N5888

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 578 OF 2014

IN THE MATTER OF AN APPLICATION FOR BAIL UNDER SECTIONS 3 & 6 OF THE BAIL ACT 1977.

BETWEEN:

NHYMBRAE PILAE
Applicant/Defendant

AND:

STATE
Informant/Respondent

Kokopo: Oli, AJ
2014: December 23rd
2015: February 17th

CRIMINAL PRACTICE - Application for Bail under sections 3 & 6 of the Bail Act – Defendant charged with four (4) separate indictable offences out of one event –In particular namely; break and enter and stealing, attempted murder and 2 x sexual offences of touching of private parts – Considered pre-conditions under s. 9 of the Bail Act – It is evident that applicant posed a potential danger to the Kambubu Adventist Secondary School community, including the victims – Considered the interest and safety of the staff at the School Community including students and applicants safety in considering the applicants bail application.

CRIMINAL PRACTICE- Application for Bail under sections 3 & 6 of the Bail Act – Defendant charged with four (4) separate indictable offences out of one event- Considered the nature of the offence itself has the effect of operating as a sufficient factor to refuse bail unless court is convinced that the continued detention by the applicant/defendant is not justified - The applicant/defendants bail application is refused.

Cases Cited:

Re Herman Kagel Diawa v the State [1960] PNGLR 148
Re Fred Keating v The State [1983] PNGLR 133
Beko Job Paul v The State [1986] PNGLR 97
The State v Heisi Tau (1999) N1937
Samuel Arnold and Amon Kale v The State, MP No. 164 and MP 165 of 2010 (unreported)

Counsel

Mr. L. Rangan, for the State
Mr. J. Kusip, for the Defendant

RULING ON BAIL APPLICATION

17th February, 2015

1.	OLI, AJ: The Applicant/Defendant is held in custody because the Applicant/Defendant is alleged to have committed four separate serious indictable offences and has been charged with four separate indictable offences arising out from the same one event. It is alleged that on the night of 13th September 2014 at about 1 am at Kambubu Adventist Secondary School the applicant/defendant is charge with one count of Break, Enter and Steal under section 395 (1) (c) of the Code, one count of attempted murder under 304 of the Code and two count of sexual assault under section 349 (1) (a) & (b) of the Criminal Code (Sexual Offences and Crime Against Children) Act.

2.	The Applicant/Defendant has been charged with attempted murder together with three other indictable offences and he is held in custody at Kerevat Corrective Institution.

3.	The learned counsel for Applicant/Defendant Mr. Kusip file Bail Application pursuant 
to sections 4 & 6 of the Bail Act Chapter 340 and section 155(4) of the Constitution and move this Honourable Court for the following Orders sought that: 

(a) The Applicant/Defendant be granted Bail in the sum of K1000.00; and, 
(b) The Applicant/Defendant to strictly comply with bail conditions set out in the Bail Certificate issued by the Court. 
(c) The following nominated persons agreed to be guarantors and to observe the conditions impose therein and pledge K500.00 as cash surety:

(i). Mr. Rex Orong, a Staff from Kambubu Secondary School, and
(ii). Mr. Micah Wamgon, an Elder with SDA Church at Butuwin. 

(d) Any other Orders the Court deems proper to impose. 
(e) Costs be in the cause.

4. The learned State Prosecutor Mr. Rangan from the outset object to the granting of bail, in principal, to the applicant/defendant. The reasons for objecting to the granting of bail to the applicant/defendant bail application are alluded to in State Prosecutors response, in reply to the substantive submission by the applicant/defendant learned Counsel Mr. Kusip and these reasons are provided hereafter in State Prosecutor's response.

FACTS 
5. The primary facts as alleged in the commission of the four separate indictable offences against the defendant is that on the 13th September 2014 at Kambubu Adventist Secondary School, the elderly women namely Kurap Noel and Agnes Apelis were staying with Mr and Mrs Rauni at their resident at the Kambubu Adventist School.

6. As alleged at or thereabout at 1.30am, on 13th September 2014, the defendant namely Nhymbrae Pilae broke into the house. The defendant arms himself inside the house with two bush knives and picked up a LAPTOP in his hand, which he took inside the house.

7. The defendant then opened the door where the two elderly women were sleeping inside; he switched on the lights before he sexually assaulted the two elderly women. The two women struggled with the defendant, one of the two victims namely Noel Kurapa held on the sharp edge of the knife and received cuts on her right and left hand. The defendant got the bush knife again and chopped Noel Kurapa on her head. He was about to kill the victim with the bush knife but luckily the noise from the victims attracted the public who came and saved the four victims and the defendant escaped while the victims were helped and taken to St Mary's Hospital at Vunapope.

8. The defendant was later arrested and brought to the Police Station, told of his rights under the Papua New Guinea Constitution under section 42 (2) and was charged and placed in cell.

The Bail Application by Applicant/Defendants. 
9. In making the bail application the applicant/defendant, who rely on his affidavit and the other two named guarantor's, who provided separate affidavit in support of the applicant/defendants bail application.

The Grounds rely on for Bail Application
 
10. The Defendant/Applicants Counsel files affidavits in support of the bail application who enjoy the presumption of innocence until proven guilty, apply for bail to be considered and granted under ss. 4 & 6 of the Bail Act and s 155 (4) of the Constitution as of right. The applicant/defendant also provided his affidavits in support of his application together with two Guarantors' Mr Rex Orong, a teacher from Kambubu Secondary School and Mr. Micah Wamgon, an elder of SDA faith with Allan Tagete Memorial Church at Butuwin – Kokopo. Both Guarantors' have deposed separate affidavits and pledge K500.00 cash surety each and promise to abide by the conditions of bail attach to it. Both authors volunteer to be guarantors, however highlight the potential danger that the applicant/defendant will be subjected to at the biggest criminal school, where all inmates are kept at the Kerevat Corrective Institution, if bail is not granted. 

11. Whilst, both guarantor's place great emphasises on the redemptive and rehabilitative consideration factors in favour of the applicant/defendant, but both Guarantors' fail to address and consider the interest of the school community, in view of the potential threat pose by the applicant/defendant to the school community. This is confirmed by the Chief Sergeant Oscar Tobing, OIC of CID at Kokopo Police Station in his letter dated 23rd December 2014 to the State Prosecutor, who highlights serious strings of behavioural issues the applicant/defendant is involved in and or continue to do at the Kambubu Adventist School Community in objecting to the granting of bail to the applicant/defendant.

12. The learned applicant/defendant Counsel Mr. Kusip finally submits that the Bail is a right available to the applicant/defendant as he still enjoys the presumption of innocent until proven guilty. Hence, Bail Act provides for this right as provided under ss. 4 and 6 of Bail Act, but subject to s. 9 of the Bail Act. The learned defence Counsel further submits that conditions provided under s. 9 of the Bail Act do not feature significantly in this case as there is sufficient evidence before the court that the applicant/defendants do not pose a threat, nor there is evidence that the applicant/defendant will interfere with State witnesses, if bail is granted.

Response by the State Prosecutor

13. The learned State Prosecutor Mr. Rangan strongly objects to the bail application from the outset based on a letter dated 23rd December 2014 by OIC CID – Kokopo Police Station Chief Sergeant Oscar Tobing, who made reference to the number of reasons why Applicant/Defendant bail application should not be granted bail and these reasons are as follows:

(1). The Applicant/Defendant has been going into other houses for teachers at Kambubu Secondary School.

(2). The Applicant/Defendant has been insulting and threatening people around the community and also harassing them.

(3). The applicant/Defendant is also involved in drug and alcoholism.

This particular person is one of the kinds that the community is afraid of his action and also their safety is at risk. This is not the first time that he has been doing this. People are not reporting it to Police because of their safety. Hence, the author strongly object to the bail application by the applicant/defendant that he be not allowed on bail for the people's safety at Kambubu Secondary School.

14. In the matter of a bail application in the case of Samuel Arnold and Amon Kale v The State MP No. 164 and MP 165 of 2010 (unreported) by his honour Kawi J. In this case the two accused were charged with series count of six armed robbery charges laid under section 386 (1)(2)(i)(ii)(iii) of the Criminal Code Act. Both of them were remanded in custody awaiting their committal process to be completed. They applied for bail under sections 4 & 6 of the Bail Act. His Honour having considered the Bail Application refused the granting of the Bail to the two accused and held that:

(1). The section 9 (1) (c) (i) (ii) (iii) of the Bail Act is present in commission of the crime,

(2). The accused likely to interfere with State witnesses,

(3). The Constitution s. 42(6) in respect to "interest of justice" is considered however, interest of community and law abiding citizens' take precedent over the accused right to bail,

(4). The Crime of arm robbery is a serious crime and the nature of the crime operates as sufficient factor against bail being granted,

(5). The court could not find evidence of existence of conditions provided under section 9(1) (a) and section 9(1) (d) of the Bail Act.

15. In this case the State Prosecutor strongly object to the granting of bail application on behalf of the applicant/defendant because of the similar compelling reasons refer to in the above case, also featured prominently in this case on foot. I am incline to find that the above case has some similarities in this case, in that there is a series of act of violence and assault featured quite significantly in this case that breached section 9(1)(c)(i) of the Bail Act. The brief facts referred to in this case allege that the applicant/defendant did break, enter and steal during the middle of the night at about 1 am on 13th September 2014, at a Staff House and committed two sexual offences, as well as attempting to murder a victim in the house that night.

16. Whilst State Prosecutor concedes that the bail is a constitutional right available to the applicant/defendants, however, that right is not an absolute right, but subject to the provisions of section 9 of the Bail Act. The section 42(6) of the Constitution also provides that right to bail, unless there is an existence and presence of one of the pre-conditions refers to under section 9 of the Bail Act. The State Prosecutor, however, submit that there is in existence and presence of a condition under section 9(1) (c)(i) of the Bail Act in this case, therefore the bail should be refused. The learned State Prosecutor further submits that State is only required to show the existence and presence of one of the pre-requisite bail conditions under section 9 of the Bail Act. The learned State Counsel submit that the State has demonstrated and established the existence of one of the conditions under s. 9 of Bail Act sufficient to refuse bail application by the applicant/defendant. 

17. The State Prosecutor further submit that the section 9 (2) of the Bail Act provides that in a Bail Application, the strict and technical rules of Evidence Act do not apply. The State in this case has provided a letter dated 23rd December 2014 by OIC CID Kokopo Police Station, Chief Sergeant Oscar Tobing, who is reliably inform by the Case Officer in this case, that the situation on the ground is still tense and volatile, and the Case Officer confirm that the law and order environment, post event after the alleged commission of the four indictable offences by the applicant/defendant during the same event including the attempted murder, should not be taken lightly in view of the applicant/defendant's bail application on foot before the court. 

18. The State Prosecutor submits that the applicant/defendant has not shown any evidential reasons at all in his affidavit as to why he should not be held in custody. In the absence of this justifiable reason that justifies his bail application, the OIC CID Kokopo Police Station, Sergeant Oscar Tobing's letter should be given more weight to maintain law and order and school community status quo at Kambubu Secondary School.

19. The learned Defence Counsel Mr Kusip, in his final remark inform court that the bail is a constitutional right, but it is a discretionary matter for the court to exercise on the merit of the case before it. However, the court is mindful of the fact that applicant/defendant is still presumed innocent until proven guilty through prudent court of law through trial proper, hence this bail application on behalf of the applicant/defendant. 

LAW

20. The law is settled on bail application that accused persons are entitle to bail under the Bail Act 1977, however, when it comes to certain cases such as provided under s. 4 of the Bail Act, the bail authority is vested by law in the National and Supreme Court. The s.4 of the Bail Act reads:

4. ONLY NATIONAL OR SUPREME COURT MAY GRANT BAIL IN CERTAIN CASES.
(1) A person–

(a) charged with wilful murder, murder or an offence punishable by death; or

(b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or breaking and entering a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence,

shall not be granted bail except by the National Court or the Supreme Court.

(2) For the purposes of Subsection (1), "firearm" includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile.

21. The bail application can be made at any time to a bail authority, a right available to the accused person and s. 6 of the Bail Act provides and reads:

6. APPLICATION FOR BAIL MAY BE MADE AT ANY TIME.
(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.

(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.

(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section 9.

22. The section 9 of the Bail Act provides the requisite conditions upon which the Bail Application can be refused. The section 9 of the Bail Act reads:

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 Act1975against 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.

(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.

(3) For the purposes of Subsection (1) (i), "narcotic drug" has the meaning given to it in the Customs Act 1951.

23. The National Court has inherent powers to use s. 155 (4) of the Constitution in exceptional cases, but together with the spirit of pre-requisite conditions provided under relevant provisions of the Bail Act to deal with the Bail Application before it. The s.155 (4) of the Constitution reads:

155. THE NATIONAL JUDICIAL SYSTEM
(1) The National Judicial System consists of–

(a) the Supreme Court; and
(b) the National Court; and
(c) such other courts as are established under Section 172 (establishment of other courts).

(2) The Supreme Court–

(a) is the final court of appeal; and
(b) has an inherent power to review all judicial acts of the National Court; and
(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.

(3) The National Court–

(a) has an inherent power to review any exercise of judicial authority; and
(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,

except where–

(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or
(d) the Supreme Court assumes jurisdiction under Subsection (4); or
(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.(emphasis is mine)

24. Whilst Bail is a right available to those who are arrested, upon conviction or otherwise the interest of justice otherwise requires under section 42(6) of the Constitution. It reads:

42. LIBERTY OF THE PERSON.
(6) A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

APPLICATION OF LAW TO THE FACTS

25. The law on bail is a trite law which has been the subject of countless judgment of both National and Supreme Courts in this jurisdiction in many cases. It gives the Bail Authority a sea of cases to choose from to dovetail into the case before it. This case is no exception. I need not to repeat minute details of it, except to reiterate the basic fundamentals of the 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 any time except for wilful murder and treason but a bail authority has the discretion to refuse bail" if in the interest of justice otherwise requires". See Re Herman Kagel Diawa v the State [1960] PNGLR 148.

(ii) The section 9 of the Bail Act prescribes circumstances in which bail may be refused. The section 9 pre-requisite prescription conditions 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 to refuse bail – See Re Fred Keating v The State [1983] PNGLR 133.

(iv) The burden is produce appropriate evidence to form a foundation for a grant to 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 procedures are excluded.

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

26. The first objection raised by State Prosecutor is under section 9(1) (c)(i) of the Bail Act that violent was used to commit the offence by the applicant/defendant unlawfully break and enter and steal a Laptop and committed other three indictable offences amongst which attempted murder as well. The second objection is a legal requirement that the applicant/defendant has failed to show any reason why he should not be held in custody. It is incumbent on him to provide some evidence in material particular that his stay in custody is unjustified.

27. It is also considered, in view of the manner in which the series numbers of indictable offences were committed and the nature of the crime is a sufficient factor to refuse bail, and I do not seem to have any problem with this legal proposition, and as such is the case in this case. The relevant case authority on this point, of which I adopt is in the case of Beko Job Paul v The State [1986] PNGLR 97, where His Honour Wilson J, made it clear and held 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."

28. In reference to the issue on "interest of justice" is not to be considered only in favour of the applicant/defendants' but also the interests of the society to see offenders deal with promptly and effectively according to law is well encapsulated in the phrase "interests of justice". The notion of interest of justice is included in the provision of section 42(6) of the Constitution and section 3 of the Bail Act. In The State v Heisi Tau (1999) N1937, his honour Sakora J, stated that:

"Concerned with protection of the community, the law abiding people, from those who offend (or alleged to have offender) against them until such time as guilt or innocence are fully and finally determined according to law"

29. His Honour in the above case 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 to 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 equality, 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 fortified their right to live and move around freely".

30. The phrase "interest of justice" involves all those considerations prescribed under section 9 of the Bail Act, considerations such as the prevalence and the nature of and the seriousness of the offence. Bail should not be refused unless the Bail Authority is satisfied on reasonable grounds as to the existence of one or more of those factors or considerations have featured quite significantly against the applicant/defendant under s. 9 of the Bail Act. I am satisfied that this is so, in this case.

31. The Court having considered the totality of the material before it, is of the view, that having taking into account the serious nature of the four indictable offences committed at the same time in one event, and the serious threatening behavioural issues raised pose directly to the Kambubu Adventist School Community, this indeed provide an environment not conducive for the release of the applicant/defendant on bail is undesirable at this stage. The Court therefore refuses bail application by the applicant/defendant forthwith.

The Court Orders accordingly
__________________________________________________________
Office of the State Prosecutor: Lawyer for the State 
Kusip & Associates Lawyers: Lawyer for the Defendant