N10320

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 104 OF 2023

BETWEEN:
NAIKA VIRI
- Applicant-

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Respondent-

Waigani: Tamade AJ
2023: 24th & 25th April

CRIMINAL LAW – bail application– offence of facilitating the movement of methamphetamine – Controlled Substance Act – Section 68 (1)(b) – methamphetamine not a narcotic drug as defined – Bail Act – Section 9(1)(i) – interest of justice – Section 9 considerations exist – tendency to interfere with State witnesses – narcotic drug – serious charge – bail refused

Cases Cited
State v Madiring [2019] PGNC 41; N7737
Fred Keating v The State [1983] PNGLR 133
Bonga v The State [2022] PGNC 563
Tan Kheng Soon v The State [2023] PGNC 65
Walami v State [2021] PGSC 100; SC2182
Kum v The State (2017) N7002
Igo v The State [2016] PGNC 277; N6475 
Nombri v Kadai [2014] PGSC 75; SC1569
Maru and Oa v The State [2001] PGNC 151; N2045

Legislation
Controlled Substance Act 2021
Bail Act
Constitution of the Independent State of Papua New Guinea

Counsel	
Mr Paul Paraka, for the Applicant 
Mr Thomas Kokents, for the State

25th April, 2023

1.	TAMADE AJ: The Applicant Naika Viri is a 28-year-old female from Korobosea Village of Motukoita LLG, National Capital District. She is married and has two children ages 8 years and 6 months. 

2.	She states that she was charged along with a Co–Accused, that she was apprehended at the Seven-mile Fed Ex, PNG Air Freight Ltd by Police for consigning a package allegedly containing methamphetamine. She denies that she was at the scene of the packaging area at the Fed Ex and had no knowledge of the substance that was carried by her Co-Accused. 

3.	Pursuant to the Information laid against her, the Applicant is charged contravening section 68(1)(b) of the Controlled Substance Act 2021 that she and her Co-Accused Daniel Andy did each and severally move 170 grams of methamphetamine from Range View Unit 83 to Waigani FedEx, PNG Airfreight Ltd at 7 mile, a commercial quantity within PNG with the intention of receiving a benefit.

4.	 It is alleged that the Applicant works for a Leon Aufong and was directed to send a parcel through FedEx overseas with a taxi driver being the Co- Accused. The controlled substance was discovered after an x-ray scan was carried out by the staff of the PNG Air Freight Ltd which revealed the crystal-like substance to be drugs. Police then apprehended Daniel Andi who admitted that he was sent by a woman who was sitting inside his taxi cab that was located on the street adjacent to the PNG Air Freight Ltd. The Applicant was then apprehended and stated that she was sent by a Malaysian National known as Leong Aufong who resides at Unit 83, Range View at Waigani. Police proceeded to Unit 83 at Range View and discovered methamphetamine at the Unit packed inside bags. Another person by the name of Tan Kheong Soon was also found and arrested at that premises. I have denied bail to Tan Kheong Soon previously as in my decision in Tan Kheong Soon v The State.

5.	 On 15 December 2022, the Applicant was refused bail by the District Court based on section 9(1)(i) of the Bail Act that the Accused dealt with a narcotic drug.

6.	The Applicant’s application for bail is made pursuant to section 42(6) of the Constitution and section 6 of the Bail Act. Section 42(6) of the Constitution is in the following term:

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

7.	The presumption of the entitlement to bail under section 42(6) of the Constitution is weighed against the considerations under Section 9 of the Bail Act. Section 9(1) of the Bail Act is as follows with applicable parts underlined:

9. 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)[3] 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.

8.	The Applicant in these proceedings applies for bail on the following grounds:

a)	She has two young children in which one is still an infant at 6 months old and is still breastfeeding and dependent on the Applicant. Her baby is dependent on breast milk and her parents are financially incapable of paying for bottled milk for the baby.
b)	She has a medical condition of hypertension and since being detained, she has had no proper medication to stabilize her situation. Since being in custody, she had experienced some hypertension on 4 March 2023 however she was not brought to the hospital for treatment.
c)	She is the eldest of her two siblings, both of her parents are retired and they also reside with her and she looks after her parents, her husband and her family. She is the sole bread winner.
d)	Her eldest son is 8 years old and is unable to go to school since her detention.

9.	The Courts have found that an application for bail starts with a heavy presumption that bail should be granted in his or her favour pursuant to section 42(6) of the Constitution and the Bail Act and unless on reasonable grounds, one or more of the grounds in section 9(1) of the Bail Act is made out. In Fred Keating v The State , even if one or more of the grounds in section 9(1) of the Bail Act exists, the Court still has the discretion to consider bail.

10.	Mr Paraka has referred me to my previous decisions in Bonga v The State and Tan Kheng Soon v The State. Mr Paraka has submitted that methamphetamine is not a ‘narcotic drug’ within the meaning of section 9(1)(i) of the Bail Act and has submitted that the Court’s decisions in Bonga and Soon are in error and the Court should correct that.  Mr Paraka strenuously argued that it is the Parliament’s role to amend the Bail Act and define what is a narcotic drug and as it is, methamphetamine is not a narcotic drug within the meaning of the Bail Act.

11.	The State has strongly opposed bail stating that the Applicant was involved in the consignment of the drug methamphetamine which is a lucrative drug in the illegal market in PNG and overseas and the trafficking of methamphetamine is a lucrative, well organised and well established business in PNG which involves drug syndicates.

12.	The State has raised the existence of grounds 9(1)(e), (f) and ground (i) that it is necessary for the Applicant’s own protection that she remain in custody as the Applicant can encounter reprisal from other drug gangs if she is found to be cooperating with the police. The State has also argued that the Applicant is likely to interfere with State witnesses or the person who instituted the proceedings as the State is of the view that the Applicant may have connections who may use funds or manpower to intimidate or disrupt police investigations. The State also refers to my decisions in State v Bonga that the definition of narcotic drug under section 9(1)(i) of the Bail Act should extend to controlled substances under the Controlled Substance Act as methamphetamine is a dangerous drug.

13.	 In Walami v State, the Supreme Court said that if the State opposes bail, it should establish that one of the circumstances under section 9(1) of the Bail Act exists. In Kum v The State, the Court stated that bail should not be used as a punishment against the Applicant.

14.	The Controlled Substance Act 2021 is a recent legislation and defines methamphetamine as a controlled substance. This is a highly dangerous drug the world over which is known to destroy societies with disastrous effects on the human body. Its production and market in the illegal drug trade is sinister and highly organised crossing borders of countries and in some parts of the world, its legal ramifications in penalties for being in possession of the drug can be very severe. 

15.	The Bail Act came into effect in 1977, at that time up until today, the definition of a narcotic drug was confined to the definition of narcotic drug as in the Customs Act 1951. The definition of a narcotic drug under the Customs Act does not include methamphetamine though I maintain the view that at that time of the coming into effect of the Bail Act, methamphetamine was not known in PNG for that matter and the use and trafficking of drugs was not a serious problem in society at that time. Because of the impact of methamphetamine in society today, Parliament has passed the Controlled Substance Act 2021 to curtail the production, use, and trafficking of this highly illicit drug. The aim of the Controlled Substance Act 2021 as stated in that legislation is:

Being an Act to -
(a)         provide for and regulate controlled substances to protect individuals and the society from its illicit and harmful effects; and
(b)         establish criminal offences relating to the use of illicit drugs and abuse of licit drugs and precursor chemicals and implements; and
(c)         give effect to any international convention relating to controlled substances, controlled plants and controlled precursors, and for related purposes.

16.	Section 3(3) of the Controlled Substance Act states that the provisions of the Controlled Substance Act 2021 are in addition to the Customs Act 1951 and shall apply to any controlled substance that is within a customs-controlled area. The implementation of the Customs Act as to narcotic drugs shall therefore include controlled substances under the Controlled Substance Act 2021 in my view.

17.	 I am of the view that the intention of curtailing narcotic drugs under section 9(1)(i) of the Bail Act by Parliament was to give to the Court the discretion in considering the control and trafficking of these narcotic drugs as defined under the Customs Act which can be trafficked across PNG entry and exit points and across borders to other countries. It is the seriousness of narcotic drugs which can be trafficked to ports or airports etc that the definition referred to in the Bail Act section 9(1)(i) is as under the Customs Act, a legislation that controls the importation exportation and or movement of goods through entry points in the country. It does not need complicated science to reasonably conclude that methamphetamine is a narcotic drug, it is a dangerous and illicit drug and it is a controlled substance. I maintain my view that in effect, the definition of a narcotic drug in section 9(1)(i) of the Bail Act though it is yet to be in express terms to include methamphetamine under the Customs Act, section 3(3) of the Controlled Substance Act nets it or brings it in addition to narcotic drugs under the Customs Act. The existence of methamphetamine and other controlled substances under the Controlled Substance Act as included to the Customs Act is therefore within the ambit of section 9(1)(i) as a narcotic drug and the Court must be weary of it as a consideration for bail.

18.	 Under section 3 of the Bail Act, the object of the Bail Act is for the Court to give effect to section 42(6) of the Constitution (and against the considerations of section 9(1) of the Bail Act) and unless the interest of justice otherwise requires. Where does the Court draw the line as to the interest of justice? To take into account interest of justice in my view is to consider methamphetamine as a narcotic drug 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 as under section 9(1)(i) of the Bail Act. In Igo v The State, the Court said that the interest of justice under the Bail Act is that in regard to the aiding the escape of a prisoner:

“The interest of justice here is that fugitives from the law should be captured and that nothing and no one should be allowed to impede the efforts of law enforcement agencies to recapture such persons. And those alleged to have aided in their escape and charged should not be granted bail until and unless such escapee(s) are recaptured.”

19.	The interest of justice considerations is different from case to case. In this case, it is in the interest of justice in my view to consider that methamphetamine is a narcotic drug and should be considered a narcotic drug for the purpose of section 9(1)(i) of the Bail Act and section 3(3) of the Controlled Substance Act as its possession, importation or exportation apart from medical use is illegal and can be lethal for personal use and  is a sophisticated and lucrative drug in the drug syndicates and cartels crossing PNG borders overseas.

20.	In Fred Keating v The State, the Court held that:

“Once one or more of the considerations in s. 9(1) are proved bail should be refused unless the applicant shows cause why his detention in custody is not justified.”

21.	The Applicant has stated that she has a medical condition of hypertension however there is no medical report of a doctor produced to the Court. In Nombri v Kadai, the Court said that:

“Where lack of medical services at the jail is relied upon, the applicant must provide evidence of lack of medical facilities at the place of detention provided by the jail authorities in conjunction with health services offered by health authorities outside the jail.”

22.	In Maru and Oa v The State in regard to an Applicant’s need to attend to their family welfare, Justice Kandakasi (as he was then) said these:

“..the comments I made in John Raikos v. The State (supra) in relation to the arguments centred around family difficulties and needs at page 4:
...the grounds advance are factors that should have been considered well before the offence was committed, if indeed, the applicant was involved in the commission of the offence. I hold the view that such factors should not form the basis to grant bail. This is because the kinds of difficulties and hardships advanced are the natural consequence of committing a crime at the first placed. In holding that view, I am also mindful of the fact that an accused person remains innocent until proven guilty according to law. At the same time I am mindful of the fact that a legitimate process also provided for by the Constitution as been set in motion. There must therefore, be a presumption that the applicant has been charged and detained on some proper basis. I believe that is why the Bail Act as been enacted with the provisions of s.9 in it.”

23.	The Applicant’s reasons to attend to her 6-month-old baby, financially providing for her family and caring for her family are not considerations for the grant of bail.  The Applicant’s medical condition has to be supported by medical evidence and evidence that the medical service provided for in the Correctional facility is insufficient to cater to her specific medical need. The Applicant has not provided these reasons and evidence. 

24.	I also accept the submissions by the State that there is present in this case the considerations under section 9(1) of the Bail Act that it is for the Applicant’s own safety that she be in custody given the illicit drug methamphetamine and the illegal drug networks around it and that there is a likelihood that the Applicant may interfere with State witness. This may not be direct but there is a possibility of the use of money and coercion in the drug business to interfere with State witnesses. 

25.	The Applicant’s submissions that she will lodge a Constitutional challenge to the Controlled Substance Act and the delay in her substantive criminal proceedings are not considerations for bail, they are matters in which is proper for her substantive case.

26.	 For all these reasons in this decision, bail is shall be refused.

27.	The Court, therefore, makes the following order:

i)	The Application for bail by Naika Viri is refused.
________________________________________________________________
Paul Paraka Lawyers: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent