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Maira v State [2021] PGNC 487; N9258 (9 November 2021)

N9258

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 367 OF 2021

PETER MAIRA

V

THE STATE

Waigani: Wawun-Kuvi, AJ
2021: 8^th, 9^th November

CRIMINAL LAW – Bail – Applicant charged with Armed Robbery, contrary to s. 386(1) (2) (a) (b) (c), Unlawful use of Motor Vehicle against s383 and Kidnapping against section 353 of of the Criminal Code – Exceptional circumstances not established – Application refused.

Cases Cited:
Fred Keating v The State [1983] PNGLR 133
Yausase v The State, (2011) SC 1112

Legislation:
Bail Act 1977
Constitution
Criminal Code

Counsel:

Mr E Ellliso, for the Applicant
Ms T Kamatan, for the Respondent

DECISION ON BAIL APPLICATION

9^th November, 2021

1. WAWUN-KUVI, AJ: This is an application pursuant to sections 4 and 6 of the Bail Act 1977 and 42 (6) and 155 of the Constitution.
   
2. The applicant is charged with one count of Armed Robbery contrary to section 386(1)(2) (a) (b) (c), three counts of kidnapping contrary to section 353 and one count of unlawful use of motor vehicle contrary to section 383 all offences against the Criminal Code.
   
3. The State alleges that on 31 May 2021 between 10:30 pm and 11.00 pm the complainant was with two other persons at Tuna Bay at Taurama. The complainant was driving a Toyota Hilux 6^th Element Double Cab Utility, white in colour bearing registration number BFR 172. While the complainant was driving, two Toyota Landcruiser’s, one bearing registration number DAC 441 and the other unknown, blocked the complainant off. Men armed with police issued rifles came out of the vehicle. The complainant recognized a Lawrence Sausau a policeman attached with Central Police command and a police reservist who was later identified as the applicant.
   
4. One of the men pointed the gun at the complainant’s head and told him not to do anything. They then ordered the complainant and his two passengers into their vehicle. They further ordered them to lie face down. They were taken to 15 Mile Police Station where the complainant’s money in the amount of K52.00 was taken. They were again put into the vehicle. They were beaten until the vehicle reached 9 Mile. They were thrown out of the vehicle at 9 Mile and the men drove off. The complainant and two companions were left stranded.
   
5. On 1 May 2021, a formal complaint was lodged. On 3 June 2021 at around 9 pm, the applicant was at the Boroko Police Station. He was invited to get on the police vehicle and was taken to Wanigela where he was identified by the complainants.
   
6. The applicant was subsequently arrested and has been in custody since. He is currently being held at Bomana Correctional Institution.
   
7. The State opposes bail.
   
8. It is well established that in case where a person is charged there is a presumption of bail except for wilful murder and treason. Where the State opposes bail, it should establish that one of the considerations in section 9 of the Bail Act apply. In determining a matter under section 9 of the Bail Act, the Court is not bound by technical rules of evidence and may act on such information available to it: Fred Keating v The State [1983]^[1].
   
9. However, even if one or more of the circumstances in section 9 apply the court may in the exercise of discretion still grant bail. In such cases, the applicant must show that exceptional circumstances make his continued detention unjustified: Fred Keating^[2] and Yausase v The State, (2011)^[3].
   
10. The State has submitted there are considerations under section 9 (1) (c). There was violence, that is, threats of violence and actual violence and firearms were involved.
    
11. I am not satisfied that State has established that the applicant is unlikely to turn up for his trial. State counsels’ submissions was speculation at best. I am also not satisfied that the applicant is likely to commit other indictable offences whilst out on bail. I am further not satisfied that he is likely to interfere with state witnesses as there is very little before me to support this argument.
    
12. As above, having regard to the matters established under s. 9 of the Bail Act, the applicant must establish that exceptional circumstances make his continued detention unjustified.
    
13. The applicant protests his innocence. He says that the police case is fabricated and malicious. The question of whether the applicant is innocent is not a matter for this Court: see Theo Yausase v The State (2011) SC112. The Supreme Court did express the tentative view in Yausase v The State that if it appeared that the applicant had been charged without any proper legal basis that might amount to an exceptional circumstance. That is not the case here in my view given the alleged facts.
    
14. The applicant also submits that his safety in prison is a consideration. The State has provided an affidavit from CS who confirm that they have not received such a report and that the remandee is adequality fed and looked after.
    
15. His main contention is plea of innocence and that the charges are fabricated. These are matters for trial.
    
16. Having regard to the matters stated, it is my view that none of the matters raised, alone or in combination, constitute an exceptional basis on which to grant bail.
17. The application is refused.

Orders

18. The Order of the Court is:
    1. The Application for bail is refused.

________________________________________________________________
Luthers Lawyers: Lawyer for the Applicant/ Applicant
Public Prosecutor: Lawyer for the State

^[1] PNGLR 133.
^[2] (supra)
^[3] SC1112