Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Tape v State [2020] PGNC 296; N8503 (17 July 2020)

N8503

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP)NO. 173 OF 2020

SENSTA TAPE

V

THE STATE

Aitape: Gora J
2020:16^th, 17^th July

CRIMINAL LAW – Application for bail- Section 42(6) of the Constitution – Sections 6 & 9 of the bail Act – Application of Section 9 considerations must be supported by some form of evidence – Absence of some form of evidence may amount to speculation only – Bail allowed with conditions.

Cases Cited

Nil

Counsel

Ms. T Aihi, for the State
Mr. K Masket, for the Defendant

DECISION ON APPLICATION FOR BAIL

17^th July, 2020

1. GORA J: INTRODUCTION: This is an application for Bail by the accused. Application is made pursuant to Section 42 (6) of the Constitution and Section 6 of the Bail Act.
   
2. Accused has been charged with one count of Conspiracy to commit a Crime pursuant to Section 515 of the Criminal Code. He is currently in Correctional Services remand in Vanimo awaiting determination of his matter by the court.
   

Brief Facts

3. Brief facts are that on the 07^th of July 2016, accused is alleged to have conspired with two others to burn down a cocoa fermenting house at Yakamul No.2 village, Aitape, West Sepik Province property belonging to one Simon Kahalu. It is alleged the accused offered K3000 to Mathew Charlie and Rolland Kolbatang to execute the plan.
   
4. On the 10^th July 2016 between the hours of 5.00 am and 5.30 am both Mathew Charlie and Rolland Kolbatang poured petrol on to the cocoa fermenting building and set fire to it which was completely burnt down.
   
5. Accused was subsequently charged with one count of Conspiracy to Commit a crime under Section 515 of the Criminal Code.
   
6. He has been in detention/custody since the date of his arrest on the 12^th of June 2018.
   

Issue

7. Whether the accused be allowed bail.

The Law

8. Section 42 (6) of the Constitution provides the basis for bail applications. The provisions read:
   

“A person arrested or detained for an offence (other than treason or willful murder as defined by an Act of Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interest of justice otherwise requires.”

9. Section 6 (1) and (3) of the Bail Act gives effect to Section 42 (6) of the Constitution. The provisions read:
   

“(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, and subsection (3) states that Subject to Section 4, the court shall grant or refuse bail in accordance with Section 9.”

10. Section 9 of the Bail Act states that where a bail authority is considering the question of granting or refusing bail, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the considerations provided therein.
    

Submissions

11. Applicant submits that he is entitled to exercise his right to bail under Section 42 (6) of the Constitution pending trial of his matter. He submits that he is a Pastor of his church for 18 years and wish to continue in that capacity whilst on bail. He says due to his detention since 2018, members of his church have left and are no longer attending church services.
    
12. He also submits he has two sisters who are attending Aitape Secondary school and he has been taking care of them since both their parents have died.
    
13. He further, submits that the condition in the remand facility at Vanimo jail has deteriorated and is no longer safe. It is over-crowded, and remands and prisoners are vulnerable to diseases.
    
14. State concedes that the accused has the right to bail under Section 42 (6) of the Constitution. However, the right to bail is subject to the considerations under Section 9 of the Bail Act.
    
15. According to the Arresting Officer there is likelihood of the accused interfering with State witnesses, which is one of the considerations under Section 9 of the Bail Act. Therefore, bail should be refused.
    
16. State further submits that the three grounds for bail given by the accused
    
    • (i) his status in the church and the impact on church members due to his prolonged absence,
    • (ii) the welfare of his two sisters in high school and
    • (iii) conditions in remand facility, are matters arising as consequential to his arrest and detention for the offence he allegedly committed.
      

They are not exceptional grounds.

Application of the Law

17. Applicant is entitled to bail under Section 42 (6) of the Constitution. However, bail is discretionary on the court to either grant or refuse bail.
    
18. In exercising its discretion court must satisfy itself on reasonable grounds as to one or more of the considerations in Section 9 of the Bail Act before deciding on whether to grant or refuse bail.
    
19. Furthermore, numerous case law authorities also suggest that there must be exceptional circumstances to justify granting of bail. The onus is on the applicant to show that there are exceptional circumstances to warrant granting of bail.
    
20. Accused relies on three grounds for bail. First his role as Pastor of his church- he says that his prolonged absence from his church has affected his church congregation who no longer attend church. Second, his two young sisters are attending high school and he wants to be on bail to care for them as their parents are dead. Third, the conditions at the CS remand facility are deteriorating, over-crowded and the prisoners are vulnerable to diseases.
    
21. I agree with counsel for the State that these three grounds are matters which arise as consequence of the applicant being arrested and charged with an offence. These are not exceptional grounds to warrant granting of bail. Courts continue to stress that matters pertaining to family welfare, business interests, children’s education, employment and church activities for that matter are not exceptional grounds for bail but are matters consequential to the accused being charged with an offence and detained.
    
22. The condition in the remand facility is also not an exceptional ground for bail. My view has always been that this as an administrative matter for remand facility administrators to attend to. Such conditions should not be used as an excuse for bail unless relevant authorities such as health workers recommend otherwise.
    
23. I therefore refuse to accept the grounds for bail submitted by the accused.
    
24. On the issue of interference with State witnesses, it is one of those considerations under Section 9 of the Bail Act. State has submitted that there is likelihood that the accused will interfere with the complainant who is his relative and a State witness.
    
25. To support this claim, the State relies on the affidavit of Senior Sergeant Rodney Malken. However, there is no evidence in the affidavit showing whether accused has attempted to interfere with State witnesses. Unless some form of evidence is shown that the accused is intending to interfere or has interfered to some degree with State witness, the content of the affidavit material of Senior Sergeant Rodney Malken may be speculation only.
    
26. I am therefore not satisfied on reasonable grounds that one or more of Section 9 considerations exist.
    
27. I also note that the accused has been in custody since 2018. It may take a very long time for his case to be heard in Aitape because the court circuits Aitape rarely, in-fact once or twice a year only. Such lengthy delay and his prolonged detention may be contrary to the spirit of Section 42 (6) of the Constitution. I will therefore exercise my discretion to allow him bail.
    
28. Application for bail is granted with conditions that:
    
    • (a) Applicant pays cash bail of K1000 before being released from custody.
      

(b) Applicants two named guarantors are approved and are to pay sureties of K300 each before applicant is released from custody.

(c) Applicant is not to interfere with State witnesses including the complainantat any time and in any manner pending determination of his matter by the court.

(d) Applicant is not to leave West Sepik Province without leave of this court.

(e) Applicant is not to consume any form of alcohol or drug pending determination of his matter by the court.

(f) Applicant is to attend court faithfullyon dates his matter is made returnable.

29. Matter is adjourned to the next sitting of the court in Vanimo.
    

Ordered accordingly

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused