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Hayara v Independent State of Papua New Guinea [2008] PGNC 138; N3488 (15 September 2008)

N3488

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 345 OF 2008

IN THE MATTER OF THE BAIL ACT CHAPTER 340

AND

IN THE MATTER OF SECTION 42(6) OF THE CONSTITUTION

BETWEEN

KUKU HAYARA
Applicant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Mount Hagen: Makail, AJ
2008: 15 September
: 9 September

CRIMINAL LAW - Bail - Applicant charged with armed robbery & demand for compensation - Criminal Code - Sections 386 & 390A - Whether exceptional circumstances shown - Innocence of applicant not an exceptional circumstances - Prejudice to family welfare not an exceptional circumstances - Loss of businesses not an exceptional circumstances - Poor or deteriorating health condition of applicant considered exceptional circumstances - No medical evidence to prove applicant’s assertion of being sick or deteriorating health condition - Failure to show continued detention in custody unjustified - No surety and cash bail proposed - Application refused - Constitution - Section 42(6) & 37(4) - Bail Act - Sections 6 & 9.

Cases cited:

Re Fred Keating -v- The State [1983] PNGLR 133
Re Kou Kua [1984] PNGLR 22
Bernard Juali -v- The State (1997) N1887
Michael Aia & Michael Maneba -v- The State (2001) N2124
Steve Lester -v- The State (2001) N2044
Joe Puksy Purari -v- The State (2001) N2077
Briggs Negapigi -v- The State: MP No 493 of 2007 (Unnumbered & Unreported Judgment of 28 February 2008)
Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27 February 2008)
Philip Maru & Arua Oa -v- The State

Counsel:

Mr D. Gonol, for the Applicant
Ms P.Yoka, for the Respondent

RULING ON APPLICATION FOR BAIL

15 September, 2008

1. MAKAIL AJ: The Applicant has been charged with one count of armed robbery contrary to section 386 of the Criminal Code and one count of demand for compensation contrary to section 390A of the Criminal Code after being arrested and detained at the Mt Hagen Police Station by police on 13 August 2008.

2. Pending the committal proceedings to take place, he applies for bail pursuant to section 42(6) of the Constitution (the Constitution) and section 4 of the Bail Act (the Bail Act) based on his application filed on 27 August 2008. I should also mention here that initially, the Applicant filed a human rights application pursuant to sections 42(6) and 155(4) of the Constitution on the basis that he was unlawfully detained in police custody without being charged by the police but has subsequently abandoned the application after he was formally charged with these two offences on or around 27 August 2008.

3. From the Summary of Facts presented by the State, it alleges that on 14 May 2008 between 1400 hours and 1500 hours the Applicant with a group of village people numbering about 30 set up a road block at Wabia along the main Highlands Highway with big stones and logs. The people were armed with bush knives and axes.

4. The State further alleges that when a motor vehicle, a Toyota Land cruiser bearing registration number CAO-631 approached the road block, the people stopped it and removed the driver and passengers. They then impounded it. The State says that the motor vehicle belongs to a company contracted to Oil Search (PNG) Limited called Gigira Development Corporation Limited.

5. The State makes a serious allegation against the Applicant in that he was amongst the group of men at the road block and was very vocal about Oil Search being responsible for the loss suffered by him and his people where the police carried out an eviction exercise at their village in 2007 allegedly at the direction or request of Oil Search. During that eviction exercise, the Nipa people held up part of the convoy of vehicles and captured a number of firearms and ammunitions and held them as hostages. The Nipas also robbed his people off their properties during that incident.

6. Further, the State alleges that the Applicant demanded that the Nipa issue be addressed and gave a condition that the motor vehicle would be released to the owner if Oil Search compensate him and his people.

7. Finally, the State alleges that he and one of his accomplices by the name of Yukai Mandalo wrote a letter to Oil Search and demanded Oil Search to pay compensation for a number of property and items that were lost during an earlier hold up in Nipa. He left for Port Moresby and was not located until earlier August when he was apprehended in Port Moresby and flown up to Mt Hagen where he was detained at Mt Hagen Police Station.

8. The Applicant vigorously denies these two charges and says that he did not commit these crimes. He says that he arrived at the road block after the motor vehicle was confiscated and taken away by his people. His presence at the road block that time was to resolve the dispute between his people and Oil Search. And so, he says that he was mistakenly accused of these two offences. When he was apprehended in Port Moresby, he says that he was on business trip.

APPLICANT’S SUBMISSIONS

9. The Applicant relies on the following Affidavits:

1. Affidavit of Kuku Hayara sworn on 21 August 2008 and filed on 26 August 2008;

2. Affidavit of Danny Gonol sworn on 21 August 2008 and filed on 26 August 2008;

3. Additional Affidavit of Danny Gonol sworn and filed on 27 August 2008;

4. Affidavit of Guarantor Obe Peyabe sworn and filed on 8 September 2008;

5. Affidavit of Guarantor Robert Gipe sworn and filed on 8 September 2008;

6. Affidavit of Guarantor James Tayu sworn and filed on 8 September 2008;

7. Affidavit of Guarantor Agipe Komai sworn and filed on 8 September 2008; and

8. Affidavit in Support of Kuku Hayara sworn and filed on 8 September 2008.

9. Mr Gonol submits that the Applicant should be granted bail because first the welfare of his family is at great risk. He is married to 5 wives and has 12 children. Four of the children are attending school and if he is detained, no one will look after them.

10. Secondly, he submits that he did not commit these offences. As a community leader, he fronted up at the road block to try and resolve the dispute between his people and Oil Search but was mistakenly identified by Oil Search staff as the instigator of the dispute. He further submits that, in any case the motor vehicle that was impounded by his people was returned to Oil Search.

11. Thirdly, he is a businessman. He owns trade stores, PMV buses and liquor shops in his village and in Tari. If he remains in custody, there is no one to manage these businesses for him. There is the risk of loosing all these businesses.

12. Next, he submits that the Applicant is suffering in health. He has been feeling sick and not eating well. As a result, he has lost a lot of weight and also lost his appetite.

13. Finally, he submits that bail should be granted to the Applicant because he has respectable community leaders and individuals within the Tari community here in Mt Hagen who has volunteered to be his guarantors. They are Obe Peyabe, Robert Gipe, James Tayu and Agipe Komai. Mr Gonol submits that these individuals have been informed of their obligations as guarantors and the consequences if they fail to comply with their promises.

14. For these reasons, he submits bail should be granted to the Applicant. When I asked counsel to draw my attention to any case authorities to support his proposition that prejudice to the family welfare of the Applicant is a ground for the grant of bail, he was unable to cite any although he says that it has been the practice of this Court to grant bail in the past based on family welfare reasons.

15. In the event that the Court grants bail, he says that the Applicant is prepared to submit to any strict conditions of bail that the Court may impose on him.

RESPONDENT’S SUBMISSIONS

16. The State opposes the application for bail. Ms Yoka of counsel for the State acknowledges that bail is readily available to an accused charged with an offence(s) but says that where the considerations set out in section 9(1) of the Bail Act are present, the Applicant is disqualified unless it can be shown that the accused’s continued detention in custody is unjustified. In this case, he says that there are present considerations under section 9(1) of the Bail Act, thus the Applicant is disqualified. She relies on the Affidavit of Jimmy Paku sworn on 4 September 2008 and the Summary of Facts to oppose the application.

17. She advances a number of grounds. First, she relies on ground 9(1)(a) of the Bail Act and submits that there is evidence in paragraphs 3, 11 and 12 of the Affidavit of Jimmy Paku that the Applicant is unlikely to appear before the Court if granted bail. This is because first, he hails from a remote village in Tari of the Southern Highlands Province, thus accessibility to locate him in the event that he abscond bail is very slim.

18. Secondly, there is no proper or fixed address of the Applicant so that he can be located and brought before the Court in the event that he abscond bail. For example, as the Applicant has been arrested and charged in Mt Hagen, he does not have a proper or fixed address in Mt Hagen.

19. To emphasis the point, she says that it took 3 months before the police were able to locate and arrest the Applicant.

20. The next ground of the State’s objection to the application for bail is that one of the offence the Applicant is alleged to have committed consists of serious assault, threat of violence to another person and the use of offensive weapons like firearms under section 9(1)(c)(i)-(iii) of the Bail Act. That is, the Applicant has been charged with armed robbery contrary to section 386 of the Criminal Code and there is present the elements of serious assault, threat of violence and use of offensive weapons.

21. She submits that there is evidence before the Court by way of paragraph 7 of the Affidavit of Jimmy Paku and the Summary of Facts which describes the circumstances giving raise to the alleged crime of armed robbery in the following manner; The Applicant and his tribesmen numbering about 30 set up a road block at Wabia along the main Highlands Highway with big stones and logs. They were armed with firearms, bush knives and axes.

22. When a motor vehicle, a Toyota Landcruiser bearing registration number CAO-631 approached the road block, the people stopped it and removed the driver and passengers. They then impounded it. The State says that the motor vehicle belongs to a company contracted to Oil Search (PNG) Limited called Gigira Development Corporation Limited.

23. The Applicant was amongst the group of men at the road block and was very vocal about Oil Search being responsible for the loss suffered by him and his people where the police carried out an eviction exercise at Nipa in 2007 allegedly at the direction or request of Oil Search.

24. During that eviction exercise, the Nipa people held up part of the convoy of vehicles and captured a number of firearms and ammunitions and held them as hostages. The Nipas also robbed his people off their properties during that incident. Further, the State alleges that the Applicant gave a condition that the motor vehicle would be released to the owner if Oil Search pays compensation to him and his people.

25. Thus, there are present elements of serious assault, threat of violence and use of offensive weapons to the driver and passengers of the motor vehicle. She submits that based on the circumstances described, the Applicant is not a suitable candidate for bail under section 9(1)(c)(i)-(iii) of the Bail Act.

26. Thirdly, Ms Yoka submits that the Applicant is likely to commit further indictable offences. She refers to paragraphs 5, 6, 7 & 8 of the Affidavit of Jimmy Paku where he states that the Applicant is not just a leader but an influential leader amongst his people. This is where he will influence the remaining 14 men who are still at large and yet to be apprehended by the police to avoid the police. Further, there is a possibility that they will commit other offences using the firearms that were removed from the police in Nipa earlier on.

27. On that basis, she submits that the Applicant has failed to show that section 9(1)(d) of the Bail Act did not exist in his case. Therefore, the Applicant is disqualified for this reason.

28. The other submission by Ms Yoka centered around the consideration under section 9(1)(f) of the Bail Act. That is, whether the Applicant is likely to interfere with the State’s witnesses. Here, Ms Yoka submits that because the police investigations into the alleged offences are pending, there are reasonable grounds to believe that the Applicant will interfere with the witnesses of the State if granted bail.

29. For example, the police investigations into the road block are still continuing. There is also the investigation into the removal of firearms from the police and the use of these firearms. It would be too early to release the Applicant whilst these investigations are pending.

30. Again she submits that the Applicant has failed to discharge the onus set out in section 9(1)(f) of the Bail Act and bail should be refused on this basis.

31. The last submission by Ms Yoka is that alleged offence of armed robbery consists of property of substantial value which has not been recovered. She refers to paragraphs 7 of the Affidavit of Jimmy Paku as evidence that the motor vehicle which the Applicant and his people were alleged to have impounded has not been recovered.

32. Further from the Summary of Facts, the firearms that were removed from the police have not been recovered. For these reasons, she submits that the Applicant has failed to show that the consideration under section 9(1)(g) of the Bail Act did not exists.

THE LAW

33. According to section 4(1) of the Bail Act, only the Supreme and National Courts can entertain applications for bail involving serious offences like armed robbery. It is trite law that whilst the Court has a wide discretion to admit an applicant to bail even where one or more considerations under Section 9(1) of the Bail Act are present, the onus is on the Applicant to show why his detention in custody is unjustified: see Re Fred Keating -v- The State [1983] PNGLR 133 and Re Kou Dua [1984] PNGLR 22.

34. In Re Kou Dua’s case (supra), a case of wilful murder on page 23 of the Judgment, the late Chief Justice Sir Buri Kidu stated that: "In the Re Keating [1983] PNGLR 133, the Supreme Court last year held that in the case of a bail application of a person charged with wilful murder if any one or more of the criteria in s.9 of the Bail Act is or are shown to exist the onus is then on the applicant to show why he/she should be granted bail."

35. In Michael Aia & Michael Maneba -v- The State (2001) N2124, Davani J considered an application for bail where the Applicants were each charged with one count of Wilful Murder. In considering what may amount to exceptional circumstances in cases of Wilful Murder, Her Honour cited some examples on page 3 of the Judgment as follows:

1. prolong detention may prejudice the defence;

2. the welfare of the Applicant and family may be prejudiced;

3. the employment and business welfare of the Applicant may be prejudiced.

36. The Court’s power to either grant or refuse bail is discretionary even if one or more of the considerations under section 9(1) of the Bail Act are present. For the Court to do so there must exist exceptional circumstances to warrant the Court to exercise its discretion in favour of the Applicant.

REASONS FOR DECISION

Considerations under section 9(1) of the Bail Act

37. The considerations which a bail authority, in this case the National Court shall take into account when deciding whether or not to grant bail to an accused are set out under section 9(1) of the Bail Act which I need not labour to set out as they are straight forward. But I will refer to the relevant ones in the course of my ruling.

38. First, I apply the considerations under section 9(1)(a),(c)(i),(ii) & (iii) (e) and (f) of the Bail Act. I refer to the often quoted case of Re Fred Keating (supra) where it was held that the onus is on the State to show why bail should not be granted based on the considerations set out under section 9 of the Bail Act in particular under sub section 1(a),(c),(d),(f) and (g).

39. In relation to the consideration of whether or not the Applicant is unlikely to appear at his trial of granted bail, I accept the submissions of the State that it is unlikely that the Applicant will appear at the trial or even at the Criminal Call over if granted bail.

40. First, I must agree with the State that the Applicant hails from a remote village in Tari of the Southern Highlands Province, thus accessibility to locate him in the event that he abscond bail is very slim. It is far from Mendi if the trial is to take place there and very far if it is to take place in Mt Hagen.

41. Secondly, as he was arrested and charged in Mt Hagen, he does not have a proper or fixed address here in Mt Hagen so that he can be located and brought before the Court in the event that he abscond bail.

42. I accept that this is likely to happen because it took 3 months before the police were able to locate and arrest the Applicant and I note here that he was located in Port Moresby, a location that is far away from the scene of the alleged offences. Whether or not he was on business trip to Port Moresby is another matter but what is of concern to me and relevant is that it took the police a fair bit of time to locate and apprehend him.

43. The other reason for me to say that it is unlikely that the Applicant will appear in Court if granted bail is that I have just returned from Court Circuit to Tari in the month of August of this year and I must say that it was disappointing to note that none of the accused on bail appeared at the Criminal Call over. I had no choice but to issue warrant of arrests on the State’s applications for the immediate arrest and detention of those absconders.

44. To my mind, this is a telling factor as there are about 60 bench warrants issued by the Court against absconders for Tari alone. As the Applicant hails from Tari, this is not a good indication at all and if bail is granted to him, I wonder if he will not follow the foot steps of his brethrens.

45. Having said that and for those reasons given, I am satisfied that the State has made out this ground of objection to the application for bail under section 9(1)(a) of the Bail Act.

46. In relation to the consideration that the alleged act or any alleged acts constituting the offence of armed robbery for which the Applicant has been detained in custody consists of assault or threat of violence to another person or having or being in possession of firearm or other offensive weapon or explosive it appears to me that there is present the considerations under section 9(1)(c)(i),(ii) & (iii) of the Bail Act. Here, I note from the Summary of Facts that it is alleged that the Applicant and his people were alleged to have been armed with firearms, bush knives and axes at the road block at Wabia. Therefore, I find that this consideration does not favour the Applicant.

47. The next consideration is whether or not the Applicant is likely to commit further indictable offences. I accept the State’s submissions and the evidence of Sergeant Jimmy Paku that the Applicant is not just a leader but an influential leader amongst his people. This is where he will influence the remaining 14 men who are still at large and yet to be apprehended by the police to avoid the police.

48. Further, there is a possibility that they will commit other offences using the firearms that were removed from the police in Nipa earlier on. For these reasons, I find that the State has made out this ground of objection.

49. The other consideration is whether or not the Applicant is likely to interfere with the State’s witnesses. This is the consideration under section 9(1)(f)) of the Bail Act. I accept Ms Yoka’s submission that as the police investigation into the commission of the alleged offences are pending, there is reasonable ground to believe that the Applicant will interfere with the State’s witnesses if granted bail.

50. Further, I do not accept the Applicant’s submission that the police investigations have been completed because the police may lay further charges against the Applicant and his accomplices when further investigations uncover more evidence to support the charges. Hence, I find that the Applicant has failed to discharge the onus set out in section 9(1)(f) of the Bail Act and bail should be refused on this basis too.

51. The final consideration is whether the alleged offence of armed robbery consists of property of substantial value which has not been recovered. I accept the evidence of Sergeant Jimmy Paku that the motor vehicle which the Applicant and his people allegedly impounded has not been recovered.

52. On the other hand, I do not accept the submission of the Applicant that the motor vehicle has been returned to Oil Search because there is no evidence from the Applicant or other witnesses that show that it has been returned to Oil Search. Besides, the State does not concede that it has been recovered and so, I find that it has not been recovered.

53. Further from the Summary of Facts, the firearms that were removed from the police have not been recovered. For these reasons, I am satisfied that the Applicant has failed to show that the consideration under section 9(1)(g) of the Bail Act does not exist.

Exceptional circumstances

54. Although Mr Gonol did not submit that there are exceptional circumstances present in the Applicant’s case which warrants that he should be granted bail, I think that this is what he wanted to submit when he submitted that first the Applicant’s detention would not be in the best interest of his family because he has 5 wives and 12 children to look after and if he is not granted bail, his family will suffer.

55. Secondly, that he did not commit these crimes. As a community leader, the Applicant turned up at the road block to try and solve the dispute between his people and Oil Search but was wrongly identified by Oil Search staff as the instigator of the dispute.

56. Thirdly, that he is a businessman. He owns trade stores, PMV buses and liquor shops in his village and in Tari. If he remains in custody, there is no one to manage these businesses for him. There is the risk of loosing all these businesses.

57. Finally, he submits that the Applicant is suffering in health. He has been feeling sick and not eating well. As a result, he has lost a lot of weight and also lost his appetite.

58. It is accepted that the Court may take into exceptional circumstances when considering as application for bail but the onus is on an Applicant to prove that there exist exceptional circumstances. In other words, the National Court has also considered that it can grant bail to an Applicant if an Applicant is able to demonstrate that there are exceptional circumstances present in his or her case.

59. I refer to the cases of Bernard Juali -v- The State (1997) N1887, a case of wilful murder and Michael Aia’s case (supra), a case of armed robbery where the Court considered whether or not there exist exceptional circumstances.

60. And as Kandakasi J said in Steve Lester -v- The State (2001) N2044 at page 5 which I respectfully adopt here:

"The applicant therefore has the burden to show and convince this Court that his continued detention in custody is not justified and the interest of justice requires his release on bail. If the grounds relied on for bail by the applicant is intended to discharge that burden, I have two difficulties. First, there is no evidence whatsoever in any form to prove their existence. Secondly, I fail to see how all or any of them could be regarded has a factor or factors showing his continued detention in custody is not justified and that it is in the interest of justice that he should be granted bail".

61. And so, the question I ask is; has the Applicant shown that there exist exceptional circumstances in his case? Or to put it the other way, has the Applicant demonstrated in any way how his continued detention in custody is unjustified?

62. As I said in Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27 February 2008) on page 13 that:

"This was the same question paused by Her Honour Madam Justice Davani in the National Court Judgment of Michael Aia & Michael Maneba -v- The State (2001) N2124. There, Her Honour Madam Justice Davani considered an application for bail where the each of the Applicant was charged with one count of Wilful Murder. In considering what would have been exceptional circumstances in cases of Wilful Murder, Her Honour cited some examples on page 3 of the Judgment as follows:

1. prolong detention is adverse or may prejudice the defence;

2. the Applicant’s social activities;

3. the welfare of the Applicant and family may be prejudiced; and

4. the employment and business welfare of the Applicant may be prejudiced or in jeopardy".

63. There, I expressed some of my thoughts in respect of each of the examples given by Her Honour which may be considered exceptional circumstances in the following way on page 13:

"First, the prolonged detention of the Applicant may be adverse or prejudicial to the Applicant’s defence. I agree with my sister that this may constitute an exceptional circumstance. I consider that in cases of Wilful Murder where bail is not readily granted, I consider that this may be a consideration which falls under the cases of what would be defined as exceptional circumstances. In this particular case, I note that this point was not pursued by the Applicant. Hence, I will not take this into account. In any event, as the Applicant was recently as November 2007 arrested and detained pending the hearing of these charges, in my view this consideration has minimum effect on the out come of this application.

Secondly, as for the Applicant’s social activities such as participating in church activities, I beg to differ from my sister. I am of the view that loss of participating in social activities like church activities or even sports activities cannot be considered exceptional circumstances. I consider that one’s loss of participating in social activities is a natural or direct consequence of being charged and detained for committing an alleged offence. In this present case, in my view, the Applicant’s loss of participating in church activities as an Assistant Pastor is a direct result of being charged with two (2) counts of Wilful Murder and one (1) count of Attempted Murder. In my view, it is not an exceptional circumstance which would justify an exercise of discretion in favour of the Applicant.

64. In respect of those grounds raised by the Applicant, I note the submissions of Mr Gonol, and I ask, can prejudice to the welfare of the Applicant’s family of 5 wives and 12 children be considered an exceptional circumstance? In my opinion, it is not. This is where I have to respectfully beg to differ from my sister Davani J’s views in the Michael Aia’s case (supra).

65. I am of the view that the prejudice to the Applicant’s family welfare is not an exceptional circumstance. I consider that the prejudice to the Applicant’s family welfare is a natural or direct consequence of the Applicant being charged and detained for committing an alleged offence. I made this observation in my own judgment in the case of Briggs Negapigi -v- The State: MP No 493 of 2007 (Unnumbered & Unreported Judgment of 28 February 2008).

"Thirdly, as for the Applicant’s family welfare, I again beg to differ from my sister. I am of the view that the prejudice to the Applicant’s family welfare is not an exceptional circumstance. I consider that the prejudice to the Applicant’s family welfare is a natural or direct consequence of being charged and detained for committing an alleged offence. In this present case, again it is my view that the prejudice to the Applicant’s family welfare is a direct result of being charged with two (2) counts of Wilful Murder and one (1) count of Attempted Murder. In my view, it is not an exceptional circumstance which would justify an exercise of discretion in favour of the Applicant".

66. As Kandakasi J said in Joe Puksy Purari -v- The State (2001) N2077 a case where the accused was charged with armed robbery, attempted murder and unlawful use of motor vehicle and applied for bail and was refused bail:

"Finally, it is a common claim by all bail applicants that their family will suffer unless they are released from bail. There is the presumption of innocence on the one hand and on the other hand is presumption that a legitimate process has been set in motion on some proper basis. If an applicant's family is put to some suffering of some sort by their arrest and detention, it is their own doing. The effects of their conduct should not form the basis for an exercise of the discretion vested in a bail authority, to decide whether or not to grant bail. Accordingly, I also rejected the third ground advanced in support of the application for bail. I arrived at that decision, as I was of the view that the ground or argument advanced was not a valid ground for bail".

67. In this present case, it is my view that the prejudice to the Applicant’s family welfare is a direct result of the Applicant being charged with one count of armed robbery and one count of demand for compensation. Therefore, it is not an exceptional circumstance which would justify an exercise of discretion in favour of the Applicant.

68. Secondly, can I say that the prejudice to the Applicant’s business interest is an exceptional circumstance? As I said in Lawrence Tapi’s case (supra) on page 13:

"Fourthly, as to the prejudice to the Applicant’s employment and business, again I beg to differ from my sister. I am of the view that this consideration does not constitute an exceptional circumstance. Loss or prejudice to the Applicant’s employment and business is a natural or direct consequence when one is charged with committing an alleged offence(s). This consideration is not an exceptional circumstance.

Even if I am wrong, I am of the view that whilst there is evidence in the Affidavit of the Applicant sworn and filed on 28 January 2008 to suggest that the Applicant’s business will be in jeopardy, it is not an exceptional circumstance. As the Applicant operates three (3) trade stores and three (3) motor vehicles, two (2) as support vehicles for the trade stores and one (1) Toyota Landcruiser used for hire by the Menyama businessmen, I consider that this is a small to medium business enterprise where it could reasonably be expected that the Applicant would have employed a small number of staff to run the trade stores and also drive the motor vehicles. I find that the Applicant has not established a case of exceptional circumstance under this consideration".

69. In this case, whilst the Applicant contends that his continued detention has affected his business, I am of the view that this ground does not amount to exceptional circumstances. I consider that loss or prejudice to the Applicant’s businesses is a natural or direct consequence when one is charged with committing an alleged offences. For these reasons, I find that the Applicant’s business interest is not an exceptional circumstance. I reject this ground.

70. The other ground is; can I say that the Applicant’s suffering from ill health is an exceptional circumstance? He says that he has been feeling sick and not eating well. As a result, he has lost a lot of weight and also lost his appetite.

71. As I said in Lawrence Tapi’s case (supra) on page 13:

"There is one last aspect which I wish to mention here. I consider that one consideration that may be considered exceptional circumstances is the welfare of the Applicant. This will again depend on the Applicant showing by appropriate evidence that his welfare whilst in custody is in jeopardy.

For example, the Applicant must show by appropriate evidence that he is suffering from serious medical ill health. Appropriate evidence should include Medial Report from a reputable and specialist Doctor.

In this case, the Applicant has not as I find that there is no evidence presented to support this ground of serious medical ill health of the Applicant". (Underlining is mine).

72. I consider that the welfare of the Applicant’s health may be an exceptional circumstance but there must be appropriate evidence presented to show that his welfare whilst in custody is in jeopardy.

73. In the present case, I note that the Applicant says that he has been feeling sick and not eating well. As a result, he has lost a lot of weight and also lost his appetite. But there is no evidence from a doctor to confirm this. There is not even a Medical Report presented to show that the Applicant is sick or his health is deteriorating. All I have is the Applicant’s assertion that his health his deteriorating.

74. In the absence of any medical evidence to prove that the Applicant is sick or his health is deteriorating to a point where his life is in great danger, I am not satisfied that the Applicant has shown there exists exceptional circumstances in this case. For these reasons, I am not satisfied that the Applicant have shown that his continued detention in custody is unjustified.

75. On the other hand, he claims that he is innocent. He says that he was not involved in the commission of these offences. The question is, is innocence of an accused an exceptional circumstance? In my view the answer is straight forward. It is not. The question of guilty or otherwise in my view is a matter for trial and cannot be a ground for the grant of bail. Therefore, I reject this ground.

76. The last matter I want to say is that there is no evidence before me nor were there submissions by Mr Gonol of the amount of surety and cash bail which the guarantors and the Applicant are prepared to put up in the event the bail is granted. I consider that these are serious omissions on the part of the Applicant and I will hold these against him. See Joe Puksy Purari’s case (supra) and Philip Maru & Arua Oa -v- The State (2001) N2045.

77. This leaves the Court with the serious allegations of armed robbery with actual and threat of violence where dangerous or offensive weapons were used and demand for compensation against the Applicant to consider as opposed to his mere denial of the charges based on his claim that he was wrongly accused.

78. That gives me no choice but to follow the dictates of the Supreme Court in Re Fred Keating’s case (supra), namely, the application should be refused if one of the factors under section 9(1) of the Bail Act is established unless the Applicant shows his continued detention in custody is not justified.

CONCLUSION

79. In the end, I find that the Applicant has failed to discharge the onus that none of the considerations under section 9(1)(a),(c),(d),(f)&(g) of the Bail Act exists. Further, I find that the Applicant has failed to show that there are exceptional circumstances in this case and also that the reasons advanced by the Applicant in support of his application are not exceptional circumstances. Therefore, the application must fail.

I refuse the application.

______________________________________________

Acting Public Prosecutor: Lawyers for the State
Paulus Dowa Lawyers: Lawyers for the Applicant