N10834

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA No. 119 OF 2023

LUKE MEDA

V

THE STATE

Lae: Murray J
2023:  12th September & 28th October

CRIMINAL LAW - PRACTICE AND PROCEDURE - Bail Application- National Court – Offence of  Trafficking methamphetamine, a Controlled Substance  - s. 68 (1) of the Controlled Substance Act 2021 - Application filed before committal - Heard after committal pending trial -  Application pursuant to Bail Act - ss. 4 & 6 & Constitution - s. 42 (6) – Objections under ss.9(1) (f) & (i) of the Bail Act – whether  methamphetamine is a narcotic drug - Definition of narcotic drug under  s.9(3) of Bail Act & s.1 of Customs Act . 

Cases Cited

Re Fred Keating [1983] PNGLR 133
Yausase v State [2011] PGSC 15; SC1112 
Pandi Rami v State (CR (Ap) 419 of 2014) unreported and unnumbered judgement

Counsel

Mr. S. Toggo, for the Accused/Applicant
Ms. S. Joseph, for the Respondent

DECISION ON BAIL APPLICATION

28th October 2023

1.	MURRAY, J:   The Applicant is charged with 1 count of Trafficking a Controlled Substance contrary to Section 68 (1) of the Controlled Substance Act 2021 and is currently in custody. He was committed to stand trial in the National Court on 4 September 2023. His application for bail was filed on application for bail on 29th March 2023. The application did not get heard until, I heard it on 12 September 2023 and reserved my decision to today.

2.	The application is made pursuant to Section 42 (6) of the Constitution and Section 4 and 6 of the Bail Act. 

3.	In support of the application, the applicant relied on the following:

1.	His affidavit sworn and filed on 29 March 2023.
2.	Affidavit of Pr Lucy Saok (a proposed guarantor) sworn 4 August 2023 and filed the same day and
3.	Affidavit of Wala Malakai (another proposed guarantor) also sworn 4 August 2023 and filed the same day.

4.	 In essence the applicant seeks an order that, pending his trial, he be released on bail.

Law

5.	Section 42 (6) of the Constitution and Sections 4 and 6 of the Bail Act are in the following terms:

	Section 42(6) of the Constitution reads:

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

	 Section 4 Bail Act, only National or Supreme Court may grant bail in certain cases.

(1) A person -
	 (a)    charged with wilful murder, murder or an offence punishable by death; or 
	 (b)    charged with rape, abduction, piracy, burglary, stealing with violence or                   robbery, kidnapping, assault with intent to steal, or breaking and entering a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence, shall not be granted bail except by the National Court or the Supreme Court.
  (2) For the purposes of Subsection (1), “firearm” includes imitation firearm   whether or not it is capable of projecting any kind of shot, bullet or missile.

Section 6 Application for bail may be made at any time.
(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.
(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.
(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section 9.

6.	By virtue of these provisions, in particular s.42 (6) of the Constitution, bail is readily available for persons charged with offenses other than wilful murder and treason. However, it is not automatic.  Such person who applies for bail must still satisfy a bail authority that it is in the interest of justice that bail should not be refused.  In other words, it is a discretionary matter.

7.	The exercise of that discretionary power should be used readily unless one or more of the considerations under Section 9 of the Bail Act is established (Kapi DCJ as he then was in Re Fred Keating [1983] PNGLR 133).

8.	If one or more considerations in Section 9 of the Act is established, that does not automatically mean that bail must be refused. The Court or the Bail Authority still has a discretion not to refuse bail. The person applying for bail, must satisfy the Court or a Bail Authority that bail should not be refused. In other words, the applicant must show by appropriate evidence that his continued detention in custody is not justified. (see Re Fred Keating (Supra) per Andrew J and Steve Lester v. State, per Kandakasi J. This was also followed by and applied by the Supreme Court in Yausase -v- State (2011) SC 1112.

9.	In this case, State opposes bail, on the basis of 2 considerations under Section 9 of the Bail Act. The first is with respect to Section 9 (1) (f). Ms Joseph argued that, if the applicant is released out on bail, he is likely to interfere with the State witnesses or persons who institute the proceeding. The second is with respect to Section 9 (1) (i). Ms. Joseph argued that, the offence, to which the applicant is alleged to have committed, involves the possession, importation or exportation of a narcotic drug.

10.	In support of these arguments, Ms Joseph for the State relied on the affidavit of Sgt Manu Pulei, sworn 25 April 2023 and filed 26April 2023.	

11.	In response to the State’s argument, Mr. Toggo, lawyer for the Applicant submitted, the Section 9 (1) (i) consideration is not applicable in that, the applicant is charged with 1 count of transporting methamphetamine, a controlled substance contrary to Section 68 (1) of the Controlled Substance Act 2021. Section 9 (1) (i) of the Bail Act is concerned with possession, importation and exportation of narcotic drugs as defined by Customs Act 1951. By the definition, a narcotic drug as set out in the Customs Act does not include methamphetamine. 

12.	It was Mr. Toggo’s further submission that, in the event this Court upholds the objection under Section 9(1) (i), his client’s continued detention in custody would not be justified in that, he is charged with an offence that is not prescribed. He expands this argument by submitting, that, the charge is one of transporting methamphetamine, a controlled substance under Schedule II of Controlled Substances Act. A control substance is defined by that Act to mean a substance, a controlled drug, controlled plant or controlled precursor contained in Schedule I, II, III, or IV of the Act. Methamphetamine is not listed in any of those Schedules. Given that, Mr. Toggo submits methamphetamine is not a controlled substance and as such the charge is defective. This amounts to an exceptional circumstance that makes his client’s continued detention unjustified. Accordingly, this Court should grant him bail and make orders as proposed in [7] of his submissions.

13.	As to the consideration under Section 9 (1)(f), Mr. Toggo made no submissions in response.

Consideration

The issue is whether bail should be granted in light of the objections by the State.

14.	To decide on the issue, I will firstly consider the objections by the State. If I find the considerations under Section 9, the basis of the State’s Objection are not established, I will grant bail immediately. However, if I find a consideration under Section 9 is established, I will then go on to consider whether or not the applicant’s continued detention is justified. This will involve the considerations of the grounds the applicant relies on.

15.	I have in an application for bail by Pandi Rami (CR (Ap) 419 of 2014) said, where an objection is raised on the basis of a consideration under Section 9, it is prudent on the State to produce evidence to establish the considerations.

16.	Turning now to the objections. The first ground of the State’s objection in the present case is Section 9 (1)(f). With regards to this objection, the question is, whether or not the applicant is likely to interfere with the State witnesses. 
I am not satisfied that; this consideration has been established. There is, in my view no evidence of a likelihood of the applicant interfering with State witnesses. For me to accept there is a likelihood of the applicant interfering with witnesses, there must be evidence to show what the applicant has done, which can be, a conversation or it can be something in writing or a text message or physical attendance by the applicant. To just say that there is a likelihood of interference, is not sufficient. 
Accordingly, I find, Section 9 (1)(f) has not been established.

17.	As to the second ground of objection by the State, the argument by the State in essence is that the offence, to which the applicant is alleged to have committed, involves the possession, importation, or exportation of a narcotic drug. Section 9 (1) (i) of the Bail Act is in the following terms:
	 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; 

18.	Subsection (3) of Section 9 of the Bail Act states:
For the purposes of subsection (1)(i), “narcotic drug “has the meaning given in the Customs Act. 

19.	The Section 1 of the Customs Act defines narcotic drug as follows:
“narcotic drug’’ means any goods consisting of, or of a mixture containing bufotenine, dimethyltryptamine, lysergide, mescaline, psilocin or psilocybin, or any goods declared under Section 2 to be narcotic drugs for the purposes of this Act.  

20.	The applicant is changed with 1 count of transporting methamphetamine, a controlled substance contrary to Section 68 (1) of the Controlled Substance Act 2021.   
 
21.	Having had regard to the charge, the consideration of Section 9 (1) (i) of the Bail Act, and the definition of what a narcotic drug is, under Section 1 of the Customs Act, I find that, methamphetamine is not a narcotic drug as defined as, State has not convinced me that methamphetamine consists of, or of a mixture containing bufotenine, dimethyltryptamine, lysergide, mescaline, psilocin or psilocybin and nor has State convinced me that, methamphetamine has been declared a narcotic drug at this point in time. For it to be considered a narcotic drug, a declaration by the Minister must be made under Section 2 of the Customs Act. As it is, there is no evidence by the State that methamphetamine has been declared by the Minister as a a narcotic drug for Section 9 (1) (i) to become applicable. I am therefore not satisfied that Section 9 (1) (i) is established. 

22.	In light of my findings that both considerations under Section 9 (1)(f) & (i) have not been established, I do not need to consider the other submissions.

23.	Accordingly, I now grant bail to the Accused, Luke Meda with the following conditions:

(1)	Accused is to pay a cash bail of K5000.00.
(2)	Both proposed guarantors (Pr Lucy Saok and Wala Malaika) are approved and appointed as guarantors.
(3)	 They are each to pay a sum of K2000.00 as surety.
(4)	Accused is to report to the National Court Registry every Monday between 9:30am and 3:30pm.
(5)	The applicant must attend all National Court call-over at the beginning of every month, starting on 4th December or whenever the Court sits for that purpose until this matter is dealt with accordingly.
(6)	Accused shall not interfere with any State witnesses whilst out on bail.
(7)	Accused is not to leave Lae, Morobe Province without the leave of Court whilst on bail.
(8)	Accused is to reside at his current address which is Lamadep Base which is located at Speedway Gravel area. 
(9)	In the event that the applicant changes his address of residence, the National Court must be informed of the new address, immediately.
(10)	A bail certificate in those terms will be issued and you will be released upon the production of the receipt of payment of the total K9000.00.

24.	Formal Orders:

(1)	Accused is to pay a cash bail of K5000.00.
(2)	Both proposed guarantors (Pr Lucy Saok and Wala Malaika) are approved and appointed as guarantors.
(3)	They are each to pay a sum of K2000.00 as surety.
(4)	Accused is to report to the National Court Registry every Monday between 9:30am and 3:30pm.
(5)	The applicant must attend all National Court call-over at the beginning of every month, starting on 4th December or whenever the Court sits for that purpose until this matter is dealt with accordingly.
(6)	Accused shall not interfere with any State witnesses whilst out on bail.
(7)	Accused is not to leave Lae, Morobe Province without the leave of Court whilst on bail.
(8)	Accused is to reside at his current address which is Lamadep Base which is located at Speedway Gravel area. 
(9)	In the event that the applicant changes his address of residence, the National Court must be informed of the new address, immediately.
(10)	A bail certificate in those terms will be issued and you will be released upon the production of the receipt of payment of the total K9000.00.

Daniels & Associates Lawyers: Lawyers for the Applicant	
Public Prosecutor: Lawyer for the Respondent