SC1446

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

S.C.APP. NO. 05 OF 2015

IN THE MATTER OF BAIL APPLICATION PURSUANT TO SECTION 6, 7 & 13 OF THE BAIL ACT

GILBERT GUARI
Applicant

AND:

THE STATE
Respondent

Waigani: Sawong, Murray and Geita, JJ
2015: 29 June & 3 July

CRIMINAL LAW – Bail application – application after refusal by National Court - ss 6 & 13)(2) of Bail Act

CRIMINAL LAW - Fresh Application - principles distinct from principles in application for bail based on changed circumstances. 

CRIMINAL LAW - Grounds for bail - prolonged detention – medical condition

Cases cited:

Noah Kero v The State (2009) SC998
The State v Paul Tarccisius Tohian (1990) PNGLR 173
Paul Alois Kingsley v State (1980) PNGLR 36
Dr Theo Yausase v The State (2011) SC1112
Re Fred Keating (1983) PNGLR 133
Steve Lester v The State (N2044) 

Counsel:

Mr. Gilbert Guari, the Applicant in person
Ms. S Dusava, Counsel for the Respondent

DECISION

3 July, 2015

1.	BY THE COURT: Gilbert Guari (the Applicant) was charged with the following charges: 

(1)	1 count of impersonation under Section 488 of the Criminal Code Act (the Code).

(2)	 13 counts of Deprivation of Liberty under Section 355 of the Code.

(3)	1 count of Kidnapping for Ransom under Section 354 of the Code, and 

(4)	1 count of Rape under Section 347 of the Code.

2.	In total the Applicant was charged with 16 charges, which were allegedly committed with 4 other co-accuseds.

3.	He pleaded not guilty to all those charges. That resulted in a trial which lasted till September of 2012. A decision on verdict was reserved then and is still pending.

4.	The allegations by the State are set out in its submissions at paragraph 1.3 to 1.9. Those are reproduced here:

That on Sunday the 27th of May 2009 at about 7:00 pm, the accused persons were in the company of other man. They arrived at the premises of the complainant Chris Kasse and Paula Naron at Rainbow Estate, NCD. The accused with their accomplices were armed with weapons and went in a vehicle, white in colour double cabin. They demanded to see the complainant Paula Naron.

It was alleged that some members of the gang were dressed in Police uniform. They told the complainants and victims that they were there to take them to the Police Station in relation to allegations against one Tamara Player Tomscoll who is the daughter of one of the main complainants, Ms Paula Naron.

The gang told all the members of the household or the complainants to hop into the motor vehicle they came in. When the complainants hopped on they were then driven away by the gang.

It was alleged that the gang drove to several locations starting at Baruni Dump, then to Morata where two of the male complainants were dropped off. The rest of the family members/complainants were driven to Nine mile, outside Port Moresby. At 9 Mile the complainants were held against their will. It was there that the gang members were in touch via mobile phone conversation with other accomplices of the accused persons.

The gang members got the main complainant Ms Paula Naron to speak to accomplices of the accused persons. It was during these telephone conversations that it became clear that the gang members were holding the family members ransom for a demand payment of K10 000.000 before they could be released.

At about 3:00 am the gang members took the complainant Ms Paula Naron in the same utility and drove back to the city. It is alleged that the gang members took the complainant to 6 mile, NCD. It is alleged that whilst there the accused Gilbert Guari had sexual intercourse with the victim against her will and without her consent.

Thereafter, it is alleged that in the early morning hours Monday the 19th of May 2012, the complainant was taken to 9 mile settlement, outside NCD, where she was unlawfully detained in a house against her will. It is alleged that the accused Jeffery Wosi had sexual intercourse twice with her against her will without her consent.

Whilst she was held hostage at the 9 settlement the rest of the complainants were taken back to the city and dropped off at Waigani where they then returned home. 

On Monday 19th of May 2009, the sum of K10, 000.00 was organized by the other main complainant and partner of Ms Paula Naron, one Chris Kasse asked his employer, the Department of Labour to assist pay the ransom to save his partner. The Department then paid the ransom money in total of K10, 000.00 in cash which was then handed over to the accused persons and their accomplices. Thereafter the complainant Ms Paula Naron was released by her captors on 3rd October 2013.

5.	Prior to the trial, the Applicant applied for bail in the National Court and was refused. The Applicant did not produce any reasons for the National Court's refusal of bail. When asked what the reasons were and why he had not included them, the applicant answered no reasons were given, and since the conclusion of the trial, he has returned to custody and is still awaiting a decision on verdict. This has prompted him to file the application now before us. It is a fresh application and is it is made pursuant to Sections 6, 7 and 13 of the Bail Act.

Law 

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.

Section 7. Bail on adjournment

Subject to Section 4, where a person is in custody in connexion with any proceedings, including proceedings for committal for trial or sentence in the National Court, the court shall, on each occasion that it adjourns the proceedings before conviction, consider and accordingly grant or refuse bail to that person in accordance with Section 9.

Section 13. Further application may be made after refusal

(1)	Where a person is refused bail by a Magistrate he is entitled to apply for bail, immediately if he so desires, to a Judge of the National Court.

(2)	Where a person is refused bail by a Judge of the National Court he is  entitled to apply for bail, immediately if he so desires, to the Supreme Court.

(3) Where an application is made under Subsection (1) or (2), the  applicant shall produce a copy of the reasons given under Section 16.

(4) An application may be made under Subsection (1) or (2) whether or not bail was refused—

(a) under this Act (including this section) or under any other law; or

(b) on an application.

6.	Of the 3 provisions of the Bail Act, relied upon by the applicant in bringing his application, we accept that we have jurisdiction under Sections 6 and 13 only and not section 7, to consider this application.

7.	In Noah Karo .v. The State (2009) SC998, the Supreme Court accepted that, as it is the next bail authority to the National Court under Section 13 (2) of the Bail Act, it has jurisdiction to determine an application for bail after it is refused by the first bail authority.

8.	In that case, in determining an application for bail under Section 13 (2) of the Bail Act, based on change of circumstances, the Court held, that an application for bail to the Supreme Court based on change of circumstances is different to a fresh application for bail to the Supreme Court.

9.	At paragraph 6 of the judgment, the Court said: 

"They are different because the principles governing their application are different. In an application for bail based on change of circumstances, an Applicant is required to establish that circumstances have changed since the last application for bail was refused and the onus is on the Applicant. He must demonstrate that the grounds upon which the National Court had refused bail have changed or no longer exists. Further, the circumstances must be relevant to the earlier application for bail. Only then will the Supreme Court grant bail."

10.	Then at paragraph 7, the Supreme Court went on to say: 

"In the case of a fresh application for bail, the Court may "rehear" the application for bail. This means that first, an Applicant may raise the same grounds relied upon in the last application for bail before the Supreme Court for consideration. In other words, an Applicant is not required to establish that circumstances have changed since the last application for bail was refused. Secondly, the Applicant is entitled to raise any new grounds to support the application for bail. See the State v Paul Tarccisius Tohian (1990) PNGLR 173.

11.	We accept and adopt the principles set out above in relation to fresh application before the Supreme Court.

Present Application

12.	 In his submission both written and oral, the applicant submits he is making a fresh application under Section 13 (2) of the Bail Act and not on the basis of changed circumstances.

13.	In support of his application, the Applicant relied on a number of affidavits. These include: 

(1)	 Affidavit of himself (Gilbert Guari) sworn 17 April 2015 and filed 27 April 2015

(2)	 Affidavit of Dr. Jack Amana sworn 17 April 2015 and filed 27 April 2015.

(3)	 Affidavit of Elizah Anga sworn 17 April 2015 and filed 27 April 2015 and 

(4)	 Affidavit of Michael Sovinio sworn also 17 April 2015 and filed 27 April 2015.

14.	The Applicant's affidavit discloses his personal background information which includes his age which is, 43 years old; marital status; the charges laid against him; the date he was remanded; his first bail application and the result; that he was tried by the National Court on all his charges between July and September of 2012; that a decision on the verdict was reserved then and is still pending; that whilst awaiting his trial and after the trial, he has been unwell and has been in and out of the Port Moresby General Hospital 3 times since his detention. He also disclosed his employment background; that he was a police man who had served the Royal Papua New Guinea Constabulary for over 17 years, but was dismissed from the force, and at the time of his arrest he was awaiting his appeal against the dismissal.

15.	Michael Sovinio and Elizah Anga, are the Applicant's proposed guarantors. They both gave evidence of their knowledge of the Applicant and their knowledge of their obligations as guarantors if the application is granted.

16.	Dr. Amana, deposed that he first saw the Applicant in June or July of 2011, when he complained of chest pain.

Then after several visits, he admitted the Applicant for further tests in October 2012, then again in October 2014 and most recently on 30 January 2015. 

During the times he had attended to the Applicant, he observed the applicant developed a condition known as Angina Hypecholestroleremia. Dr. Amana explained such condition is a situation of high cholesterol build up in the artery which restricts flow of blood to the heart, and to assist the Applicant, he recommended a change in diet and active exercises to burn down fat.

This was reduced to a Report made on 25 October 2014. That Report is attached to the Applicant's affidavit as Annexure 'D'.

17.	In summary, the applicant argues that he be granted bail on the grounds of prolonged detention and medical condition

18.	In response, counsel for the State relying on the allegations against the Applicant, objected to bail being granted on the basis of Section 9 of the Bail Act considerations. More specifically, Section 9 (1) (a); Section 9 (1)(c)(i); Section 9 (1)(c)(ii); Section 9 (1)(c)(iii) and Section 9 (1)(f).

19.	With respect to Section 9 (1) (a), Ms Dusava submitted the applicant at the time of the commission of the offences was a Policeman. He is no longer a policeman having been terminated from the Police Force in 2007, he has no permanent address and therefore there is no guarantee that he will be present in court if and when the trial Judge delivers Ruling on Verdict.

20.	With respect to Section 9 (1)(i)(ii) and (iii), Ms Dusava, submitted the applicant was indicted on the allegation of a serious assault upon 13 victims (counts 2- 13 on the indictment); in addition, the applicant was indicted on the charge of Rape against one Paula Naron. The alleged offence involves a serious assault in that one, Paula Naron was sexually assaulted; there was a threat of violence on all the victims and there was the use of a firearm in the commission of the offence. 

21.	With respect to Section 9 (1)(f). Ms Dusava submitted the applicant was instrumental on the organization of the charges which he was indicted on. As a Policeman at the time of the commission of the crime the applicant was instrumental in using his position as a policeman to obtain police uniforms to impersonate Officers.

22.	In Paul Alois Kingsley .v. State [1980] PNGLR 36 the Court held:

"Once State raises the presence of a consideration under Section 9 (1) of the Bail Act, the onus is on the applicant to prove otherwise."

23.	 In the present case, State has raised the presence of Section 9 (1)(a), (c)(i)(ii)(iii) and (f). The Applicant did not make any submission, nor said anything in the affidavits he relies on, rebutting the State's objections to bail. The allegations against the Applicant are very serious. The applicant was charged and tried on 16 charges. The offences he is alleged to have committed consisted of a serious assault on one person, threat of violence to 12 other persons and a firearm was used. In the circumstances, we accept the State's submissions and find Section 9 (1) (a), (c)(i)(ii)(iii) and (f) of the Bail Act are present.

24.	We also accept that even after a bail authority finds one or more of the considerations under Section 9 (1) of the Bail Act has been established or is present, it does not follow that bail must be refused. There is still discretion in a bail authority to grant bail, unless the interest of justice otherwise require. In other words an Applicant must show by appropriate evidence that his continued detention in custody is not justified. (See Re Fred Keating [1983] PNGLR 133, Steve Lester .v. The State (N2044) and Dr. Theo Yausase .v. State (2011) SC 1112).

25.	In light of our finding that Section 9 (1) (a); (c)(i)(ii)(iii) and (f) have been established, it is now incumbent on the Applicant to show that it would not be in the interest of justice to refuse him bail.

26.	The Applicant relies on 2 grounds. Namely, prolonged detention and his medical condition.

Prolonged detention

27.	In Yasause v The State, the Supreme Court at Paragraph 17 stated:

 "In any bail application, the Court should take into account the length of time the applicant has been in custody. Generally speaking the longer the period in remand, the more likely it is that an applicant will be granted bail."

28.	We accept that position but add that, it is not automatic that an applicant who has been in custody for a longer period must be granted bail on that factor alone. The bail authority must still consider where the interest of justice lies before deciding to grant or refuse bail. If the interest of justice lies against the grant of bail, then it must be refused even though the applicant has been in custody for a lengthy period. Such a conclusion is giving effect to section 42 (6) of the Constitution. 

29.	In this case we accept that the Applicant has been in custody for a lengthy period. However, we consider there are other matters of relevance as well that must be taken into account before a decision to grant or refuse bail can be made. These matters include:

Firstly, whether or not the applicant has been accorded a fair trial . In this case, he has and is now awaiting a decision on his verdict, and not awaiting trial. This makes his case different to that of Yasause; 

Secondly, the nature and seriousness of the offence committed. The applicant in this case has been charged and tried for a total of 4 different offences prescribed in the Criminal Code Act. Of the 4 different offences, one offence involved 13 counts. Then of the 4 offences, the maximum penalty prescribed for each of these 4 offences are as follows:

I.	Impersonation – 3 years

II.	Deprivation of liberty- 3 years

III.	Kidnapping for ransom – Life imprisonment and 

IV.	Rape-15 years

Thirdly, these offences were committed against a number of persons by a large group of men, including the applicant and the offences were committed against a family in their home and in the middle of the night.

Fourthly, a number of considerations under Section 9 (1) were raised by the State and lastly, the applicant failed to disprove the presence of those considerations raised by the State. 

We cannot simply ignore these matters and so this ground must fail.

Medical condition

30.	As to this ground, the Applicant submits he was diagnosed with a heart condition known as Angina Hypercholestroleremia in 2011, and has been on medication since. He relies on the evidence of Dr. Amana which includes a medical report dated 25 October 2014. This report is about 8 months out of date. Additionally, the Applicant relies on a Summary of Discharge, which is annexure 'E' to his affidavit. This summary essentially shows he was readmitted on 30 January 2015 and discharged on 21 February 2015. The Discharge report which is 4 months old, shows his condition was stable. There is no fresh report of his condition at the time of making his application. If an applicant expects the Court to act on medical evidence, it is incumbent on him to produce current evidence. (Dr. Theo Yausase -v- The State (2011) SC1112).

In this case, the applicant's medical evidence is outdated. It follows that this ground must also fail.

Conclusion 

31.	For the reasons we have given above, bail is refused.

________________________________________________________________

Gilbert Guari: Applicant in Person 
Public Prosecutor: Lawyer for the Respondent/Appellant