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Haiveta v The State [2000] PNGLR 260 (13 November 2000)

[2000] PNGLR 260

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

STEVEN HAIVETA

V

THE STATE

WAIGANI: KANDAKASI J
13 November 2000

Facts

The applicant allegedly in the company of four others, held up the duty manager and receptionist at the Ela Beach Hotel and stole cash and cheques totaling K12,668.68. He was charged under s 386 of the Criminal Code Act. Whilst on remand at Bomana CIS awaiting completion of committal proceedings against him he applied for bail pursuant to ss 6 and 7 of the Bail Act Ch 340, and s 42 of the Constitution.

Held

1. Bail is a constitutional right under s 42(6) of the Constitution. Presumption of innocence is an important presumption in favour of an accused person at all times until proven guilty.
   
2. Bail Act provides inter alia, the circumstances in which bail can not be granted rather than the circumstances in which bail can be granted: Re Herman Kagl Diawo [1980] PNGLR 148.
   
3. Existence of any factors under s 9 of the Bail Act does not automatically operate as a bar to the grant of bail. The Court or the bail authority does have the discretion to decide whether or not to grant bail, having regard to the particular circumstances of each case "in the interest of justice": Re Bail Application, Fred Keating v The State [1983] PNGLR 133.
   
4. The State has the onus to establish the existence of any of the factors under s 9 of the Bail Act: Re Samir Taleb Abdullah Jaber Anabtawi was followed.
   
5. The State offered no evidence to form the foundation to refuse bail.
   
6. The applicant has been charged with a serious offence and the amount allegedly stolen has not yet been recovered. Strict terms and conditions for bail were imposed.
   

Papua New Guinea cases cited

Re Bail Application; Fred Keating v The State [1983] PNGLR 133.
Re Herman Kagl Diawo [1980] PNGLR 148.
Re Samir Taleb Abdullah Jaber Anabtawi [1980] PNGLR 195.

Counsels

D Kari, for the applicant.
A Wale, for the State.

13 November 2000

KANDAKASI J. This is an application for bail pursuant to ss 6 and 7 of the Bail Act (Ch 340) and s 42 of the Constitution. The applicant has filed three affidavits in support of his application. They are the affidavits of the applicant himself, his father Mr. Haiveta Koavea and Gorethy Haiveta, the applicant's wife. The latter two are the possible guarantors for the applicant if bail is to be granted.

The applicant is currently on remand at Bomana CIS pending completion of committal proceedings against him for a charge under s 386 of the Criminal Code Act (Ch 262) for allegedly being in the company of four others and holding up the Duty Manager and receptionist at the Ela Beach Hotel. That was allegedly on or about the 26th of July 2000. It is further alleged that cash and cheques totalling K12,668.68 was stolen which are yet to be recovered. The applicant denies the charge against him and argues through his counsel that, he will succeed in his defence. He has no prior conviction.

Bail is a constitutional right and or entitlement under s 42(6) of the Constitution, which is available "at all times" to use the words of that section. This right or entitlement accords well with the presumption of innocence, which is also recognised and provided for under s 37(4) of the Constitution.

The Bail Act therefore, correctly provides inter alia, the circumstances in which bail cannot be granted rather then the circumstances in which bail can be granted: See Re Herman Kagl Diawo [1980] PNGLR 148.

Section 9 of the Bail Act sets out the criteria for refusing bail. The Supreme Court in Re Bail Application, Fred Keating v The State [1983] PNGLR 133, held that the existence of any of the factors under s 9 does not automatically operate as a bar to the grant of bail. Instead, the court or the bail authority does have the discretion to decide whether or not to grant bail, "in the interest of justice" having regard to the particular circumstances of each case. The court also held that the bail authority might have regard to other factors in addition to the criteria set out under s 9 to determine what is "in the interest of justice".

In Re Samir Taleb Abdullah Jaber Anabtawi [1980] PNGLR 195, it was held that the State has the onus to establish the existence of any of the factors under s 9 of the Bail Act. That was in the context of sub-section (1)(a). In my view, that equally applies to the other factors.

In the present case, Mr. Wale for the State raised paragraphs (a), (c), and (g) as the relevant factors. He argued that those factors exist and that the Court should not grant bail. In line with, Re Samir Taleb Abdullah Jaber Anabtawi, it was incumbent on the State to provide some evidence to show that those factors do exist, especially in my view factor (a). The State offered no evidence. The court will, however, accept that factors (c) and (g) of s 9(1) of the Bail Act exist. This is because, first, a charge has been laid against the applicant under s 386 of the Criminal Code Act which involved the use of firearms; and secondly because, there is no contest that the amount of money stolen has not be recovered.

However, as was held in Re Bail Application, Fred Keating v The State (supra), the existence of these factors do not operate as a bar to a grant of bail. The Court still has the discretion to decide whether or not to grant bail despite the existence of such factors. I note that bails in similar situations have been granted. One such case is CR 857/00, The State v Abel Airi, a matter now pending for sentencing. The State argues in the alternative that, if the Court decides to grant bail it must be on strict terms. He proposes the following terms be imposed:

1. K500.00;
   
2. K500.00 surety;
   
3. Report to the Waigani National Court every Monday;
   
4. The applicant appears in person on the day of his trial.
   

I consider the presumption of innocence until proven guilty is an important presumption in favour of an accused person at all times. That is why we have the provisions of s 42(6) of the Constitution coupled with the provisions of the Bail Act. In my view they go hand in hand, because if that was not the case, there would be no right to bail under s 42(6) of the Constitution and the Bail Act.

The State has not offered any evidence to show that if the applicant is granted bail he will not turn up in court for his trial. Just because a charge has been laid against the applicant, it does not automatically follow that he should be held in custody. Instead, the law entitles him to bail, unless the State is able to show by appropriate evidence that bail should not be granted. As was already mentioned, the State has not assisted this court with any evidence to form the foundation to refuse bail. It may be a long time before the committal process is completed and the applicant comes to know whether or not he will be committed. His father and his wife are prepared to act as guarantors and pay up to K500.00 in surety. The applicant's father is employed. There is no evidence to suggest that, the application will interfere with witnesses or will not attend his committal hearings. Having regard to these factors and all the factors attending this case, bail should be granted.

The decision to grant bail has not been lightly arrived at. The court has carefully considered the fact that the applicant has been charge with a serious offence and the amount allegedly stolen has not yet been recovered. The following terms will therefore, be imposed as terms and or conditions for bail which must be strictly observed and complied with by the applicant:

1. Before the applicant is released from custody:
   

(a) a bail fee of K500.00 be paid;

(b) A surety of K500.00 be paid;

(c) Mr Haiveta Koavea and Gorethy Haiveta forthwith sign and deliver their respective guarantees and or undertaking;

2. The applicant shall not leave the National Capital District without leave of this Court on application;
   
3. The applicant shall only reside at Gerehu Stage 1, Section 264, Allotment 30;
   
4. The applicant shall faithfully and personally attend at each and every committal hearing or mention;
   
5. The applicant shall attend a Christian Church of his choice once every week, Saturday or Sunday as the case may be;
   
6. The applicant shall not be in the company of any male youth except strictly for any bona fide church program;
   
7. The applicant shall report to the National Court every Wednesdays.
   

Lawyer for the applicant: Public Solicitor.
Lawyer for the State: Public Prosecutor.