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Tohian, The State v [1990] PNGLR 173 (12 May 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 173 - The State v Paul Tarccisius Tohian 

[1990] PNGLR 173

SC385

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE STATE

V

TOHIAN

Waigani

Kidu CJ Kapi DCJ Brown J

11-12 May 1990

CRIMINAL LAW - Particular offences - “Treason” - “Treasonable crimes” - Distinction - Relevance to bail applications - Criminal Code (Ch No 262), ss 37, 39 - Constitution, s 42(6).

CRIMINAL LAW - Practice and procedure - Bail application - Following committal for trial - Treasonable crime - Constitutional right to bail - Interests of justice - Grounds for refusing - Sufficiency of evidence - Constitution, s 42(6) - Bail Act (Ch No 340), s 9(1), (2).

The Constitution, s 42(6), provides that a person arrested or detained for an offence “other than treason” is entitled to bail at all times unless the interests of justice otherwise require.

The Criminal Code (Ch No 262), s 37, defines the “crime of treason”. Section 39 prescribes as “a crime”, inter alia, the intention (coupled with overt acts) of deposing or levying war against the Head of State.

The Bail Act (Ch No 340), s 9(1), provides that bail shall not be refused unless the court is satisfied on reasonable grounds, inter alia, that other indictable offences are likely to be committed, that the alleged act or acts constituting the offence charged consist of having or possessing a firearm or that the person charged is likely to interfere with witnesses.

On an application for bail by a former Police Commissioner who was charged with an offence under the Criminal Code, s 39(1)(b),

Held

(1)      Because the offences prescribed by the Criminal Code, s 39(1), are not crimes of treason as defined by s 37, the applicant was entitled as a matter of constitutional law, to be granted bail unless the State satisfied the court that it was in the interests of justice not to grant him bail, where the interests of justice included, but were not confined to, the matters set out in the Bail Act, s 9.

(2)      Matters material to the interests of justice need not be strictly proved as the bail authority is (pursuant to the Bail Act, s 9(2)) not bound by the technical rules of evidence: nevertheless evidence of such matters as distinct from inferences, is required.

(3)      Where the court is satisfied of one or more of the considerations in s 9(1) of the Bail Act, bail should be refused unless the applicant can show cause why his continued detention is not justified.

Re Keating [1983] PNGLR 133, applied.

(4)      In all the circumstances, bail should be granted.

Cases Cited

Diawo, Re [1980] PNGLR 148.

Keating, Re [1983] PNGLR 133.

Kou Dua, Re [1984] PNGLR 22.

Kysely v The State [1980] PNGLR 36.

Bail Application

This was an application for bail by a person charged with a “treasonable crime” following a refusal to grant bail by the National Court before committal. The application was dealt with as a fresh application.

Counsel

L Gavara-Nanu, for the applicant.

P Ume, for the State.

Cur adv vult

12 May 1990

KIDU CJ BROWN J: In this bail application, a preliminary matter was raised for determination. Counsel for the applicant, Mr Gavara-Nanu, submitted that as his client was not charged with treason he was entitled to be granted bail as a matter of right unless the State showed to the Court satisfaction that it was in the interests of justice to refuse bail to his client. This submission was based on s 42(6) of the Constitution 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.”

The applicant’s charge has been preferred under s 39(1)(b) of the Criminal Code (Ch No 262):

“39.    Treasonable Crimes

(1)      Any person who forms an intention:

(a)      to depose the Queen and Head of State from the style, honour, and royal name of the Crown of the United Kingdom of Great Britain and Northern Ireland, or of any other of Her Majesty’s dominions; or

(b)      to levy war against the Queen and Head of State within any part of Her dominions in order, by force or constraint, to compel the Queen and Head of State to change Her measures or counsels, or in order to put any force or constraint on, or to intimidate or overawe, any House of Parliament of any of Her Majesty’s dominions; or

(c)      to instigate a foreigner to make an armed invasion of any of Her Majesty’s dominions,

and manifests such intention by any overt act, is guilty of a crime.

Penalty: Subject to section 19 imprisonment for life.” (Emphasis added.)

As can be clearly discerned from the above definition the applicant is charged with a crime. It is s 37 of the Criminal Code which defines what treason is and this section says as follows: “

“37.    Treason

A person who:

(a)      Kills the Queen and Head of State, or does Her any bodily harm tending to Her death, maiming, wounding, imprisonment or restraint; or

(b)      kills the eldest son and heir-apparent for the time being of the Sovereign, or, if the successor, by virtue of Section 83 of the Constitution (Queen’s successor), to the Queen and Head of State is a male, the Queen Consort of the reigning King; or

(c)      forms an intention to do an act referred to in Paragraph (a) or (b), and manifests such intention by any overt act; or

(d)      conspires with any other person to kill the Queen and Head of State or to do Her any bodily harm tending to Her death, maiming, wounding, imprisonment or restraint; or

(e)      levies war against the Queen and Head of State:

(i)       with intent to depose the Queen and Head of State from the style, honour, and royal name of the Crown of the United Kingdom of Great Britain and Northern Ireland, or of any other of Her Majesty’s dominions; or

(ii)      in order, by force or constraint, to compel the Queen and Head of State to change Her measures or counsels, or in order to put any force or constraint on, or to intimidate or overawe, any House of Parliament of any of Her Majesty’s dominions; or

(f)      conspires with any other person to levy war against the Queen and Head of State, with any intent or purpose referred to in Paragraph (e); or

(g)      instigates a foreigner to make an armed invasion of any part of Her Majesty’s dominions; or

(h)      assists by any means whatever a public enemy at war with the Queen and Head of State; or

(i)       violates, whether with her consent or not, a Queen Consort, or the wife of the eldest son and heir-apparent for the time being of the successor (being a male) of the Queen and Head of State,

is guilty of the crime of treason.

Penalty: Death.” (Emphasis added.)

The above section specifically says that the crime defined therein is “the crime of treason”.

Section 40 of the Criminal Code emphasises too that the offence defined by s 39 is not treason. It says: “(1) A person cannot be tried for treason or for an offence against Section 38 or 39 ...”

The legislative intention is clear and that is that the offence defined in s 39 of the Criminal Code is not treason.

As a result of the ruling upholding Mr Gavara-Nanu’s submission the applicant’s bail application proceeded on the basis that he was entitled, as a matter of constitutional law, to be granted bail unless the State satisfied the court that it was in the interests of justice not to grant him bail.

Three reasons were advanced by the State in its opposition to the bail application:

(1)      National security.

(2)      The likelihood of the applicant interfering with State witnesses (this was based on s 9(1)(f) of the Bail Act).

(3)      The alleged act constituting the offence consists of having or possessing a firearm (this was based on s 9(1)(c)(iii) of the Bail Act).

Allied to the National security risk is the serious nature of the offence; however this aspect was not argued by counsel.

Before we proceed further we must state that in a bail application a bail authority is not bound by technical rules of evidence as was submitted by Mr Ume and this law is contained in s 9(2) of the Bail Act (Ch No 340): “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.”

On the strength of this provision, four statements from senior police officers, a statement from a senior officer at the Bomana Corrective Institution, newspaper reports and the Prime Minister’s address to the Parliament and the nation were put before the Court.

Also it was agreed by counsel that the transcript of evidence given in the bail application before the National Court be accepted as part of the evidence before this Court. In the National Court, only the applicant and Assistant Commissioner of Police, Mr Mugugia, gave evidence. Mr Mugugia was called to verify the transcript of his evidence and was cross-examined by Mr Gavara-Nanu. Mr Taku from the Boroko Police Station (he holds the rank of Assistant Police Commissioner) also gave evidence with respect to the three grounds of the State’s objections to the bail being granted.

Contrary to the concern expressed by both Mr Mugugia and Mr Taku it is quite clear from the Prime Minister’s address to the Parliament and the Nation that the Government, after the alleged incident, did not consider that there was any further danger. And we quote from the Prime Minister’s address which we must point out was also made on television and reported in the media both in Papua New Guinea and overseas. The statement is dated 14 March 1990 and we quote only parts relevant to the bail application:

“The Police Commissioner ... obviously heavily under the influence of liquor, sought to direct police and encourage members of the Defence Force to take action contrary to the Constitution, and contrary to the Oath of Disciplined personnel.

... I am totally satisfied that there was no conspiracy in relation to his actions, and that the act done and that he acted only, while heavily under the influence of liquor ...

Due to the loyalty and discipline of the soldiers, and prompt actions by the Commander of the PNG Defence Force, Brigadier General Lokinap, the Commissioner did not receive any support, assistance, or even encouragement from members of the Defence Force ...

While a number of mobile squad members appeared to have respondent to his call, it is apparent that many were unaware of the full impact of his actions ...

I am totally satisfied that all commissioned officers and all other members of the Police Force in Port Moresby remain totally loyal, and did not respond to his orders and his incitement ...

My departmental head, in his capacity as Chairman of the Security Advisory Committee, consulted with senior officers of the police force, and I thank all these officers for their prompt and loyal action in directing mobile squad members back to their barracks, and in setting lawful and proper leadership of the force.

Mr Speaker, there were no incidents of harrassment, or of any other nature. No lives were in immediate danger.

Whilst the position was tense the total loyalty of the Commander and members of the Defence Force, and the loyalty and commitment of the Deputy Commissioner and all senior officers of the police force effectively prevented a dangerous situation developing ...

I want to assure the Parliament and the nation that the situation is now totally under control. There is no immediate cause for alarm, panic or fear.

The government is totally in control of the situation, it has the loyalty, and support of disciplined forces, the public service at this point in time [sic].”

This statement from the Prime Minister is supported by statements on oath which are before this Court made by senior officers of the Police Force, for instance, Inspector Matthew Sapan who is in charge of the McGregor Barracks Mobile Unit says in his statement as follows: “I did not take the Commissioner’s orders seriously when he said, ‘we are going to move in and take over. I’ll be your next Prime Minister’.”

Inspector Neville Abaijah, also of McGregor Barracks, in his statement says that after the situation was explained to them Mr Baki (who is in charge of all mobile squads in the country) issued orders that the mobile squad members return to their barracks and he says that they did so after patrolling the town and returned to the barracks and then went off to their residences.

Assistant Commissioner Phillip Taku in his statement gives evidence that he ordered all men at Boroko Police Station who were off-duty, that, if they obeyed the Commissioner, they would be involved in an illegal act and he told them to remain calm and only to take instructions from him and he then ordered all off-duty men to return to their barracks and others to continue their normal duties which they all did.

Chief Inspector Benedict Simanjon of the mobile unit at McGregor Barracks says in his statement that the members of the mobile squad did not follow the applicant’s directions and also he says they did not follow the alleged orders that he gave.

From all the above evidence it is quite clear that the State has not shown that now this applicant poses any threat to national security. In fact there is evidence too that, since the alleged incident, the applicant has stayed calm and in fact has made public statements encouraging the Police Force to stay loyal to the government of the day. There has not been produced any evidence on which the Court can have a real apprehension that he is a threat to the Government or to the Constitution of this country, in fact, as we have already shown, the Prime Minister’s assurances backed up by statements from police officers quite clearly are to the contrary.

The State also has not shown that if granted bail, the applicant is likely to interfere with State witnesses. In fact not a scintilla of evidence has been adduced by the State to support this objection. It must be stated again that the likelihood of interference with witnesses has to be more than just a possibility. In the case of Kysely v The State [1980] PNGLR 36, Wilson J said as follows (at 38-39):

“The question remains as to whether, once attempted interference with a State witness having occurred, I can be satisfied, to the extent required by s 9, that the applicant is likely to interfere with State witnesses in the future. I accept Mr Challinger’s submission that, because one such interference or attempted interference has occurred, it does not necessarily follow that interference in the future will occur.

Both Mr Challinger and Mr Maino relied upon passages in the judgment of Sholl J in R v Callander (No 2) [1957] VicRp 71; [1957] VR 535. I am of the opinion that Sholl J overstated the position when he equated, as I think he did, ‘likelihood’ with ‘probability’. His Honour said (at 536):

‘Indeed, if there were evidence only that Crown witnesses had been interfered with already, and that evidence did not warrant the inference that there might be further interference, it might well be that the application to revoke bail would be refused, though obviously evidence that interference has already taken place may afford strong grounds for presuming the possibility of further interference.’

Except to the extent to which Sholl J equated ‘likelihood’ with ‘probability’, I am persuaded by what that learned and respected judge said in the passage quoted above.

I prefer the reasoning of Wallace P in his judgment in Livingstone-Thomas v Associated Newspapers Ltd (1969) 90 WN (Pt 1) (NSW) 223 at 229 where the learned president said:

‘The word “likely” can scarcely mean “more likely than not” in s 5, if only for the reason that the section does not say so. Similarly such significances as “probability” and “very likely” are to be rejected. I think the legislature has meant “likely” in the sense of a tendency or real possibility.’

I hold that the word ‘likely’ in the phrase ‘likely to interfere with witnesses’ in s 9(1)(f) means likely in the sense of a tendency or real possibility. It does not mean ‘more likely than not’, ‘probably’, or ‘very likely’.”

In this case there is no evidence of any attempted inference with any State witnesses. The State merely says that there is probability of interference with witnesses and this is not what the law means. Therefore the State has failed to support its objection under s 9(1)(f) of the Bail Act with any evidence showing that there is a tendency or real possibility of the applicant interferring with State witnesses.

As to the third objection, the State says bail should be refused on the grounds touched on in s 9(1)(c)(iii) of the Bail Act (Ch No 340) in that the applicant had, at a relevant period on the night of the incident at the Boroko Police Station, a submachine gun (SMG) in his hands, seated as he was in his police car.

Section 9(1)(c)(iii) is one of the considerations which received judicial scrutiny in Re Keating [1983] PNGLR 133. The Supreme 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.

The evidence in relation to the existence of the SMG, is uncontroverted but the appellant says that he had an honest explanation for its presence in the vehicle at that time. We do not have to make findings in these proceedings as to the reasonableness or otherwise of the applicant’s assertions. The State puts such evidence on the basis of its relevance to that aspect of the charge which goes to the use of “force”.

But the question in this bail application is whether the applicant has shown in all the circumstances that his continued detention is not justified (see judgment of Kidu CJ in Re Kou Dua [1984] PNGLR 22 at 23).

The circumstances material to our considerations here include the State’s failure to satisfy us of a properly entertained fear of a repetition of the alleged offence if this man were left at large. The evidence is in the applicant’s favour as has already been shown. Further, despite assertions of a risk, Superintendent Mugugia has failed to particularise any acts of the applicant, acts which in any way could support such apprehension. A further consideration is the fact that the applicant was at large from the incident on the night of 14 April 1990 until 2 May, when he was arrested and charged. So that for some 18 days, he has been free to associate with whomsoever he pleased. Notwithstanding, the State has not been able to elicit any evidence to support that fear or show clearly a continuing risk.

Further, the applicant is no longer in office as either the Controller of the State of Emergency or the Commissioner of Police. He has no expressed power to “order or direct” in these capacities as a police officer any more. He has no lawful access to arms. There is no evidence of a cadre (personally loyal to this applicant) whose covert or overt acts since the date of this incident could be seen as subversive and associated in some way with this applicant.

We also take into consideration that, at Boroko, while it may be said by the State that the applicant was by his course of conduct evincing an intention to do certain things with the weapon, the presence of the weapon by itself is not the sole determinant factor on this bail application. The onus of satisfying this Court that the continued detention of the applicant is not justified rests with the applicant. We consider that he has discharged the onus.

For those other reasons and having regard to these aspects, we are satisfied the appellant has shown good cause for his release notwithstanding the existence of the weapon in terms of s 9(1)(c)(iii).

We grant bail on the following conditions:

(1)      Cash bail of K2,500.

(2)      Surrender of his passport to the Registrar of the Supreme Court.

(3)      Not to enter any licensed premises whether hotels or clubs during terms of bail.

(4)      Not to enter any Defence Force or Police Force Barracks or clubs.

(5)      Not to talk to any member of the police force except those members who might be witnesses for the defence and then only in the presence of his lawyer.

(6)      Not to discuss any matters relating to the offence with which he has been charged with any witnesses for the State.

KAPI DCJ: Mr Tohian, the former Police Commissioner, has been charged with an offence under s 39(1)(b) of the Criminal Code (Ch No 262). He was arrested and detained and on 2 May 1990. An application for bail was made before the National Court. On 3 May, the National Court gave its ruling and refused bail.

This application has been made in the Supreme Court pursuant to s 13(2) of the Bail Act (Ch No 340). This matter comes to the Court by way of a fresh application.

At the outset of the submissions the question of the applicability of s 42(6) of the Constitution was raised. It is in the following terms:

“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.”

Counsel for the applicant submitted that s 42(6) of the Constitution is applicable to the applicant as a s 39 offence is not defined as treason. Counsel for the State sought to argue that a s 39 offence comes within the meaning of treason. We gave an oral ruling that the offence of treason as defined by the Criminal Code does not include the offence under s 39. We indicated that we would publish our reasons. This we now do.

The issue is simple. Is the offence with which the applicant is charged “treason as defined by an Act of Parliament”?

The offence of treason is defined by s 37. The essence of treason is that a person actually commits any of the acts set out under s 37(a) to (i). This offence is expressly prescribed “... the crime of treason”. The essence of the offence under s 39 of the Criminal Code is intention to commit any of the acts under s 39(a) to (c). The offence is not expressly prescribed as treason but is simply prescribed: “is guilty of a crime”. Section 39(1)(b) of the Criminal Code would appear to be similar to s 37(e) of the Code. However, as I have pointed out, s 37(e) deals with the commission of the crime of levying war against the Queen and Head of State, whereas s 39(1)(b) deals with an intention to levy war. I therefore conclude that the s 39 offence is not defined as treason. Section 42(6) is clearly applicable to the applicant.

It is now well established by authorities that bail is a matter of fundamental right under s 42(6) of the Constitution and must be granted readily, unless the court is satisfied on reasonable grounds of one or more of the matters set out under s 9 of the Bail Act, or unless the “interests of justice otherwise require” as set out under s 42(6) of the Constitution: Kysely v The State [1980] PNGLR 36, Re Diawo [1980] PNGLR 148. It would appear that the matters set out under s 9 of the Bail Act were intended to give effect to the words “unless the interests of justice otherwise require” in s 42(6) of the Constitution. This intention is clear from the words of s 3 of the Bail Act: see Re Keating [1983] PNGLR 133. However, I agree that where s 42(6) is applicable, as in this case, the words “unless the interests of justice otherwise require” cannot be confined to matters set out under s 9 of the Bail Act.

Counsel for the State has objected to the grant of bail and has given three grounds upon which the application for bail should be refused. They are first, that the applicant, if granted bail, is likely to repeat the offence. It is alleged that he is a risk to the security of this nation. Secondly, that if the applicant is granted bail he is likely to interfere with witnesses or the person who instituted these proceedings: s 9(1)(f) of the Bail Act. Thirdly, the alleged act or acts constituting the offence consist of having in his possession a firearm: s 9(1)(c)(iii) of the Bail Act.

When the application for bail came before the National Court, the then Assistant Commissioner of Police, Mr Mugugia gave evidence on behalf of the State and Mr Tohian gave evidence on his own behalf. In the proceedings before this Court, both counsel adopted the transcript of evidence in the National Court of Justice as evidence before us. Mr Mugugia was asked further questions but in the main repeated the evidence that was given at the National Court. Mr Tohian relied on the evidence he gave before the National Court and was not called to either give further evidence or be further questioned by the State. By consent, statements of Inspector Matthew Sapan, Chief Inspector Siman Jon, Acting Assistant Commissioner, Phillip Taku, Inspector Neville Abaijah, an affidavit of the Prime Minister deposing to what happened on the night of 14 March 1990 and a statement of the Prime Minister to the Parliament which was made on 14 March 1990 were admitted.

DANGER TO THE NATIONAL SECURITY — LIKELY TO REPEAT THE OFFENCE

This objection has been raised in this way. It is alleged that the offence committed under s 39 threatens the security of the nation in that, if the applicant is released on bail, he is likely to commit the same offence. Counsel for the State submitted that this objection is raised outside the matters set out under s 9 of the Bail Act. He has submitted that this objection comes under the words “unless the interests of justice otherwise require”. I have already expressed the view that there may be other matters outside the scope of s 9 of the Bail Act which the Court may consider to be matters which come within the meaning of “interests of justice” upon which the court may refuse bail. However, this objection is slightly coloured by the sue of the words national security. In essence the objection raised by the State comes within the terms of s 9(1)(d) of the Bail Act. It is in the following terms: “that the person is likely to commit an indictable offence if he is not in custody.”

There is simply no evidence before this Court which might suggest that the applicant will commit this offence again. The evidence which has been presented before this Court suggests that this was not a planned plot by the applicant. This is evident from the fact that when the alleged directions were given by the applicant, there was confusion amongst the policemen and disagreement as to whether or not to carry out the alleged directions. There is no other evidence to suggest any conspiracy with any other officers of both disciplined forces. It cannot simply be inferred from the nature of the alleged offence itself that the applicant is likely to commit the offence or any other offence again. The evidence which has been made available to the Court gives assurance to the nation that everything is under control. The statement which is most damaging to the State objection is the statement to the Parliament by the Prime Minister, the Right Honourable Rabbie Namaliu on 14 March 1990. It is important to quote parts of this statement. In referring to the actions of the applicant the Prime Minister said:

“It is clear that his intention was to remove by force the elected government of Papua New Guinea.

I am totally satisfied that there was no conspiracy in relation to his actions, and that he acted alone, while heavily under the influence of liquor.

The Commissioner attempted to incite defence force personnel at both Murray Barracks and Taurama Barracks.

Due to the loyalty and discipline of the soldiers, and prompt action by the commander of the PNG Defence Force, Brigadier-General Lokinap, the Commissioner did not receive any support, assistance, or even encouragement from members of the Defence Force ...

I am totally satisfied that all commissioned officers and all other members of the police force in Port Moresby remained totally loyal and did not respond to his orders and his incitement ...

The nation can gain comfort and strength from the sure and certain knowledge that despite provocation, the disciplined forces remained loyal in accordance with the highest traditions and standards of the security forces ...

I want to assure the Parliament and the nation that the situation is now totally under control. There is no immediate cause for alarm, panic or fear.

The government is totally in control of the situation, and it has the loyalty, and support of the disciplined forces, the public service at this important time.”

I am therefore not satisfied that the applicant would commit this or any other indictable offence if granted bail.

LIKELY TO INTERFERE WITH WITNESSES — S 9(1)(F) OF THE BAIL ACT

Although the applicant committed this offence while he was the Commissioner of Police and therefore had the loyalty of all the policemen under him, the State alleges that, even though he is no longer the Commissioner at this point in time, he is likely to interfere with any witnesses who were under his command as Police Commissioner.

There is no evidence before this Court that Mr Tohian did or made any attempt to interfere or influence any witness. The counsel for the State simply asks this Court to draw an inference from the fact that the applicant was the Commissioner of Police and all the policemen who may be called as witnesses were under his command, that it is likely that he would interfere with these witnesses. A similar proposition was put in an analogous situation in the case of Re Diawo [1980] PNGLR 148. In this case the applicant was a kiap who was charged with misappropriation and it was argued that because he had control of officers working under him that if he was allowed on bail he was likely to interfere with those witnesses. The court rejected this argument. There must be some evidence to suggest that the applicant is likely to interfere with witnesses as was the case in Re Keating. As there is no evidence, I am not satisfied that the applicant is likely to interfere with any witnesses.

THAT THE ALLEGED ACT CONSTITUTING THE OFFENCE CONSISTS OF HAVING OR POSSESSING A FIREARM — S 9(1)(C)(III) OF THE BAIL ACT

The relevant provision under consideration is as follows:

“(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)      ...

(b)      ...

(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)       ...

(ii)      ...

(iii)     having or possessing a firearm, imitation firearm, other offensive weapon or explosive ...”

This provision refers to an act or acts which constitute the offence. The act referred to does not have to be an essential element of the offence. But the act must form part of the action of the person in constituting the offence. The act in this case consists of possession of a firearm which forms part of the alleged act of the applicant in committing the alleged offence. It is not disputed in this case that the applicant had in his possession a submachine gun capable of firing 35 bullets in a round.

Some of the considerations set out under s 9(1) of the Bail Act are matters as to which the Court has to be satisfied on reasonable grounds. For example, under s 9(1)(b) the State must prove to the satisfaction of the Court on reasonable grounds that the offence was committed while on bail. However, there are other matters such as s 9(1)(c) of the Bail Act where the State simply relies on an allegation that the alleged act constitutes the offence. The alleged act in the present case is having or possessing a firearm. It is not necessary for the purposes of the bail application to determine whether or not this allegation is true or not, or whether the applicant had other lawful reasons for possessing the firearm. These considerations are relevant when the applicant is tried. The allegation that the applicant had a firearm in his possession in uncontroverted. I am therefore satisfied on reasonable grounds that the State has established the consideration set out under s 9(1)(c)(iii) of the Bail Act.

Having been satisfied of this, shall I exercise my discretion to refuse bail? The manner in which the Court should exercise its discretion in these circumstances was considered in the case of Re Keating. The majority opinion on this point is to be found in the judgment of Andrew J, and the Chief Justice agreed with him on this. In essence, the majority view is that when the Court is satisfied with any of the matters set out under s 9(1) of the Bail Act, the Court shall not refuse bail but may in the exercise of its discretion grant bail. The following passage in Re Keating summarises the majority view (at 140):

“In my judgment the use of the word ‘shall’ in s 9(1) of the Act shows that it can be seen that the bail authority must refuse bail if one or more of the conditions are proved unless the applicant shows cause why his detention in custody is not justified. Such an exercise is always discretionary.”

This passage contains the correct statement of the law. However, the part from which I dissented is the following sentence: “... unless the applicant shows cause why his detention in custody is not justified.” That statement shifts the onus to the applicant to justify bail. In my view that is inconsistent with the premise that remains throughout the application that “prima facie, one is entitled to bail. That is the intent of the Constitution and of the Bail Act”: see Re Keating, per Andrew J, at 140; Kysely v The State and Re Diawo. The matters set out under s 9(1) of the Bail Act and other matters which may come under the words “unless the interests of justice otherwise require” under s 42(6) of the Constitution are matters for refusing bail and not for granting bail: see Miles J in Re Diawo. In my view they do not shift the onus to the applicant. The heavy presumption in favour of bail remains throughout and the State carries the burden of justifying detention during the trial: see Kearney Dep CJ in Re Diawo, at 152. It is true that the question on bail is a matter of discretion of the Court and it may refuse or grant bail. In exercising this discretion, the dictation to the Court to grant bail readily is clear from the terms of s 42(6) of the Constitution and the terms of s 9 of the Bail Act. The applicant does not have to justify or prove anything in order to get bail. The exercise of discretion in favour of an applicant comes by virtue of the provisions of the Constitution and the Bail Act. The discretion to grant bail by virtue of these provisions can only be refused on the considerations set out under s 9(1) of the Bail Act and any other matters which may come within the words “unless the justice of the case requires” under s 42(6) of the Constitution. The State need only to prove any of the matters under s 9(1) of the Bail Act or any other matter which comes within the words “unless the justice of the case requires” for the Court to refuse bail. In my view the State need not prove anything further to satisfy the Court or to convince the Court to exercise the discretion against granting bail.

However, it is clear that the majority opinion in Re Keating is the law, and as the majority in this case also follows, then I will apply the majority opinion.

Having been satisfied of the possession of the firearm, the onus in on the applicant to show why the continual detention is not justified. In other words, the applicant has to justify why bail should be granted despite the fact that he had in his possession a firearm. It seems to me that the firearm in his possession was one of the most lethal weapons to be found in this country. It was a submachine gun that can fire 35 bullets in a round. It is capable of firing in quick succession and the consequences are very obvious. This is hardly a consideration in favour of the applicant. The only reason I can think of on the facts of this case is that the submachine gun was not loaded at the time it was sighted at the Boroko Police Station and he was nowhere near the Queen or the Head of State or the members of Parliament. That is to say, on the facts of this case, the persons referred to above were not in imminent danger. For this reason I would not exercise my discretion in favour of the State in refusing bail.

Bail granted subject to conditions

Lawyers for the applicant: Les Gavara-Nanu & Co.

Lawyer for the State: State Solicitor.