery, but being an accessory to this robbery. Robbery is the principal offence, but the ''alleged offence" referred to in Section 9(1)(g) is the offence for which he is charged namely being an accessory after the fact contrary to Section 519 of the Criminal Code. Again I accept the reasoning of Kariko, J in the Lance Moho case. His Honour said this -

"In any case, section 9(1)(g) relates to "the alleged offence", and from the plain reading of it, the reference is to the offence alleged against the applicant, which is the charge under section 519 of the Criminal Code and no other, including the principal offence. I should add here that this interpretation similarly applies to the criteria spelt out in section 9(1)(i) and (j)."

27. On the alleged facts giving rise to this charge, I am not satisfied that the ''alleged offence" involved a substantial amount of money. Certainly the affidavit of Detective Constable Jogioba did not adduce any evidence for the State to form the basis of this objection. I find that the objection under Section 9(1)(g) has not been established.

Other considerations

28. The applicant further submitted that I should nonetheless exercise my discretion to grant bail in the interest of justice, citing the case of Re; Fred Keating as authority for this proposition. In this regard, he submitted that I should take into account the following in exercising my discretion: - 

(a)	The threats to his safety in the main prison compound. No report from prison authorities was submitted to verify such threats, with the accused himself admitting that "whilst we would like to report such matters to CIS officers, to do so, would worsen the situation." No other instance of any such threats was deposed to in the applicant's affidavit. I am not satisfied with such a mere assertion. 

(b)	The accused also submitted that cell conditions were unfit for human-habitation and so the risk of contracting contagious diseases is very real. Again I have not been provided with a medical report to verify the allegations. The applicant himself did not depose to the cell conditions in detail, apart from alleging over crowdedness and the risk that flows there from. He did not state the maximum number of people residing in one cell block and the minimum each cellblock can hold. I am therefore not satisfied as to this ground. 

(c)	The applicant also submitted that his continued detention is not justified because he has so far spent 1½ years in custody. Now that police investigations are completed, he wants a speedy trial. His counsel argued that he should be granted bail and while awaiting trial he can follow up with the many missed job opportunities for which he was short listed, but because of the time spent in custody he missed all those interviews. The State submits that the accused has already been committed to stand trial and his case is only awaiting for the Judge administrator to allocate a trial date. And so I must exercise my discretion to grant bail in the interests of justice. To grant bail to enable the accused to look for employment opportunity is not sufficient to satisfy me to exercise my discretion in favour of granting bail. I accept the State submission that this matter is only awaiting a trial date to be given. This being so it cannot be said that the applicant is being deprived of a right to a fair and speedy trial. 

29. In the end I find that the accused has not discharged the onus placed on him to satisfy me to exercise my discretion to grant bail. For all the foregoing reasons, I refuse bail. I would also refuse bail for another reason and this relates to the question of Guarantors. 

Guarantors

30. The accused nominated two guarantors who both deposed to affidavits. The first guarantor is Mr. Elijah Wangu. Mr. Wangu deposes that the accused is his nephew and was residing with him at Membi Street, Defence Flat, Korobosea at the time of his arrest. He proposes that if the accused is granted bail, he will reside with him at the Defence Flat, at Membi Street, Korobosea. 

31. The next proposed guarantor is Mr. Linus Waffi. He identifies the accused as his younger brother and both live with their uncle presumably, Mr. Elijah Wangu at the Defence flat along Membi Street, Korobosea. Both guarantors pledged K 150.00 each as surety if the accused absconds bail. They also pledged to make sure that the accused applicant appears at this trial and to comply with bail conditions. 

32. The first thing that strikes me here is that both guarantors are related to the applicant. They are not mere relatives, but are family members. Being family members, I am very mindful that there maybe some bias and a conflict of interest involved. The risk of the applicant absconding bail is very real here then 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. The Supreme Court when refusing bail in Charlie Posanau & David Koyama v. The State made these cautionary remarks in relation to guarantors who are related to the applicant: - 

"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 interests involved. The risk of absconding bail would be much higher as compared to a guarantor who was a neutral person." Malaki Kongo & Joe Akusi v. The State [1996] N1544. See also Paul Guan v. The State [1999] N3576.

33. 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 interests involved. The fear of absconding bail is real here than if a neutral person was nominated. I would not approve the two guarantors as proposed.

34. I would refuse bail for this reason. There is yet another reason why I will refuse bail here. The proposed guarantors say that the accused will live with them at Defence Flat, Membi Street, Korobosea. No specific location of the flat was given except the Street identification. In my view those who accept to be guarantors must identify exactly where they live by giving the Section and Allotment address of their properties. This is very important especially for police to try and locate the whereabouts of an accused person in the event he/she absconds bail. In my view a general street description such as Defence Flat, Membi Street is not enough. It was only upon my inquiries in Court that counsel indicated that the proposed guarantors live in Flat 5A. No section and Allotment details of the Defence Flat was given. A generalized street description is insufficient. I would refuse bail on this ground as well. Accordingly bail is hereby refused and the accused is to be remanded in custody until trial or bail being granted by another Court. Under Sections 6 and Section 13 of the Bail Act, the applicant may make further applications to this Court or the Supreme Court at any stage of the proceedings.

___________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent