N7103

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 11 OF 2018

FRANCIS KEVIN
V

STATE

Kimbe: Miviri AJ
2018: 15th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail Application-Arson S 436 CCA - grounds under section S9 (1) (c) (i)(ii)(iii) Bail act invoked - threats of violence - offensive and dangerous weapon used-S9 (1) ( c) (i)(ii)(iii)  – substance to application-President Central Nakanai LLG -innocent constituents to suffer continued remand-Bail granted with conditions.
Facts
Accused charged with arson in that he set fire to a kitchen which was burnt down.

Held
President of Cenaka Local level Government
Application granted
Bail allowed with conditions

Cases:
Re-Fred Keating [1988] PNGLR 133 
Counsel:

A. Bray, for the State
F. Kua, for the Defendant
		
RULING
15th February, 2018
1.	MIVIRI AJ: This is the ruling on an application for bail made by the applicant remanded in custody who is charged with arson under section 436 of the Criminal Code. 

Information

2.	Information laid dated the 29th January 2018 charges that he between the 30 - 31st December 2017 at Mamota Section 2, Portion 1014, wilfully and unlawfully set fire to the kitchen house of Yanga Sakuan. It is annexure A to his affidavit sworn 6th February 2018 and filed 9th February 2018.

3.	Annexure B to that affidavit of the applicant is the facts on the charge; applicant is the current president of the central Nakanai Local level Government. He came to the subject block at Buluma accompanied by four policemen. They were under influence of alcohol to serve an eviction order.

4.	The policemen fired four shots into the air which made the occupants scared running into the oil palm. There was no one to serve the eviction order upon there. Applicant was frustrated went to his vehicle got a can of petrol poured on the kitchen set it alight on fire. Neighbours came and put out the fire as applicant and the police drove out.

5.	On the 31st December 2017 between 6.00am and 7.00am the applicant with the policemen accompanying came to the complainants block. They appeared drunk using abusive language served the eviction order upon the complainant. The kitchen was partly burnt down after the applicant got a can of petrol and set it on fire.

6.	On the 2nd January 2018 between 3 and 4pm the defendant’s families came to the complainants block poured petrol on the dwelling house and set it on fire.

Bail application

7.	The applicant has invoked the provisions of the Bail Act section 6 and Section 42 (6) of the Constitution for bail pending trial.

Constitution Section 42 (6) Right to Bail

8.	Section 42(6) of the Constitution basically gives the right to bail from arrest or detention to all offences excluding wilful murder or treason. And this is available to the defendants/applicants from arrest, detention right down to acquittal or conviction unless the interest of Justice otherwise requires.

Section 6 Bail Act

9.	Section 6 of the Bail Act enforces this in allowing bail to apply for at any time after arrest and detention with the exception of offences under section 4 which are the exclusive prerogative of the National and the Supreme Court only. In so doing the court shall grant or refuse bail in accordance with Section 9. 

10.	And section 9 is in these terms, “

Considerations Affecting Decision on Bail Matters
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.”

11.	 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 Rv. Slough Justices; Ex Parte Duncan and Another [1982] 75 Cr. App. R 384” In Re-Fred Keating [1988] PNGLR 133.

Issue

12.	Are there substantial grounds here for me to refuse the application for bail?
Application of the law to facts

13.	The applicant is the president of the Central Nakanai Local level Government aged 52 years old married with two wives and fourteen children including two adopted and is the sole provider of all. He would not be able to do that proficiently due to his incarceration. It is a natural consequence of the criminal conduct complained and will not be substantial to sway the exercise in his favour.

14.	He complains of crowded police cells making all in including himself prone to disease. This is a self- serving statement without any support that indeed the cells are crowded and prone to disease. 

15.	There is merit in the assertions that he makes that the budget sessions involve local level Government presidents and he being one is involved for the electorate that he is president. And this is supported by his proposed guarantors Peter Waine of oil palm block 911 section 8A in Mamota Central Nakanai Local Level Government firstly and secondly by Percy Bashia of oil Palm block No. 246 section 1 Bialla.

16.	Both guarantors depose by affidavits sworn dated the 06th February 2018 filed the 09th February 2018 that both are employed as Ward recorders of the Central Nakanai Local Level Government and have known the applicant for many years. He is a man of good character married and committed family man with two wives and kids prior to his arrest. Both state that he is not a habitual criminal. And his continued detention has caused hardship for the central Nakanai Local Level Government. He is a good leader. He is the current President serving there.

17.	Both guarantors have fixed addresses by section and allotment block numbers where they can be located to see and ensure compliance observance of any bail conditions imposed. These details are important for securing attendance in the event of failure to observe conditions imposed. In this case too is the position of the applicant, President of the local Level Government Central Nakanai. As a leader he knows what the requirements are including the standard of leadership envisaged by all.

18.	The charge envisages the maximum penalty of life years imprisonment it is therefore a very serious charge and the facts relating to it set out by the information are serious. If there was an eviction order it did not warrant burning unless there was resistance or threat to life at the time of service of the orders. Court Orders must be enforced peacefully not as alleged as here especially against a leader  as the President of the Central Nakanai Local Level Government. But that places his position in the ambit of another process in law to follow suit against those accusing him. They are at liberty to take that process even when the criminal proceedings are flowing through.

Section 9 (1) (c) (i) (ii) (iii) Bail Act

19.	For now Section 9 (1) (c) (i) (ii) (iii) of the Act are applicable here because it is a threat and use of violence accompanied by gun shots in the possession of the four policemen, whether or not it was necessary is a matter in another forum down the process. Prima Facie it was unnecessary and should have been avoided.

20.	But it is considered in the light of the fact that the allegation arose in the course of the service of an eviction order. But what is pertinent at this juncture is the position of President that he holds and the fact that this role demands discharge of duties that will benefit the vast majority of constituents that he represents in the Central Nakanai Local Level Government who no fault of theirs will suffer the consequences of his actions. They are not on the same footing according to the plea that he makes for his family wives and children. I consider this ground as with substance and will weigh it with section 9 (1) (c)(i)(ii)(iii)  as negativing calling for discretion of the court in favour of the applicant. The court will consider the welfare of the Constituents and make appropriate orders against the applicant to ensure that he accords so as to serve them, but heeds the criminal allegation against him whilst on bail.

Confirmed Residential location

21.	Both guarantors have a confirmed location where they can be easily located including the applicant who is the President of Central Nakanai Local Level Government therefore will pose no problems in locating should conditions of bail imposed be not met.

Guarantors

22.	It is also important to state here that the guarantors are now in their roles more powerful than the President he must submit to their authority as they have pledged to ensure that he is available secured and attendances observes what orders are issued against him in respect of his bail.

23.	I am satisfied that the application comes with substance to sway the discretion in favour of the applicant as motioned. I therefore in the exercise of my discretion considering all grant the application for bail.

24.	Application granted with the following orders made upon the applicant to adhere complied forthwith: 

(1)	Bail is granted to the applicant Francis Kevin in the sum of K1500 to be paid forthwith before release of the applicant receipt to be produced to court.
(2)	Peter Waine of oil Palm Block No. 911, Section 8A, Mamota is approved guarantor pledging to owe the sum of K500 should the applicant Francis Kevin breach the orders.
(3)	Percy Bashia of oil Palm Block No. 246, Section 1, Bialla is approved guarantor pledging to owe K500 to be paid forthwith should the applicant breach the orders.
(4)	Applicant shall report to the Kimbe National Court registry between the hours of 8.00am and 4.00pm every Government Friday until his matter is dealt with in law.
(5)	Applicant shall not interfere with any state witnesses during the course of his bail.
(6)	Applicant shall not consume alcohol or any intoxicating liquor or brew or drug the course of his bail.
(7)	Applicant shall not leave his residence Kisiluvi or Kimbe without the express leave of this court.
(8)	Applicant shall be of good behaviour at all times in the course of his bail.

Orders accordingly.

_______________________________________________________________
Public Prosecutor:  Lawyer for the State	
F.Kua Lawyers: Lawyer for the Defendant