N4578

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No. 427 of 2012

BETWEEN:

KIM KARE EPHRAIM
Applicant

THE STATE
Respondent

Waigani: Kangwia, AJ
2012: 16 And 17 January

BAIL – application for bail – grounds of bail discussed and considered – conditions of refusing bail under s.9 of Bail Act present – likelihood of interference with state witnesses by applicant once bail granted – amount of money stolen not recovered - bail application can be made after police investigations are complete – bail refused – s.9 Bail Act

Cases cited: 

Re Fred Keating v The State [1983] PNGLR 133

Counsel 

C. Raurela, for the Applicant
T. Ganaii and T. Aihi, for the State

APPLICATION FOR BAIL PENDING COMMITTAL PROCEEDINGS

17 January, 2012

1. KANGWIA AJ: The applicant through his counsel applied for bail while pendency of the Committal proceedings against him. 

2. He was charged with one count of Armed Robbery that was committed at Frangipani Street Hohola. It was alleged that K1.4million was stolen in the robbery. It was also alleged that the planning of the robbery took place at the applicant's residence at Taikone village where they spent the night before the day of the robbery. It was further alleged that after the robbery the applicant received his share of the loot at Tubusereia village.

3. The applicant was a policeman at the time he was arrested. He is said to have been served a notice of penalty by his employer.

4. The applicant relied on his own affidavit sworn on 7 December 2011 and the affidavit of two persons who proposed to be guarantors namely Pastor Asi Henao and Hon. Makena Kila to support his applications.

5. The following reasons were submitted as the basis for the application:

(a)	He needed to be out on bail to defend a notice of penalty served on him by the Police Department during the time prescribed to respond.

(b)	Family welfare issues which included relocation of his family, school fees for his eldest daughter and funeral arrangements for his youngest sister required him to be out on bail.

(c)	The summary of facts had no particulars that link him to the actual commission of the offence of Armed Robbery apart from the allegation of receiving his share. He could have been charged for obtaining stolen property instead of relying on s.7 of the Criminal Code as principal offender because s.7 (a), (b) and (c) did not apply to the applicant.

(d)	Investigation was stated as 'conducted' on the summary of facts but the State now alleges that the investigation is now 'continuing'. It is unclear as to the stage of the investigation against him.

(e)	The considerations of s. 9 of the Bail Act were not present apart from s.(1) (f) that dealt with the likelihood of interference with witnesses. On this it was submitted the applicant is well known as a policeman. His guarantors will ensure his appearance and compliance with the bail conditions. There must be a real threat of interference with witnesses and not mere speculation.

(f)	Even if s. 9 considerations were present the court still had a discretion to grant bail as stated in the case of Re; Fred Keating v The State [1983] PNGLR 133.

(g)	The main actors are in custody as shown by the summary of facts.

6. It was finally submitted that as s. 9 considerations were not present, the applicant had made out a case to warrant the grant of bail.

7. The State objected to the grant of bail. Ms Ganaii of counsel adopted her earlier objections in the applications by the applicant's co-accused. 

It was submitted however that s.9 (1) (g) of the Bail Act was present where the property involved had not been recovered. It relied on the affidavit of Detective Sergeant Joe Puana which deposed of weapons used in the commission of the offence yet to be discovered. 

8. The applicant is now terminated from employment as a policeman and has no proper address. Family concerns were consequences of being charged with a serious offence. The death of a relative has no supporting affidavit.

The issues raised of the summary of facts were matters for trial and not for bail.
The applicant's involvement was allegedly for planning and receiving from the loot which are also matters for the trial. It was submitted that the investigation was still continuing and bail should be refused until after investigations are completed.

9. The issue is whether the continued detention of the applicant was justified given the competing positions of the parties.

10. The general Law relating to bail is that every person is entitled to bail under s. 42 (6) of the Constitution. The primary right under the Constitution is subject to the provisions of the Bail Act. Section 9 of the Bail Act provides the criteria under which bail can be refused. If one of the considerations of s. 9 is shown to be present bail is refused. That does not prevent the exercise of the Court's discretion.

11. In Re; Fred Keating v The State (supra) Kidu CJ and Andrew J held that:

"If one of the considerations in s. 9 is present it does not follow that bail must automatically be refused; there is always discretion in the bail authority to grant bail."

12. The discretion to grant bail is principally based on s. 42 (6) rights under the Constitution and the interest of justice under s.3 of the Bail Act. The presumption of innocence is present at this stage of the criminal process and it gives the impetus to the grant of bail readily.

13. The applicant's reason that stands out as one that would warrant the grant of bail seem to be the issue of defending himself against the notice of penalty served on him by his employer to meet the time requirements. However that would in my view be tantamount to giving disrespect to a serious criminal offence in favour of a disciplinary action. I would loath granting bail for that purpose alone.

14. That is not to say that the other reasons given for the application are not capable of attracting bail. They would have less importance in pursuance of bail in the face of a very serious offence coupled with the presence of s.9 considerations that would negate the grant of bail.

15. Issues of family welfare should not operate as a readily available consideration to grant bail. This is based on the premise that a person who is alleged to have committed an offence chose to forgo the welfare of his family in favour of participating in a criminal activity. It then becomes the consequence of allegedly falling out of line with the law.

16. As to the summary of facts, it is not necessary to provide in detail all particulars of the alleged offence. It would suffice to provide ample information to justify an arrest and a charge there after. Better particulars would naturally follow upon completion of the investigation. That is when proper assessment can be made to ascertain whether the charge preferred from the summary of facts was of any value. Pending the completion of investigations it would be speculative only to argue on issues of relevance, substance or the nexus between the charge and the summary of facts to the proposed position of the alleged offender. 

17. Out of the s.9 considerations, the relevant ones seem to be these:

Firstly, S. 9 (1) (f) raises the likelihood of interference with witnesses or the source of information for the investigator. The basis of success under sub section (1) (f) to refuse bail would have to be based on a real likelihood of interference with sources of information or witnesses and not mere allegations or probabilities. In the present case the applicant being a well known policeman and an alleged beneficiary from the loot would not lack the capability and the knowhow to interfere with sources of information or witnesses.

Secondly, the money allegedly robbed has not been recovered. The allegations are that the applicant received his share of the money. There is a likelihood of the money being concealed or dealt with if the applicant were allowed bail. However, there is a real likelihood that the applicant used up his share and none can be recovered from him given the time between the date of the offence and the date of arrest being two months apart. The onus would be on the prosecution to prove that some or all of the money is likely to be recovered. 

18. It serves no useful purpose to raise the point that the money has not been recovered just to keep the applicant detained when recovery is not possible or unlikely to be made. 

19. Having made those observations and in light of the right to bail available to the applicant under law I would not hesitate to grant bail.

20. However, in the interest of justice now is not the appropriate time to do that. This is solely because the investigations have not been completed. That situation leaves open the likelihood of State witnesses or source of information for investigators to be interfered with. It also leaves open the possibility that the investigation may lead to recovery of the loot or some of it while the applicant is still in custody.

21. Investigation would be deemed complete when the hand up brief is served on the applicant. By that time the investigators would have collected all the necessary information to prosecute the applicant. On the same note they would have recovered some of the stolen money. Otherwise it would be a futile wait.

22. If they have not been able to do that, they would not succeed in keeping the applicant detained for the same reasons with a future hope of recovering the money or the firearms.

23. Bail is refused pending the completion and service of the hand up brief.

____________________________________________________________
Raurela Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State