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

Kaupa v Independent State of Papua New Guinea [2020] PGNC 41; N8202 (15 January 2020)

N8202

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 449 OF 2019

In the matter of an Application for Bail Pursuant to Section 4 and 6 of the Bail Act Chapter No. 340 & Section 42 (6) of the Constitution.

BETWEEN:
GLEN KAUPA
Accused / Applicant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Thompson J
2020: 15^th January

BAIL – application for bail by accused pending trial - applicant arrested and detained for the offence of armed robbery -– bail sought on medical grounds – state opposes bail on grounds that the offences to which the accused is charged with involves use of firearms – evidence concerning applicants medical condition is insufficient – bail refused

Cases Cited:

Re-bail application, Fred Keating v the State (1983) SC257
Spencer Gerry v the State (2018) N7109

Counsel:

Mr. B Koke, for the Applicant
Ms H Roalakone, for the State

15^th January, 2020

1. THOMPSON J: The Applicant, Glen Kaupa, has been charged with armed robbery pursuant to s386 (1) (2) (a) (b) and (c) of the Criminal Code Act chapter 262. The maximum penalty for Armed Robbery is death.

2. The Applicant has applied for bail.

3. The Applicant has denied the charge. He also deposes that he is from Simbu Province, but resides in Boroko in the National Capital District. He does not depose, but the Charge Sheet says, that he is married with two children. He says that prior to his arrest he was employed by Big Builders Supply Ltd for ten years. He says that he has a serious medical condition, and that he needs to be out on bail to access proper specialist treatment for his condition.

4. The Applicant’s evidence does not disclose that he lives with his parents or other family, and he has not provided evidence that he was still employed by Big Builders at the time of the alleged offence. The Applicant gave no evidence of how he might support his family if bail was granted.

5. The State objects to bail as it contends that:

(a) The alleged act constituting the offence in respect to which the Applicant is in custody includes being armed with two firearms, the use of actual violence, and threats of violence, and therefore comes within s9 (1) (c) of the Bail Act, so that if a bail authority is satisfied on reasonable grounds that this is so, it may refuse bail.

(b) The evidence concerning the Applicant’s medical condition is not sufficient and does not support his claim of having a serious medical condition, and he has not been denied access to medical treatment.

6. Other relevant matters are that the amounts offered to be pledged as security by the proposed guarantors are only K500.00 each, which may not be sufficient given the seriousness of the offence.

7. The two proposed guarantors have given evidence that they are willing to pay K500.00 each. They both say that the Applicant would reside with his elder brother within the premises of his elder brother’s employer Big Builders Ltd, if he is granted bail. They do not say why the Applicant would not reside with his wife and child or children.

8. The Applicant was given leave to rely on an affidavit sworn by the arresting officer on 25 November 2019, who supported the application for bail. The officer says that CCTV camera footage identifies the applicant, who was unarmed at the time of getting into the vehicle used in the offence. The officer deposes that he visited the applicant and has reasonable grounds to believe that the applicant showed remorse for his criminal conduct. This belief was contradicted by the applicant’s own affidavit sworn on 23 December 2019 in which he denies the allegations and charge against him.

9. The right to bail is guaranteed by s42 (6) of the Constitution. Section 9 of the Bail Act sets out the criteria for refusing bail. In the case of re-Bail Application, Fred Keating v the State (1983) SC257, followed in Spencer Gerry v the State (2018) N7109, the Supreme Court said:

“When considering the grant or refusal of bail ... the courts and other bail authorities are to be guided generally by S9. But whilst the Bail Act is a complete code in dealing with the grant or refusal of bail, by S3 in matters other than wilful murder or treason, the bail authority may still have to consider the question of the interests of justice. This may involve considerations other than the criteria for refusing bail as established in this section”.

10. The Supreme Court also held that the existence of any of the factors set out in s9 does not automatically operate as a bar to the grant of bail. Instead, the Court has the discretion to decide whether to grant bail, having regard to the particular circumstances of each case and in the interests of justice.

11. In this case, there is evidence that the Applicant is asthmatic, but there is no evidence that his condition is serious or life threatening, or that he requires access to specialist treatment. The medical evidence is that the Applicant’s asthma is sufficiently treated by the use of an inhaler and tablets. There is no evidence that he cannot continue to use his inhaler and take the tablets while he remains in custody, and there is no evidence that he has not received appropriate treatment or has been denied access to his doctor for treatment. The evidence does not show that bail needs to be granted because of the Applicant’s medical condition.

12. I am satisfied on the evidence that the acts constituting the offence in respect to which the Applicant is in custody, come within s9 (1) (c) of the Bail Act, namely, having or possessing a firearm and a threat of violence to another person. I am satisfied on reasonable grounds that the evidence of the grounds on which the Applicant seeks bail is inadequate and insufficient. I am also satisfied that it is not in the interests of justice that bail should be granted.

13. For these reasons, the application for bail by Glen Kaupa is refused.

Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent