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State v Giau [2018] PGNC 212; N7315 (22 June 2018)

N7315

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR (AP) NO 140 OF 2018

THE STATE

V

BASIL GIAU

Kimbe: Miviri AJ
2018 : 21^st June

CRIMINAL LAW – Application for Bail –Armed Robbery- S386 CCA – s9 (1) (c)(i)(ii)(iii) Bail Act– medical condition – no objection to bail – bail granted.

Facts

Applicant charged with armed robbery injured by Police medical condition disabling.

Held

1. Medical condition
2. Bail not objected to
3. Bail granted.
   

Cases sited:

Fred Keating [1988] PNGLR 133

Counsel:

L. Jack, for the State
D. Kari, for Defendant

RULING ON BAIL

22^nd June, 2018

1. MIVIRI AJ: This is the ruling on an application for bail made by the applicant who is in custody charged for Armed Robbery.
   

Facts

2. The Applicant Basil Giau is charged with Armed Robbery by information dated the 17^th February 2017 that he in the company of others armed with dangerous weapons a stapler homemade gun, a pump action homemade gun, a homemade pistol a kitchen knife a mini bush knife and ammunition used actual violence against Rick Jason and others and stole from them goods and money to the total value of K25, 968.51 all the property belonging to Rick Jason Magat. As they tried to make their getaway police came and sealed off the getaway and arrested all there.
   
3. He makes an Application for Bail pursuant to Section 6 of the Bail Act and Section 42 (6) of the Constitution. In so doing the provisions of Section 9 of the Bail Act are considered as to whether or not there are reasonable grounds upon which the applicant will appear at his trial whilst on bail. The offence is a threat of violence to another, use of offensive and dangerous weapons, and serious assault but that is outweighed by the material that the applicant has filed. It is required, “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 R v Slough Justices; Exparte Duncun and another [1982]75 Cr. App. R 384; In re Fred Keating [1988] PNGLR 133
   
4. Applicant has the right to be granted bail by virtue of Section 6 of the Bail Act reinforced by the Constitution Section 42 (6) but in the exercise of that discretion the court is directed to Section 9 of the Bail Act; Re Thomas Markus [1999] PGNC 82; N1931 (15 September 1999) discretion meaning that there must be facts provided upon which the discretion in law will be exercised. Here these are the following that the applicant has filed.
   
5. The Applicant’s affidavit attaching a medical report annexure “B” dated the 20^th February 2017 under hand of Doctor Lawrence Warangi Senior Specialist Surgeon confirming that the applicant was seen at the Accident and Emergency section of the Kimbe General Hospital on the 5^th February 2018. He sustained gunshot wounds to his right knee allegedly by Police and was seen at the accident and emergency. He was resuscitated with Intravenous fluids examination revealed wound involving the right knee from where he was bleeding from. His X-ray showed fracture of the lateral femoral condyle as well as undisplaced Supracondylar femoral fracture. The doctor concluded that Basil has sustained injuries to his right knee that has involved his knee joint. This is most likely to incapable him in the future.
   
6. The Application is supported by the affidavit of Ben Fidelis sworn 23^rd May 2018 and filed on the same date. He is the council of Gigo 1 and knows the applicant very well as of good character. And is willing to be his guarantor pledging the sum of K500. That the applicant will reside with his family at Gigo 1 settlement.
   
7. The Application is further supported by the affidavit of Joe Wama dated the 23^rd May 2018 filed the same date. He is a community leader at Gigo 1 and knows the applicant very well as they all live at the same area. That the applicant is of good character. He will pledge the sum of K500 as surety should bail be granted and also deposes that the applicant will reside at Gigo 1 settlement with his family.
   
8. The State does not object to the application.
   
9. I have considered the application on its own merit and am satisfied on reasonable grounds that on the material in support that the application should be granted in the terms as applied. In so doing I am not bound by technical rules of evidence but on the information as it is available. Here these are the affidavit of the applicant and his two proposed guarantors including the annexure to his affidavit. Importantly the medical report under hand of Doctor Lawrence Warangi particulars set out above.
   
10. In my view this is sufficient to grant the application in the following terms and conditions;
    
    • (i) Bail is granted in the sum of K1000 to be paid and receipt to be produced for the release of the applicant.
      
    • (ii) Ben Fidelis and Joe Wama are the approved guarantors who shall pledge to owe the State the sum of K600 as surety for the bail.
      
    • (iii) The applicant shall report to the Kimbe National Court registry every government Friday between the hours of 8.00am and 4.06pm.
      
    • (iv) The applicant shall reside during the course of his bail at Gigo 1 settlement and shall not leave that residency or Kimbe without the leave of the National Court.
      
    • (v) The applicant shall attend the call over of the National Court every first Monday of the month until his case is dealt with.
    • (vi) The applicant shall be of good behaviour during the course of his bail at all times until his case is dealt with in law.
      
    • (vii) The applicant shall not interfere with any witnesses in the case.
      

Orders accordingly.

________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitors : Lawyer for the Defendant