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Diawo, Re [1980] PNGLR 148 (4 July 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 148 - Re Bail Act 1977; Application by Herman Kagl Diawo 

[1980] PNGLR 148

SC177

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RE HERMAN KAGL DIAWO

Waigani

Kearney DCJ Kapi Miles JJ

29 May 1980

4 July 1980

CRIMINAL LAW - Practice and procedure - Bail application - During course of trial - Right to bail - Burden of proof on State to justify detention during course of trial - Bail Act 1977 s. 9[cclviii]¹ - Constitution of the Independent State of Papua New Guinea s. 42(6).[cclix]²

An applicant for bail during the course of his trial:

(a)      is entitled to bail unless the interests of justice otherwise require, under s. 42(6) of the Constitution of the Independent State of Papua New Guinea; and

(b)      must not be refused bail unless the State can satisfy the court on reasonable grounds as to one or other of the matters set out in s. 9 of the Bail Act 1977.

Appeal

This was an appeal against the refusal of an application for bail made during the course of a trial.

Counsel

C. Bruce, for the appellant (applicant for bail).

C. Maino-Aoae, for the State.

Cur. adv. vult.

14 July 1980

KEARNEY DCJ: This application for bail under s. 13(2) of the Bail Act 1977, came on before the court on 29th May. After hearing argument, the court granted bail on that day, and stated that it would later publish its reasons. It now does so.

The applicant has been a patrol officer since he left school seven years ago.

In September, 1978 he was charged before the District Court at Ialibu with stealing as a public servant the sum of K430 cash, the property of the Ialibu Local Government Council. The police alleged that this theft occurred between 17th February, 1978 and 10th March, 1978.

For reasons which do not appear, the committal proceedings did not commence in the Ialibu District Court until 23rd July, 1979, some eight months after the information was laid. The committal proceedings were adjourned from time to time, the applicant being meanwhile at liberty on K100 cash bail. On 7th August, 1979, he was committed for trial; he was granted bail upon the existing K100 cash he had paid in, and a condition was imposed that he report to the Kagua Police Detachment every Friday. His posting as a patrol officer is at Kagua. The police did not object to bail. It is to be noted that, as regards the reporting condition, the committing magistrate noted on the papers:

“... in few cases defendants who were released on cash bail made it difficult for the Police to locate them when they are to appear before the National Court. Because of this the defendant is to report to Kagua Police Detachment every Friday of the week. So the Police is in better position to locate him and inform him of the date and time of the National Court Sitting.” [sic] (emphasis mine).

The applicant informs the court that he strictly observed the conditions of his bail from August 1979 until his trial commenced in the National Court at Mendi in May 1980, a period of some nine months.

The committal papers were received in the National Court registry at the end of September 1979. The case was first listed for trial at Mendi in November 1979. The applicant informs the court that he attended at those sittings, upon being informed by the police. His case was not reached, and remained in the list for hearing. In February 1980 the applicant again attended at Mendi, upon being informed by the police; once again his case was not reached, and remained in the list for hearing. In March 1980 it was called on at Mendi; the State informed the National Court that the investigating police officer was at that time on leave; at the request of the State, and by consent, the case was stood over to the April sittings. The applicant did not attend the March sittings, because the police had not informed him that he was required to do so; nothing turns on that, as agreement to adjourn had been reached by the respective lawyers, except that it is reasonable to conclude that a pattern had been established whereby the applicant relied on the police to tell him when he had to attend for the hearing of his case.

The next sittings commenced at Mendi on Thursday 8th May. The applicant informs the court that the police did not tell him about these sittings or that he had to attend the court. That is not disputed. He says he first learned about the sittings on the afternoon of Thursday 8th May, when he was so informed by the council clerk Mapio Mandape. He immediately consulted the police at Kagua, he says, and his own superior officer, to see if they had had any messages for him to attend the court, at Mendi; he says they told him they had no such message. The next day, Friday, he says he reported as usual to the police at Kagua, and again enquired, and was told that they had no message for him to attend the court.

In fact an indictment had been presented in the court at Mendi, and when he did not appear, on Friday 9th May a bench warrant issued for his arrest on the application of the State. Mr. Kopunye of counsel for the applicant did not at that time oppose the isue of the bench warrant; he had no instructions.

The applicant was arrested under the warrant on Saturday 10th May, at Kagua, and taken to the Mendi police cells.

On Tuesday 13th May an application for bail was made at Mendi. It was refused, but the court apparently directed that the applicant be assisted in contacting his witnesses, and the police in fact took him around to various places, on Wednesday 14th May.

His trial commenced on Thursday 15th May, and continued until Monday 19th May, when it was adjourned until late in July. Application for bail was made, and refused. In pars. 9, 10 and 11 of his statutory declaration of 21st May, the applicant sets out the present position, and the reasons he seeks bail until his trial resumes in some eight weeks time, viz.:

“9.      My wife and children came to Mendi to see me on Saturday morning the 17th May. My wife told me that during the week a man by the name of Joseph Kawage ran naked through our house and tried to indecently assault her. She said they went to the Kagua Local Court over the matter and the man was fined. She says she is scared without me and I am worried for her and the childrens safety.

10.     Mr. Bruce again made an application for bail after Court on Saturday morning the 17th May 1980 and again on the Monday following that is the 19th May 1980 when the matter was adjourned until late July for further hearing. Bail was refused on both occasions. The reasons the judge gave for refusing bail on the Monday were; that he feared I may not turn up, that I might interfere with the prosecution witnesses and that during the adjournment I might manufacture evidence for my case. In answer to these reasons I say;—I have turned up for Court on some five occasions when requested to do so, I have made no contact with the prosecution witnesses over the last two years whilst awaiting for my case to be heard and I will not go near them until the case is finalised, I have told my solicitor, Mr. Bruce my story and I have no intention of changing it or obtaining further evidence which may be false.

11.     I ask for bail for two main reasons and they are that I be able to locate these witnesses (ie the truck driver and the four people from Mendo village) as they are vital to my case and that I can go home and look after my family as I am concerned for their safety and well being.” [sic]

This Court also has the benefit of the reasons of the learned trial judge under s. 16 of the Bail Act 1977, when refusing on 19th May, to grant bail. They are as follows:

“The above-named stands charged before me at Mendi on three counts of stealing as a public servant a total amount of K430. Having not had time to complete the case on the May, 1980 circuit to Mendi, I on 19th May adjourned the hearing to a date to be fixed on or shortly after 22nd July for continued hearing before myself at Mendi.

At the time of adjournment the State’s main witness Mapio Mandape had completed his evidence and there were three, possibly four, civilian witnesses (one resident in Port Moresby) yet to be called by the State and one or two police officers. The defence intimated that it would call four or five witnesses.

Upon the adjournment, counsel for the accused Mr. Bruce applied for release of his client upon bail and this application I refused. At the time of refusal I overlooked that s. 9 of the Bail Act, as is now apparent to me, applies to applications for bail during the course of a trial as well as to bail before commencement of trial, and acted on the basis that I was proceeding in the exercise of a general discretion such as was applicable in bail applications during trial in times before the Bail Act came into force.

Strangely, the Bail Act was not mentioned or referred to by counsel. I make no criticism of this. Obviously counsel took it for granted that we were all ‘ad idem’ concerning the applicable law. Possibly we were.

In the circumstances of this case I considered, on the aforesaid basis, that in the aggregate the dangers of non-attendance of the accused upon resumption of trial and of a person in his position attempting to interfere with civilian State witnesses and fabricate evidence were sufficient to require in the overall interests of justice his detention until the end of the trial. The case in my view gives considerable scope for such interference and fabrication.

I did not direct my mind specifically to whether I was satisfied that the accused was ‘unlikely’ to appear at his trial, or, again, whether he was ‘likely’ to interfere with witnesses. I take it that ‘likely’ means that there is more than a fifty per cent chance of the particular event occurring.”

It is clear from the Constitution of the Independent State of Papua New Guinea, s. 42 (6) that the applicant is entitled to bail during the course of his trial unless the interests of justice otherwise require. Some matters which are relevant to the interests of justice when considering bail during trial are set out in a Practice Note in England in 1974[cclx]³.

The nature of some of the matters to be considered is such that considerable weight must be given to any views thereon of the trial judge, who possesses advantages in that respect which this Court lacks. However, in this case his Honour was not referred to the Bail Act 1977, s. 9 of which makes it clear that bail during trial must not be refused unless the court is “satisfied on reasonable grounds” as to one or other of certain specified matters. His Honour, lacking such assistance, adopted the approach towards the grant of bail during the course of a trial, which had obtained prior to the passing of the Bail Act; under the old law while bail was very much in the discretion of the trial judge; in practice bail during the course of trial was rarely granted. The State now carries the burden of justifying detention during trial. It is clear that the Bail Act is a complete code dealing with interim judicial release, in this jurisdiction.

Mr. Maino-Aoae contended that the interests of justice required that bail be refused until the trial resumes at the end of July. He advanced grounds two of the statutory grounds.

First, that the applicant is unlikely to appear at his trial in July. The only real matter to support that ground, is the fact that he did not appear for his trial in May. That non-appearance has, I think, been sufficiently explained. I am not satisfied that he is unlikely to appear when his trial resumes.

Second, that the applicant is likely to interfere with witnesses. The only matter advanced to support this, is the fact that the applicant occupies the position of a “kiap” in the area. Bearing in mind that these proceedings were pending for some eighteen months, and there is no suggestion of any attempt by the applicant to interfere with any witnesses in that period, it appears to me that the mere fact that the applicant is a “kiap” cannot carry an inference that he is “likely to interfere”. And it is necessary that the State go so far, to establish the ground. It is unnecessary, in my view, to determine the precise meaning of “likely” in this context; putting the hurdle at its lowest—that it connotes no more than a real possibility—the State has not established any such possibility, to my mind.

As I am not satisfied as to any of the grounds listed in items (a) to (g) in s. 9(1) of the Bail Act 1977, it follows that bail must not be refused. I consider that bail should be granted to the applicant pending the resumption of his trial, upon the same terms as those on which he was admitted to bail by the committing magistrate.

KAPI J: This was an application for bail under s. 13(2) of the Bail Act 1977. Bail was initially refused by a judge of the National Court at Mendi.

A person who is arrested or detained for an offence is entitled to bail at all times from the time he is detained or arrested to the time he is acquitted or convicted unless the interests of justice otherwise require. (Section 42(6) of the Constitution.) This is a constitutional right and must be given readily unless the interests of justice otherwise require. The Constitution puts the onus on those who oppose bail to show why bail should not be granted. Section 9(1) of the Bail Act sets out the considerations upon which the court may refuse bail.

The Public Prosecutor who appeared to argue against the granting of bail in this case relied only on considerations under s. 9(1) (a) and (f). I set out the terms of these provisions.

“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; or

...

(f)      that the person is likely to interfere with witnesses or the person who instituted the proceedings ...”

Firstly, the Public Prosecutor argued that the applicant is unlikely to appear at the adjourned trial if granted bail.

The applicant was committed for trial on three charges of stealing on 7th August, 1979. The applicant had been on bail up to the time of his committal. On the day of his committal his bail was extended on the condition that he report to the Kagua police station every Friday. The committing magistrate is recorded as having explained the reason for requiring the applicant to report to the police in the following terms: “So the Police is in better position to locate him and inform him of the date and time of the National Court Sitting.” [sic]. The applicant’s case was first set down in the November sittings of the National Court in 1979. The applicant attended the sittings but the case was not reached and was stood over to the next sittings. It was listed again for the February sittings this year. The applicant again attended the sittings but the matter was not reached and it was further stood over to the next sittings. On both of these occasions the applicant was advised by the police to attend.

This matter came up for mention again in the March sittings. The prosecution was not ready to proceed as the investigating officer involved in the case was on leave. The matter was again stood over by consent. The applicant did not attend these sittings of the court. The applicant, in his statutory declaration, explained that he was not advised by the police to attend these sittings. The Public Prosecutor has produced no evidence to contradict this. I accept the applicant’s explanation and can attribute no fault to him for not attending.

The matter was listed again in the May sittings and the case came on for hearing before Mr. Justice Greville Smith on 9th May. On this date an indictment was presented against the applicant on three counts of stealing. He was not present on the hearing date and a bench warrant was issued to have him arrested. He was arrested and has been in custody since.

The Public Prosecutor relies on the fact that the applicant was informed by one of the principal witnesses, Mapo Mandape, on 8th May, to attend the hearing on 9th May, but he did not. He submits that this is an indication that if he is granted bail he is not likely to appear at the trial. However, it is apparent from the applicant’s statutory declaration, that upon receiving this information he went straight to Kagua police station and asked Constable Manum if he had received information for him to attend court. Constable Manum informed him that he had not received any information. On the same afternoon he also checked with his boss but found that no messages had been received by him to attend court. The following day, 9th May, the applicant again went to the police station at Kagua and there spoke to Constable Amet and Constable Botti and they again told him that they had not received any message for him to attend the National Court sittings.

The applicant explained that after receiving negative responses to his enquiries regarding attendance at the court hearing on 9th May, he did not attend the National Court sitting at Mendi. The Public Prosecutor did not produce any evidence to contradict this. I accept the applicant’s version and I am satisfied that the applicant’s behaviour on this occasion was reasonable and consistent with the condition of his bail.

It is also significant that no other evidence has been produced to show that the applicant had breached the conditions of his bail at any time since his committal. I find that there is no evidence to support the contention by the Public Prosecutor that the applicant is not likely to appear at the adjourned trial if granted bail.

Secondly, the Public Prosecutor submits that the court should refuse bail on the basis that the applicant is likely to interfere with witnesses. He makes this submission on the basis that the applicant is by occupation a kiap and that the offence with which he is charged involves witnesses he once had influence over and that he is likely to interfere with those witnesses. The Public Prosecutor again did not produce any evidence to support this contention.

No inference such as the one the Public Prosecutor asks this Court to draw from the accused’s position as a kiap can be drawn without further evidence of this fact. There is no evidential basis for this argument, and I reject it.

The Public Prosecutor has referred the court to authorities on the meaning of the word “likely” as used in s. 9 of the Bail Act. It is unnecessary for me to go into this as I have found that there is no evidence to support any of the contentions he makes under s. 9 of the Act.

MILES J: This was an application to the Supreme Court for bail pursuant to s. 13 (2) of the Bail Act 1977, bail having been refused by a National Court Judge. Bail was refused on 19th May, 1980, when a trial at Mendi in which the applicant was the accused was adjourned to a date to be fixed on or shortly after 22nd July for continued hearing before the learned trial judge at Mendi.

Counsel for the applicant Mr. Bruce and the Public Prosecutor who has appeared to argue against the application agree that his Honour was not referred to the provisions of the Bail Act 1977, and his Honour says so in his written reasons for decision. However this application is a hearing by the Supreme Court and is in no sense an appeal against the decision to refuse bail.

The provisions of the Bail Act 1977 must be read subject to the Constitution, the relevant provision being s. 42 (6) which reads as follows:

“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.”

This provision is repeated in s. 3 of the Bail Act 1977.

It is clear that this provision applies right up until the time of acquittal or conviction, and that there can be no question of it not applying in the present case of a trial which is part heard.

As bail is a matter of constitutional right it is not surprising then that the Bail Act 1977 provides a set of criteria, not as to the granting of bail but as to its refusal. These criteria are set out in s. 9 of the Act, which provides where relevant as follows:

“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 will not appear at his trial if granted bail; or

...

(f)      that the person is likely to interfere with witnesses or the person who instituted the proceedings; or

...”

On 7th August, 1976, the applicant was apparently committed for trial on three counts of aggravated larceny, to appear at the Mendi National Court on a date to be fixed, on cash bail of K100. In a lengthy statutory declaration declared on 21st May, 1980, he traces the events since his committal for trial. It was a condition of his bail that he report to the Kagua police station every Friday and he did that right up until he was arrested. He attended sittings of the National Court at Mendi on 13th November, 1979, 19th February, 1980 when his trial was not reached but did not attend when the matter was listed on 12th March, 1980. He says that on the occasions when he did attend he was told to do so by police officers but that nobody told him to attend after that. He says he made a number of enquiries from the police and the complainant in the case but still did not know when he was to attend court to take his trial. Apparently he was living and working at Kagua, some hours by road from Mendi.

Eventually the accused was arrested on a bench warrant on Saturday 10th May, 1980 and he has been in custody since. He gave instructions to the Public Solicitor on 12th May, 1980 and the trial commenced on Friday 16th May, 1980, no application for an adjournment being sought. Applications for bail were made unsuccessfully on that day and on Saturday 17th May, 1980 and as indicated above on 19th May, 1980.

There are several aspects of the matter which the applicant might rely upon as favouring the granting of bail but it is not necessary to look at them. The matter is covered by the Bail Act 1977 and the Public Prosecutor does not rely on any part of the Act except s. 9 (1) (a) and (f).

The court has to be satisfied of the likelihood of the contingencies referred to in these provisions.

Firstly the court has to be satisfied that the accused is unlikely to appear at the resumption of the trial if granted bail. On the material before me I cannot for one be so satisfied. It is alleged by the Public Prosecutor, and he may under s. 9 (3) of the Act, ask the court to act on information from the bar table, that the accused was told by the complainant when the trial was to take place and the accused replied that he was not going to go, or something to that effect. This is inconsistent with the statement contained in the applicant’s statutory declaration and is not in accord with the rest of the background of the matter.

I cannot find that on any basis there is a likelihood that the accused is unlikely to appear at the adjourned trial if granted bail.

It is put in the alternative by the Public Prosecutor that the court should find that the applicant is likely to interfere with witnesses. This is put on the basis that the applicant is by occupation a kiap and that the offences with which he is charged relate to people whose kiap he once was, but apparently no longer is. It seems to me that no inference can be drawn from the accused’s position as a kiap that he would be likely to interfere with witnesses.

The Public Prosecutor has put that the word “likely” as used in s. 9 of the Bail Act means at the most “probable”, at the least “a real possibility” and he cited authority to us.

I would not like to embark on a philosophical consideration of the word “likely” in a hearing of this nature in which all the evidence seems to point one way and on which the Court has already given its decision. To attempt to do so seems to me to be fraught with the same sort of dangers as are involved in an attempt to explain or elaborate on the term “reasonable doubt”. See La Fontaine v. R .[cclxi]⁴. For my own part it is sufficient to say that in this case whilst it may be possible that the accused will not appear at the adjourned hearing and possible that he may interfere with witnesses, those contingencies are so remote that they may not be said to be likely in any proper sense of that word.

Upon these grounds I considered that the application should be granted.

The applicant to be granted bail pending the resumption of his trial, on the same terms as those on which he was granted bail by the committing magistrate.

Solicitor for the State: C. Maino-Aoae, Public Prosecutor.

Solicitor for the defence: D. J. McDermott, Acting Public Solicitor.

[cclviii] Infra p. 153.

[cclix] Infra p. 155.

[cclx] [1974] 2 All E.R. 794.

[cclxi] [1976] HCA 52; (1976) 136 C.L.R. 62, per Barwick CJ. at pp. 69, 71.