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Israel v State [2018] PGNC 20; N7104 (15 February 2018)

N7104

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 869 OF 2017

SOLOMON KIKI LARRY ISRAEL

V

STATE

Kimbe: Miviri AJ

2018: 09^th 14^th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application - armed robbery & unlawful use of Motor vehicle - grounds under section S9 (1) (c) (i)(ii)(iii) Bail act invoked - offensive and dangerous weapon used - S9 (1) ( c) (i)(ii)(iii) (e) – no substance to application - Bail refused.
Facts
Accused charged with armed robbery and unlawful use of motor vehicle.

Held
No substantial material before court to grant bail
Application refused and applicant remanded.

Cases:
Bernard Juale v The State [1999]N1887 MP No. 215 of 1997
Kasi v The State [1999] PNGLR 566
Re-Fred Keating [1988] PNGLR 133

Counsel:

A. Bray, for the State
D. Kari, for the Defendant

RULING

15^th February, 2018

1. MIVIRI AJ: This is the ruling on an application for bail made by the applicant remanded in custody who is charged with armed robbery pursuant to section 386 and unlawful use of motor vehicle pursuant to Section 383 both of the Criminal Code.
   

Information

2. Information laid dated the 6^th December, 2017 attached as annexure A1 of the affidavit of the applicant charges that on the 20^th November, 2017, Solomon Kiki Larry Israel of Temagu village, Namatanai, New Ireland was in the company of others and armed with an offensive weapon a homemade stapler pistol, bush knives and other offensive weapons did threaten to use and used actual violence and stole from one Sam Gewai and Sino Tolai K400 in cash, the property of Billy Patimos.
   
3. Annexure A2 also attached to the affidavit of the applicant is information dated the 6^th December, 2017 for unlawful use of motor vehicle contrary to Section 383 against the applicant that he on the 20^th November 2017, at Laleki unlawfully used a Toyota hiace bus registration number P5672, the property of Billy Patimos without his consent.
   
4. Annexure B also attached to his affidavit is the statement of facts which alleges that he was armed with a homemade stapler pistol and bush knives and did rob a PMV bus driver and crew of the days takings on the 20^th November, 2017 at about 11.00am. He was with five others and they held up the driver, pulled him out and his crew boarded it, drove up the first street of Laleki where they abandoned the bus and ran away with the days takings of K400, property of Billy Patimos. The passengers were in the bus and went out of the bus when the accused and accomplices abandoned it. The police arrived soon after, gave chase and the applicant was caught, brought back to the police station and charged.
   

Bail Application

5. The applicant has invoked the provisions of the Bail Act section 6 and Section 42 (6) of the Constitution for bail pending trial.
   

Constitution Section 42 (6) Right to Bail

6. Section 42(6) of the Constitution basically gives the right to bail from arrest or detention to all offences excluding wilful murder or treason. And this is available to the defendants applicants from arrest detention right down to acquittal or conviction unless the interest of Justice otherwise requires.
   

Section 6 Bail Act

7. Section 6 of the Bail Act enforces this in allowing bail to apply for at any time after arrest and detention with the exception of offences under section 4 which are the exclusive prerogative of the National and the Supreme Court only. In so doing the court shall grant or refuse bail in accordance with Section 9.
   
8. And section 9 is in these terms:
   

Considerations Affecting Decision on Bail Matters.

9. BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

(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) that the person in custody is unlikely to appear at his trial if granted bail;

(b) that the offence with which the person has been charged was committed whilst the person was on bail;

(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) a serious assault; or

(ii) a threat of violence to another person; or
(iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive;

(d) that the person is likely to commit an indictable offence if he is not in custody;

(e) it is necessary for the person’s own protection for him to be in custody;

(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings;

(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;
(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;

(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody;
(j) that the alleged offence is one of breach of parole.

(2) 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.

(3) For the purposes of Subsection (1) (i), “narcotic drug” has the meaning given to it in the Customs Act 1951.”

