N6758
       PAPUA NEW GUINEA
        [IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 58 OF 2017

HERMAN WARU
Applicant

V

THE STATE
Respondent

Kimbe: Miviri AJ
2017: 10th, 15th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail Act - Bail Application –ss4 & 6 Bail Act ––s42 Constitution---s9 Guarantors Village Court Magistrate & Market Supervisor –offence of armed robbery- applicant-bail refused.

Cases:

Kasi v The State [1999] PNGLR 566 (23 December 1999)
Lester v The State [2001] PGNC 148; N2044 (22 January 2001)
Re-Fred Keating [1988] PNGLR 133,

Counsel:

R. Luman, for the State
B. Popeu, for the Defendant

RULING ON BAIL APPLICATION

15th May, 2017 

1.    MIVIRI AJ: This is the ruling of the court on an application for bail made pursuant to Section 4 and 6 of the Bail Act and Section 42 (6) of the Constitution by Herman Waru of Imelo, Kandrian District, West New Britain Province who is in custody on an information dated the 21st September 2016 on a charge of armed robbery pursuant to Section 386 (1) (2) (a) (b) (c) of the Criminal Code. He is charged with 6 others whilst in possession of homemade guns and bush knives all dangerous weapons. The facts at the back of the information attached as annexure “B” of your affidavit dated the 8th February 2017 reads: On the 30th August 2016 between 8.00-9.00am, you with others also named in the Charge and also currently awaiting trial in remand, stopped the three mechanics of the logging company, held them up and demanded money and stole from them 2 pairs of boots valued at K 98.00 each, pair of dark sunglasses, waist bag containing cigarettes valued at K20, a vovi touch screen mobile phone valued at K1500, an alcatel touch screen phone valued at K135, and K11 in cash, all the property of Rodney Giru and two others.

Law

2.   Section 4 Bail Act is specific: “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.”

3.   The effect of this section is that you shall not be granted bail except by the National Court or the Supreme Court. Because you are charged with aggravated Armed Robbery which carries the death penalty and also because of the use of firearms. Re-Fred Keating [1988] PNGLR 133, states:

 “Before the discretion to refuse bail arises the court has to be satisfied that there are substantial grounds for believing that one or more of the matter described in Section 9 (1)(a) to (g) are present. It is the existence of substantial grounds for the belief not the belief itself which is the crucial factor: see Rv. Slough Justices; Ex Parte Duncan and Another [1982] 75 Cr. App. R 384”

4.    So for the purposes of bail, these are the considerations which must be satisfied under the Bail Act s9. 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.

(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.

Am I sitting as bail authority under section 4 and 9 of the Bail Act satisfied on reasonable grounds that one or more of the grounds of the section 9 has been made out for me to refuse you bail here?

Facts

5.   The facts that are here are that you are charged with 6 others whilst in possession of homemade guns and bush knives which are all dangerous weapons. And that at the back of the information attached as annexure “B” of your affidavit dated the 8th February 2017 reads, on the 30th August 2016 between 8.00-9.00am you were with others also named charged and also currently awaiting trial in remand stopped the three mechanics of the logging company, held them up and demanded money and stole from them 2 pairs of boots valued at K98.00 each, pair of dark sunglasses waist bag containing cigarettes valued at K 20, a vovi touch screen mobile phone valued at K1, 500, an alcatel touch screen phone valued at K135, and K11 in cash, all the property of Rodney Giru and two others.

6.    You seek to be on bail in the sum of between K500 to K1, 000 cash and the nominated guarantors in your case are one, Francis Yani who has filed an affidavit dated the 8th February 2017 wherein he deposes that he is a village court magistrate at section 21 Bush Camp, Kimbe West New Britain Province.  He knows you since your child hood and you live in the same area Bush Camp Section 21. That prior to the allegation he knew you as a person of good character and no record of wrong doing. He understands his role should he be approved guarantor and pledges as surety the sum of K500. And to swear that he will ensure you observe the conditions of bail should you be granted bail. That you will reside at Bush Camp Section 21 with your family.

7.    Your second guarantor is Lukas Lek who has sworn an affidavit dated the 8th February 2017 wherein he swears, he is a market supervisor with the Kimbe Town Market. And he knows you as his biological son and that you have lived together at section 21 Bush Camp. That you are of good character with no record of prior wrong doing in the community. He is your biological father who is pledging K500 as surety towards your bail and that you will be resident at Section 21 Bush Camp, Kimbe West New Britain.

8.   There must be independent persons not related to you as guarantors in your case where the penalty of death is inscribed and where the Bail Act section 4 specifically deals with. You stand to lose a lot in the matter and that is in and underlying your pledge to the court. Asking for bail using guarantors is not a mere formality but a matter of grave concern and seriousness in view of the charges criminally that are laid against the applicant against the backdrop of the community and society to see those who are accused of serious criminal charges to be properly secured in custody and dealt with according to law. Kasi v The State [1999] PNGLR 566 (23 December 1999) Lester v The State (supra).

9.    There is no conflict of interest situation between the duties of being a parent and  also a guarantor who must at all times not be biased or emotionally drawn as is the case of a parent and child. Put another way as a parent a biological parent what was there guaranteed to keep the child at bay within your discretion so that the child did not end in this allegation the consequences which is being in custody. What guarantee is there now over and above that which was not there in the first place. 

10.   A similar analogy can be drawn from the words of his honour Justice Kirriwom in Re Bail Application by Hombi [2010] PGNC 84 ; N080 (20 July 2010). His honour was talking about internal police differences in the application that had come out into the court. Just as police should maintain stability amongst themselves so that they stand united against crime and criminals and that administrative matters must be settled in their domain and not in court. 

11.    The point is well made yet in another setting by his honour Justice Kirriwom in Bernard Juale v The State [1999]N1887 MP No. 215 of 1997:

“ I will not accept-assertion that the applicant will be safer outside in the protection of his family and relatives than in custody. If such protection outside is to be offered by the Police, that may very well be in order. But I cannot accept that a self-appointed band of tribesmen or relatives will do much better job of protecting him than CIS personal empowered and charged by law to provide this service to those persons committed to their custody. Consequently bail is refused”

12.    CR (AP) No. 50 OF 2017 Roger Kuses August (Applicant) v The State (25th April 17) was a similar case as is here where it was the mother who was seeking to be the guarantor of the son and which is relevant here:

 “Your mother is naturally there and has been all along why she would become a guarantor when she has seen you up from your birth to now. She would not be an independent person and naturally would be inclined to you her son. You were with her even before this allegation so what would she be guaranteeing for you. If the allegation arose whilst you were with her all along where does that leave her as a guarantor? Where would she draw from to guarantee you whilst you are on bail? “

13.    Schedule 1.5(2) of the Constitution says that “All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning”.  Section 42 (6) of the Constitution must be given fair and liberal meaning.

14.    The fair and liberal meaning here is, your father is not a person of influence and repute or standing in the community. Adherence to bail especially in a robbery case where death is now the penalty is a very serious matter no light matter where personal friends or wantoks let alone relatives are to be considered as guarantors in a bail application. Just as one is guaranteed appearance in corrective Institution situation the same should be so in and on bail. There must be real guarantee to appear from bail and to be dealt with according to law in the dispensation and administration of Justice. It is therefore of paramount importance that there is guarantors who can ensure and guarantee the appearance of the defendant from bail. Guarantors must be in a position to ensure without excuse to bring forth the defendant to answer what is due to him in law.

15.   In State v Philip Vaki, Geoffrey Vaki Deputy Police Commissioner was a guarantor to his brother Philip Vaki who was charged with wilful murder, attempted murder, and robbery of half a million Kina at Lae Nadzab Airport. This  is a clear example that even where bail was granted to Philip Vaki on the guarantee of Geoffrey Vaki his big brother, Philip did not appear on trial and warrant was issued by the court to Geoffrey Vaki who executed the warrant to bring Philip Vaki to trial.

Issue

16.    Am I an authority on bail satisfied on reasonable grounds that one or more of the grounds under section 9 (1) has been made out for you to be refused bail? Lester v The State [2001] PGNC 148; N2044 (22 January 2001) see also Kasi v The State (supra)

Guarantor’s independent person of standing repute influence

17.     I answer in the affirmative for the reason that section 9 (1) (a) has not been satisfied on reasonable grounds that you will appear at trial if bail is granted. You have only produced one independent person of standing here in support of your application for bail who is the village court magistrate Francis Yani. The other is not an independent person, he is your father.

18.    The court will not accept nomination of your biological father Lukas Lek as guarantor.  He is not a person of influence, repute, or standing in the community. Adherence to bail especially in a robbery case where the penalty prescribed is the death penalty is a very serious matter and no light matter where personal friends, family, or wantoks, let alone immediate relatives are to be considered as guarantors in a bail application. It is not safe and satisfactory to endorse your biological father as your guarantor here.

19.    The court will not consider the other grounds under Section 9 (1) (b (c) (d) (e) (f) (g) as it is not material in view of the rejection of the biological father as the guarantor. They are all dependent on having a guarantor who will ensure they are observed and adhered to. It is not necessary to consider them here as the opinion here settles the application. Because the law is if one or more of the grounds under section 9 is satisfied on reasonable grounds can bail be granted. Here guaranteed appearance until the criminal matter is finally disposed is fundamental and will not be avoided lightly.

20.   The court as a bail authority within the Bail Act is not satisfied that there is guarantee of your reappearance on bail as the court will not accept your nomination of your own biological father as your second guarantor whilst on bail. Consequently you are left with one guarantor Francis Yani village court magistrate at section 21 Bush Camp, Kimbe West New Britain Province and that is not substantial enough to sway the discretion of the court in your favour to grant your application. You will have to get a second guarantor who is an independent person of standing and repute in the community to ensure your continued appearance in the matter before the court until dealt with. The charge of aggravated armed robbery is a serious allegation that also holds as the ultimatum the death penalty and where there is use of firearms whether real or imitation it is reasonable to have.

21.   Guaranteed appearance before bail is granted. That is not the case here with you where you only have one guarantor of standing and repute the village court magistrate.

22.   For the foregoing reasons I will not grant bail to you until you have two guarantors settled as I have pointed out here.

(a)	Application refused 
(b)	Defendant remanded

Orders Accordingly,
_______________________________________________________
Public Prosecutor:   Lawyer for the State		 
Public Solicitor:      Lawyer for the Defendant