N4576

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No. 398 of 2011

BETWEEN
BEN JULES

AND
THE STATE

Waigani: Kangwia AJ
2012: 13 & 17 January 
BAIL - Application for bail pending Committal proceedings – Entitlement to bail in the exercise of discretion - Interim judicial freedom- reasons not relevant relied on – Issues of family welfare should not operate as a readily available ground for bail – Presence of S. 9 considerations grounds to refuse bail – Bail refused in the interest of justice pending completion of investigations.
Cases Cited:      
 Re Fred Keating v The State [1983] PNGLR 133
Counsel:	

G .Konjib, for the applicant
T. Ganaii, for the Respondent

17 January,  2012 

1.      KANGWIA AJ; The applicant through an amended notice of motion moved for orders to grant him bail during pendency of the committal proceedings pursuant to section 42 (6) of the Constitution and section 6 of the Bail Act (the act hereon).
2.     The applicant was charged with one count of armed robbery after a robbery was allegedly committed at Frangipani Street where more than one million kina was stolen. The applicant drove the escort vehicle for the vehicle conveying the money.
3.     The reasons advanced for bail are;
1.	That he has no prior criminal record and he had denied the charge. He had also signed a prepared statement under duress.
2.	He did not use any firearm nor was he a part of the group that committed the actual offence.
3.	His family will suffer with his continued detention.
4.	He proposes to assist police with their investigations as it was through his co-operation that several suspects have been arrested and money recovered.
5.	That he has a fixed address where he will live and comply with any bail conditions set.
4.     In support of the reasons he relied on his own affidavit sworn on 03rd November 2011. He also relied on the following affidavits;
1.	Affidavit of Pastor Garona Vere who volunteered to be a guarantor.

2.	Affidavit of Verave Gavali deposing of the Applicants good criminal record.
3.	Affidavit of Vincent Aonga who also volunteered to be a guarantor.
4.	Affidavit of Pastor Marcel Kekele deposing to the applicant being a person of good character.
5.	Affidavit of Boni Jules who is the Father. He deposed of the family pledge of K1000.00. 
5.      Mr. Konjib on behalf of the applicant submitted that the applicant was a first offender and not part of the group that committed the offence. He was part of the escort and did not use any of the alleged firearms. He signed a prepared confession under duress. He has a family who will suffer during his detention. He proposed to assist police investigators. He also had a fixed address and not a threat to society.
6.     Ms Ganaii objected to the grant of bail as follows;
1.	The matter is pending Committal hearing where investigations are also pending.
2.	The offence involves a substantial amount of money which has yet to be recovered.
3.	Firearms were used in the Commission of the alleged offence.
4.	Issue of indemnity is not yet available as it is up to the Public Prosecutor to grant immunity.
5.	Applicant would be at liberty to apply for bail after investigations are completed.
7.      The applicant is charged with an offence for which he is entitled to bail pursuant to Section 42 (b) of the Constitution. That entitlement is subject to Section 9 of the Bail Act which provides the criteria to refuse bail. If any of the considerations in Section 9 are present bail would be refused. However, the Court still has discretion to grant bail despite the presence of Section 9 consideration.
8.     In Re Fred Keating v The State [1983] PNGLR 133 the Court by majority (Kidu CJ and Kearrey J) held that;
 “If one of the considerations in Section 9 is present it does not follow that bail must automatically be refused; there is always discretion in the bail authority to grant bail”.
9.     The discretion is exercised to give interim Judicial freedom to an accused as is envisaged by section 42 (6) rights of the constitution. The interim judicial freedom can only be given pursuant to section 3 of the Bail Act in the interest of Justice despite the presence of Section 9 considerations.
10.     In the present application the applicant relied on reasons not relevant to the grant or refusal of bail. They include his no prior criminal record, no direct involvement in the Commission of the Offence and no use of firearms. 
11.     These are matters that would adequately be raised at trial or for sentencing purpose after a guilty verdict.
12.     As to the issues of family welfare I would be less inclined to exercise discretion to grant bail. The applicant was charged with a very serious offence. The charge itself should be respected for what it is despite it not having been proved yet. Once a charge is laid it raises a presumption that the person charged had fallen out of line with the Law. The consequences of this are many and varied but the inescapable one is the issues relating to the welfare of families.
13.     It seems to arise at all stages of the criminal process, when it is not even explained why welfare of the family never occurred to a person at the time of the alleged commission of the offence.
14.    Why should the Court concern itself with an offender’s family when he himself was not concerned one bit in the first place?
15.     On this basis it is my view that issues relating to the welfare of a family should not operate as a readily available basis to attract the exercise of discretion to grant bail.
16.     His proposal to assist police investigations may secure an indemnity but at the time of this application there was nothing to show that it was available. It may be available to him later.
17.     He has yet to negative the confession he signed allegedly under duress. The alleged confessions are quite detailed and I pause to think how someone else would prepare a statement in that manner and impose upon an offender to sign. That is a matter that can be a basis for a voir dire and should not operate as a basis for bail.
18.     I am satisfied that the applicant has good reference from people with standing in the community. He has a fixed address where he will reside. There is no doubt he will comply with the bail conditions. He has reputable persons who proposed to be his guarantors. These all go to give credibility to his application for bail.
19.     Two considerations under S. 9 of the Bail Act still standout. First is that there is no evidence that any of the money has been recovered. The applicant may assist the investigators in that respect. It is up to the investigators to weigh that option and not for the Court to determine.
20.    Second is the likelihood of interfering with witnesses. Although the prosecution did not raise it there is a likelihood that witnesses may be interfered with given his seemingly robust association with the co-accused and his seemingly huge background knowledge of the alleged offence coupled with his receiving a share of the loot. 
21.     I would not hesitate to grant bail despite the competing factors discussed so far. However given the competing factors, it is in the interest of Justice that bail be refused until after investigations are completed or immunity is given whichever occurs first.     
________________________________________________________________
Konjib & Associates Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State