9. It is required that I must be satisfied, 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 matter described in section 9 (1) (a) to (g) are present. It is the existence of substantial grounds for the belief not the belief itself which is the crucial factor: see Rv. Slough Justices; Ex Parte Duncan and Another [1982] 75 Cr. App. R 384” In Re-Fred Keating [1988] PNGLR 133.
   

Issue

10. Are there substantial grounds here for me to refuse the application for bail?
    

Application of the law to facts

11. Applying the facts which are set out in the information provided laid out by the applicant for bail, I determine that section 9 (1) (c) (i) (ii) (iii) is applicable here in that a homemade stapler pistol was used to get the driver out of the bus and drove to the secluded area where they took what they had to take and ran away but this applicant was caught by police there.
    
12. Firstly, it was a threat of the use of violence upon the driver, crew, and the passengers of that PMV bus. The threat was imposed accompanied with a dangerous weapon a stapler pistol in the possession of the applicant, which had a real and present propensity to kill and to maim there and then at the time it was used in the way set out in the information. Because there was no guarantee that it was safe being a homemade pistol not guaranteed like a factory manufactured pistol or gun, for example a Glock 99mm or Winchester buck shot. The latter have safety in built which can be set to guarantee which is not the case of a homemade stapler pistol as here. It was a very serious case and no light matter.
    
13. Threat of violence was used to steal and to deny the liberty of the crew of the PMV bus, its driver and passengers in a public suburb Laleki, right in Kimbe town.
    
14. There are substantial grounds present here of violence against the passengers the driver and crew of the bus pulling the driver out of the bus driving it to a corner getting the K400 and escaping from it. This is a very serious act of violence which has not being negatived by the applicant in the application that he has filed.
    

Law abiding self- Serving

15. The statement of being a law abiding citizen and of not having to come into conflict with law is self- serving and adds nothing in view of the very serious allegation that are levelled and the charges which have been laid against him. It is not coming from a person other than the applicant and so will not add or subtract anything to the application.
    

Disease airborne in Lakiemata no verification

16. The contention of airborne disease being prevalent in Lakiemata and concern about health also is self- serving and does not add to the application. There is nothing medically or scientifically proven to confirm or deny this assertion before me. Applicant is making application to be released on bail, there must be substantial material placed before this court to exercise its discretion by law and in compliance of the law. The charges are very serious, robbery in particular carrying the maximum of the death penalty.
    

Completion and Further Education

17. The completion of grade 10 in the year 2016 and the intentions to continue education in 2018 is without substance as there is no offer of a learning Institution that is taking the applicant this year. Nor is there substance of the completion of the grade 10 and at what school including marks attained so as to determine with substance. Searching for employment is likewise the same. The applicant appears to be not educated to grade 10 level because the place where the applicant is to have his signature imprinted out in this application is initialled with S.K. That cannot be an educated person or student who has just finished school at grade 10 level. There is no material as to what he was doing in school last year 2017 to make concrete his assertion of further education. There is no substance in this ground and does not advance his application.
    

Confirmed Residential location

18. Laleki is the place of the allegation and also where he lives but he does not provide the exact location, section and allotment number of where his parents are, let alone some details as to what his parents do for a living how long they have lived in Laleki and Kimbe. There must be substance in what he contends. To my mind there is no substance in what he is applying for before me. I do not have the guarantee of his reappearance from that location to answer bail if granted.
    

Guarantors

19. For proposed guarantors Pastor David What and Allan Sinade both are resident in Ruango which is a long way away from Laleki and for supervision to be opted to reasonable standards in my view this will not be maintained given the location. Both are not a face and name to an application but serve the purpose of ensuring that the reappearance from bail of the applicant is guaranteed that is why they are addressed as guarantors. They are the link between the court and the applicant to ensure appearance and observance of the bail conditions that have been imposed. Practically it would be illogical to have the guarantors at one end of town and the applicant at the other end of town. It would be more efficient to have both parties resident at the same location so that enforcement supervision of the conditions imposed are adhered to without failure.
    
20. I am not satisfied that the application comes with substance to be granted and for the reasons set out above I deny the application and order that the applicant be remanded forthwith.
    
21. Application for bail is denied and the defendant is to be remanded forthwith
    

Orders accordingly.

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant