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Sudath v State [2010] PGNC 198; N4271 (17 September 2010)

N4271

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 375 OF 2010

BETWEEN:

HANDUN SIVANKA DE SILVA SUDATH
- Applicant–

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

- Respondent –

Waigani: Hartshorn, J.
2010: 17th September

Application for Bail

Facts:

This is an application for bail by the applicant who was charged for being in possession of a dangerous drug, cannabis whist he was on bail for previous criminal offences. This application is before this Court pursuant to an order of the Supreme Court which amongst others, granted liberty to the applicant to reapply for bail before the National Court.

Held:

1. I am satisfied on reasonable grounds as to 2 of the conditions listed in s. 9 (1) Bail Act.
   
2. Given the admitted breaches of bail conditions in respect of other offences with which the applicant is currently charged and in view of the inadequate explanations for those breaches especially the non-notification to the police, and that no applications for variation were ever made, it is not in the interests of justice that bail should be granted.
   

Cases cited:

Papua New Guinea Cases

Re Bail Application, Fred Keating v. The State (1983) SC257

Overseas Cases

R. v. Slough Justices, Ex parte Duncan and Another (1982) 75 Cr. App.R.384.

Counsel:

Mr. F. Griffin, for the Applicant
Mr. A. Bray, for the Respondent

17th September, 2010

1. HARTSHORN, J: The applicant Handun Sivanka De Silva Sudath, has been charged with the possession of a dangerous drug, cannabis, pursuant to s. 3 (1) (d) of the Dangerous Drugs Act.

2. He applies for bail.

3. This application is before this Court pursuant to an order of the Supreme Court dated 7th September 2010 which amongst others, granted liberty to the applicant to reapply for bail before the National Court.

4. The applicant denies the charge. He deposes in his affidavit amongst others, that he has never consumed cannabis and that he was framed. He was not present when the police allegedly discovered cannabis in his room.

5. He further deposes that he is married and also has a de facto relationship. He has four children altogether and is the sole means of support for his children, his wife and de facto partner. He seeks bail so that he can renew his visa and work permit, can resolve management issues at his company and make financial arrangements for his family.

6. Counsel for the applicant submitted that the applicant should be granted bail as:

a) his prospects of successfully defending the charge in the District Court are high,

b) his arrest was very sudden and he was not able to make arrangements for his children and wife. They have been displaced and are facing substantial financial hardship,

c) he is undergoing medical treatment as a result of dental surgery,

d) the applicant's business interests have been badly affected as a consequence of his sudden arrest and require his urgent management,

e) there have been adequate explanations provided in response to the grounds of objection raised in the affidavits filed on behalf of the State.

7. The State objects to bail as it contends that:

a) the offence itself constitutes an offence that is stipulated in s. 9 (1) (j) Bail Act and as such is an offence in respect of which a bail authority, if it is satisfied on reasonable grounds, can refuse bail.

b) the offence was committed when the applicant was on bail in respect of the five other offences with which he is currently charged. This is a further consideration, under s. 9 (1) (b) Bail Act, in respect of which a bail authority, if it is satisfied on reasonable grounds, can refuse bail.

c) the fact that the applicant was charged with an offence while he was on bail makes it likely that he will commit an indictable offence if he is not in custody, thus coming under s. 9 (1) (d) Bail Act. The offence in respect of which the applicant is seeking bail is not an indictable offence. There is no other evidence supporting this objection and so I consider it no further.

d) the applicant has admitted breaching bail conditions imposed in respect of the five other offences referred to and has not given adequate explanations for the breaches. The applicant is therefore not likely to comply with any future bail conditions that may be imposed.

8. As to the objections of the State the applicant submits as follows:

a) no submission was made as to the offence with which he is charged under the Dangerous Drugs Act coming within s. 9 (1) (j) Bail Act.

b) The applicant concedes that it is alleged that he committed the offence for which he is currently charged whilst he was on bail. He maintains his innocence however and states that the other offence with which he was charged at the same time, has been withdrawn. He again maintains that he was framed.

c) as to breaching previous bail conditions, the applicant concedes that he did breach a bail condition when he changed his residential address. He deposes however that this was not of his doing and was because of factors beyond his control. He deposes that the lease on the property in which he resided expired and he was forced to vacate. He annexes a copy of the subject lease and a letter purportedly dated 15th September 2008 giving him notice to vacate. There is no evidence of the applicant informing the police that he had to vacate or of any application being made to vary this bail condition. Given that the applicant changed his address in or about October 2008, he was in continuous breach of the relevant condition until his arrest. It is conceded that the police were not notified and no application was made to vary his bail conditions.

d) The applicant concedes that it is true that he did breach the reporting requirements of his bail conditions by not reporting to the National Court Registry on the 2nd, 9th and 16th August 2010. He deposes however that it was necessary for him to undergo dental surgery on these dates as a result of assaults he had suffered allegedly by members of the police. He annexes a copy of a letter from his dentist which amongst others explains that he had treatment on the 6th and 9th August 2010. It does not record that he received any treatment on 2nd or 16th August. Again, there is no evidence of the applicant informing the police that he had to undergo this treatment or of any application being made to vary his reporting requirements.

9. An affidavit has been filed by Ms Laura Lillywhite, the de facto wife of the applicant, in which she deposes amongst others, that matrimonial difficulties with the applicant have been resolved, that she wishes to resume cohabiting with him at Laloki and for their children to be brought up properly, that they will be married when the applicant's divorce is finalised, that they have discontinued custody proceedings, that she supports the application for bail as the applicant is stressed and that his custody is depriving her and their children of financial and emotional support. Ms Lillywhite further deposes that she is aware that the applicant is supporting two families and that his transport business is presently failing due to lack of management. Ms. Lillywhite is prepared to be a guarantor and pledges K500.

10. A further affidavit is sworn by Mr. George Ila who deposes that he is willing to be a guarantor for the applicant. He deposes that he is aware of the responsibilities of a guarantor and that he is willing to pledge K 500 surety.

11. The right to bail is guaranteed by s 42(6) of the Constitution. Section 9 of the Bail Act sets out the criteria for refusing bail. In Re Bail Application, Fred Keating v. The State (1983) SC257, the Supreme Court said:

When considering the grant or refusal of bail in cases other than wilful murder or treason, the courts and other bail authorities are to be guided generally by s. 9. But whilst the Bail Act is a complete code in dealing with the grant or refusal of bail, by s.3, in matters other than wilful murder or treason, the bail authority may still have to consider the question of the interest of justice. This may involve considerations other than the criteria for refusing bail as established in this section.

12. The Supreme Court also 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 has the discretion to decide whether to grant bail, having regard to the particular circumstances of each case and in the interests of justice.

13. As to the submission of counsel for the applicant that the prospects of the applicant successfully defending the charge are high, I note the alleged error in the wording of the information. I am not satisfied that this in itself constitutes an exceptional circumstance justifying bail as submitted.

14. As to the submissions described by counsel for the applicant as humanitarian, the effects on family and business interests cannot be said to be unusual. There will always be some hardship faced when bail is refused.

15. As to the objection to bail by the State on the ground that the alleged offence involves the possession of a narcotic drug other than for the personal medical use of the applicant, I am satisfied that the offence that the applicant is charged with does come within s. 9 (1) (j) Bail Act.

16. As to the objection to bail by the State on the ground that the applicant has breached previous reporting and residential requirements and is therefore unlikely to comply with other bail conditions that may be imposed, the applicant has admitted that he breached those conditions and has given explanations for those breaches. However I am not satisfied with the explanations. The letter from the dentist only gives explanations for two of the days when he missed reporting requirements and the letter giving him notice to vacate confirms that he has been in breach of a bail condition for about one year eight months without notifying the police or making any attempt to vary his bail condition. In any event, it was incumbent upon the applicant to inform the police that he was not able to comply with certain of his bail conditions or to apply for variation of those bail conditions before the breaches occurred instead of merely breaching them.

17. In Re Fred Keating (supra) Andrew J. said at p. 140;

before the discretion to refuse bail arises, the court has to be satisfied that there are substantial grounds for believing that one or more of the events described in s.9(1)(a) – (g), will happen. It is the existence of substantial grounds with the belief, not the belief itself, which is the crucial factor: See R. v. Slough Justices, Ex parte Duncan and Another (1982) 75 Cr. App.R.384.

18. I am satisfied on reasonable grounds as to 2 of the conditions listed in s. 9 (1) Bail Act in this instance. I am also satisfied that given the admitted breaches of bail conditions in respect of other offences with which he is currently charged and in my view the inadequate explanations for those breaches especially the non-notification to the police, and that no applications for variation were ever made, in the particular circumstances of this case it is not in the interests of justice that I should exercise the court's discretion and grant bail.

19. Accordingly the application by Handun Sivanka De Silva Sudath for bail is refused.
_____________________________________________________

Young & Williams Lawyers: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent