N9336

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 389 OF 2021

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

BETWEEN:
OWEN NEHEMIAH JUNIOR
Applicant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani:  Ganaii, AJ
2021: 09th, 10th  December
 
CRIMINAL LAW - Bail – Charge of Armed Robbery – Grounds of Family Welfare and Innocence - Alleged offence involves use of Firearms and Threats of Violence – Section 9 Elements of the Bail Act are present – Grounds relied on are inadequate and insufficient – Bail refused
 
Cases Cited
            
Felix Kange v The State (2016) SC1530
Re Diawo v State [1980] PNGLR 148
Re Keating v the State [1983] PNGLR 133; SC257
Spencer Gerry v the State (2018) N7109
Vele v The State (2003) N2701
Yasause v The State (2014) SC1381 

Legislations Cited

Constitution of PNG, Section 42
Bail Act, Sections 4, 6, 9

Counsel

Ms. C. Bomai, for the Applicant
Ms.  Ningakun, for the State

RULING ON AN APPLICATION FOR BAIL

10th December, 2021

1.       GANAII AJ:    The applicant, Owen Nehemiah Jnr, has been charged with one count of armed robbery pursuant to section 386 (1) (2) (a) (b) and (c) of the Criminal Code.  The maximum penalty for the offence of Armed Robbery is death.

2. 	The brief allegations are that on the 27th of June 2021, at Jannat Holdings Ltd, Taurama, in the National Capital District, the applicant, was in the company of nine others. They were armed with dangerous and offensive weapons namely factory-made pistols. They held up the staff of Jannat Trading Ltd and robbed them of K30 000 in total value of goods and cash. At that time, the applicant was an armed security officer who was posted to guard Jannat Holdings at Taurama for that day. It is alleged that he escorted the robbers in and stood watch to allow the robbery to take place. 
 
3.       The applicant has formally applied for bail relying on a Notice of Motion and affidavits in support.
 
4.       The applicant has denied the charge.  He deposes that he is married with two young children and he has been the sole bread winner for his family prior to his incarceration. He worked as an armed security guard and was posted to Jannat Holdings Ltd at the time of the alleged incident. 

5.       The main basis of the application is that the applicant says that his family will suffer as a result of his continued detention and that he is innocent. 

6.       State objected to bail on the basis that the applicant is likely to abscond and go into hiding and that his grounds for seeking bail are natural consequences of being arrested and charged for a serious offence. State relied on the case laws of Theo Yasause v The State (2014) SC1381 followed by Felix Kange v The State (2016) SC 1530.
 
7. 	The Police Informant Detective Constable Raphael Korugl filed an affidavit deposing that the applicant does not have a permanent residential address. His home village of Kairuku is easily accessible by road and he is likely to flee the jurisdiction of NCD. He is also likely to interfere with State witnesses whom he knows by virtue of his employment. Further, the stolen items and cash have not been recovered and there is a real likelihood that if released the applicant will collude with his alleged accomplices to conceal them. 

8.       State objects to bail and submits that the alleged act constituting the offence in respect to which the applicant is in custody for includes being armed with firearms, threats of violence, and the non-recovery of the stolen cash and other store items. Therefore, the case comes within section 9 (1) (c) and (g) of the Bail Act, so that if a bail authority is satisfied on reasonable grounds that this is so, it may refuse bail. 
 
9.       Other matters for consideration are that the applicant undertakes to comply with all his bail conditions if the court is minded to grant him bail. He proposes a bail amount of K1,000. His two guarantors are Pastor Roy Stanley, from the Waigani United Church and Peace Officer Vincent Komara from the Waigani Village Court. Both have pledged their support for the applicant’s bail and have undertaken to ensure the applicant complies with all his bail conditions.

10.     The right to bail is automatic and available at all times. It is guaranteed by section 42 (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) N 7109, 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”.
 
11.     The Supreme Court also held that the existence of any of the factors set out in section 9 does not automatically operate as a bar to the grant of bail.  The Court has the discretion to decide whether to grant bail, having regard to the particular circumstance of each case and in the interests of justice.
 
12.  In this case, the only two grounds relied on are family welfare and innocence. The court is guided by the pronouncement in the Supreme Court case of Yasause (supra) and Kange (supra) that family welfare and innocence are not proper grounds for seeking bail.

13. 	In response to the arguments on absconding and interference, I am satisfied according to the guarantor’s affidavits that the applicant has always been a long-time resident of Waigani and that his address is known in this regard. I accept that he has been residing and working in Port Moresby and on that basis, he may be easily located. Although his village is accessible by road, the State must show that he is likely to abscond to his village. 

14. 	I consider that the applicant was a security guard based at the crime scene when the alleged offence took place. The mere fact that the applicant is known to the complainants and potential witnesses by virtue of his employment is not on its own sufficient to say that he will interfere with them. The State must show a real likelihood of interference.  Principle in Re Keating v The State (supra); Re Diawo [1980] PNGLR 148; Vele v The State (2003) N2701 is applied. 

15. 	Ms Bomai, of learned counsel for the applicant submitted strongly that the court should not take into account that the allegations show the presence of section 9 (1) (c) (iii) factor, that is the use of firearms. She submitted that the applicant denies any involvement and say he was armed whilst on duty when the alleged armed robbery occurred. As such, the firearm was lawfully on him. I say that these are matters in his defence and can be raised at trial proper. For now, for the purposes of this application and in understanding the circumstances of the alleged offence, the Statement of Facts show that more than one firearm was involved in the commission of this alleged offence.  

16.	I am satisfied on the evidence that the acts constituting the offence in respect to which the applicant is in custody, come within section 9 (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 and not founded on the law.  I am also satisfied that it is not in the interests of justice that bail should be granted given that cash and goods of substantial amount has not yet been recovered and there may be a likelihood of concealing or dealing with them. 

17.     For these reasons, the application for bail by Owen Nehemiah Junior is refused.

Order 
	
18.	Bail is refused
________________________________________________________________
Public Solicitor: 	Lawyers for the Applicant   
Public Prosecutor:  Lawyers for the Respondent