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Ivaroa v State [2012] PGNC 262; N4577 (17 January 2012)

N4577

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No. 428 of 2012

BETWEEN:

GEORGE TOTO IVAROA
Applicant

AND:

THE STATE
Respondent

Waigani: Kangwia, AJ.
2012: 9 & 17 January

PRACTICE AND PROCEDURE – Application for bail pending committal proceedings - Reasons of Medical condition, family welfare and business interests relied on – Considerations under S. 9 of Bail Act present which warranted refusal of bail –Use of firearms to commit offence - Interference to witnesses likely – Concealing or dealing with stolen property likely - Grant of bail discretionary but refused pending completion of investigations.

Cases cited:

Re Fred Keating v The State [1983] PNGLR 133

Counsel

R. Raka, for the Applicant
T. Ganaii, for the State

17 January, 2012

1. KANGWIA AJ; Toto Ivaroa George exercised his statutory right under s.6 of the Bail Act (the Act) to apply for bail pending committal proceedings. All dealings with issues of bail are codified under the Bail Act (the act). It is purposely to give interim judicial release to an alleged offender in compliance with the Constitutional right to bail at all times pursuant to s. 42 (6) of the Constitution.

2. The alleged facts in brief are that the applicant was charged with one count of armed robbery after an armed robbery was committed at Frangipani Street – Hohola. It was alleged that K1.4 million in cash was robbed from Corps Security personnel who were escorting the money belonging to City Pharmacy. It was alleged that the applicant received a share of the loot at Tubusereia village.

3. Three broad reasons were given as a basis to request for bail:

1. The welfare of his family will suffer with his continued detention.

2. His business activities will be greatly affected in his absence while in detention.

3. He had a serious medical condition.

4. He relied on the following affidavits to support his application:

1. His own affidavit with annexure which deposed to the reasons why he was seeking bail.

2. The affidavit of Rev. Naime Hou who volunteered to be a guarantor.

3. The affidavit of Rima H. Grifffin who also volunteered to be a guarantor.

5. Mr. Raka of counsel submitted on his behalf that the criteria for refusing bail under s.9 of the Act were not present. The applicant was a well known businessman and unlikely to abscond bail. It was also submitted that he was not in possession nor did he use any firearm as he was alleged as a planner only. He had secured a contract to rehabilitate schools but would be lost with his continued detention. His children's school fees needed to be found as the school year was commencing soon. He also had a serious medical condition which required him to be away from a remand centre. It will deteriorate with his continued detention.

6. It was also submitted that the summary of facts did not connect the applicant to the alleged offence and on those basis he should be granted bail.

7. Ms Ganaii for the State objected to the grant of bail with the following observations:

(a) The applicant was a co accused to the other applicants for bail where the criteria for refusal of bail under S. 9 were present. The property of substantial value has not been recovered and the firearms were allegedly used in the commission of the offence.

(b) The investigations were continuing and when circumstances later changed he could still apply for bail.

(c) Reasons of business interests suffering or family welfare issues were natural consequences of being charged with a very serious offence.

8. Ms Ganaii further relied on the affidavit of the arresting officer, Emmanuel Fofosiar. In his affidavit he deposed of the likelihood of interference with witnesses or sources of information, the firearms were not recovered and that the investigations were continuing.

9. The general provision of law covering bail is that every person charged with an offence is entitled to bail at all times under s. 42 (6) of the Constitution. This is a primary right of a person charged with an offence. The primary right is guided by the criteria for refusal of bail provided under s. 9 of the Bail Act. The applicant must first and foremost satisfy the court that his continued detention was not justified. He does that by either showing that the considerations of s. 9 of the Act were not present or some other consideration warrant the grant of bail.

10. In the present case three considerations under s. 9 which would warrant a refusal of bail are present. The first relate to the use of firearms as provided under s. 9 (1) (c) (iii). From the affidavit of S/C Fofosiar and the police brief it is reasonable to infer that the applicant was involved in the alleged commission of the offence as an accomplice where firearms were used.

11. Secondly the likelihood of interference with witnesses is present by virtue of s. 9 (f) of the Act. The investigation has not been completed. The likelihood of interference with possible witnesses or source of information from assisting the investigation is probable and also real. The applicant seems to be a well known businessman according to the submissions on his behalf. It is reasonable to infer that he would have the influence and capacity to curtail police investigations.

12. Thirdly, the considerations under s. 9 (g) of the Act is also present. It deals with property of substantial value (K1.4 million) which has not been recovered yet. An alleged offender who is allowed bail is most likely to deal with such property or take steps to conceal it to avoid criminal sanction. It is also reasonable to infer that the applicant may deal with the property or take steps to avoid being discovered. This likelihood is more probable and real with a person who is alleged to have benefitted from the ill-gotten loot.

13. Despite the presence of these considerations which would invite a refusal of bail, the applicant can be granted bail at the discretion of the court.

14. The law on the grant of bail is well settled. In Re Fred Keating v the State [1983] PNGLR 133 Kidu CJ and Andrew J held that:

"If one of the considerations in s. 9 is present it does not follow that bail must automatically be refused; there is always discretion in the bail authority to grant bail".

15. This is primarily based on the entitlement to bail pursuant to s. 42 (6) of the Constitution and s. 3 of the Bail Act. Conversely, interest of justice requirements would deny bail to a person charged with the category of offences described under s. 4 of the Act if any of the considerations of s. 9 were present. The applicant's case falls into this category. However, the grant of bail would be at the discretion of the National or Supreme Court.

16. In the present case the question is whether the reasons advanced by the applicant are sufficient to constitute a circumstance that would attract the exercise of discretion to grant bail. To answer this question the broad reasons advanced by the applicant needs assessment. These reasons have to be considered in line with the competing considerations under s. 9 which have been shown to be present.

17. First is that the welfare of his family will be adversely affected. He deposed to be the husband of two wives and father of nine children who all live with him. He is the sole breadwinner and they also depend on him.

18. Second is that his business activities will suffer with his continued detention. He deposed that he was self employed and his only means of earning a living was through contracts with NCDC. It was from these contracts that he generated income to sustain his family. His two wives are unable to manage the affairs of the business and he will lose out completely. It will also affect his children's school fees.

19. Third is that he has a serious medical condition. By an affidavit dated 8 January 2012 he deposed that in 2009 he developed appendicitis and went into operation in which his appendix was removed. He felt pains in the area operated on so he went for a medical check in early November 2011. He consulted Dr. David Inaho of the St. Mary Medical Centre who told him that he had a failing kidney. He was concerned about his medical condition given the kind of food and water served at Bomana. He annexed a medical examination report in the form of a letter purportedly authored by Dr. David Inaho.

20. At the outset bail would be granted for the reasons given if they constituted a circumstance that was reasonable or even exceptional in the face of the considerations under s. 9. The reasons in my view do not constitute a circumstance that would attract bail at present. Does the interest of justice require the grant of bail in the face of competing circumstances? My answer to that question is not for the time being.

21. Firstly, the investigation is yet to be completed. The likelihood of interference with witnesses or source of information for investigators is most probable given the applicants standing. He would have the capacity as a businessman with the network of contacts to do this. It would be in the interest of justice to have the investigators complete their investigations unhindered with possible interference before bail is allowed.

22. Secondly, the alleged property involved is substantial. None of it has been recovered yet. There is allegation that the applicant received some of the loot. If that were true the possibility of dealing with it are most probable and real. The possibility of concealing the amount and dealing with the property is high if the applicant were released on bail. The police may recover some or all of the property at the height of their investigations. It is quite possible that the loot may never be recovered. For the time being though, while the investigations have yet to be completed it is in the best interest of justice that detention was justified. Upon completion of the investigations it would be quite open to the applicant to apply for bail.

23. As to the reason of his medical condition I am not satisfied that what the applicant deposed is on its own a sufficient basis for the grant of bail. There is no supporting evidence of a Doctor. A letter purported to be a medical report does not come within the ambit of satisfactory evidence under the Evidence Act. There must be properly deposed material from a doctor showing his medical condition for adequate weight to be placed on it to attract bail.

24. The family welfare and business considerations are relevant factors in bail applications. However, a person who is allegedly involved in the commission of an offence does so at the expense of family welfare or business interests. The effects on family or business interests are natural consequences of allegedly falling out of line with the law. Bail should not be readily available to these types of reasons for the exercise of discretion to grant bail.

25. Given those observations bail is refused pending completion of the investigations.

____________________________________
Raurela Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent