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State v Dowan [2018] PGNC 237; N7331 (3 July 2018)

N7331


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) No. 166 OF 2018


STATE


V


IKI DOWAN


Waigani: Miviri AJ
2018: 2nd July


CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application s.42 (6) Constitution – ss.4, 6, 9 Bail Act – Conspiracy to defraud – asthma Patient – elderly accused – no objection by State – application granted on strict conditions.

Facts
Applicant arrested no appearance on ex officio Indictment conspiracy to defraud state of K4 million.


Held
Asthma patient
Application made out
Application granted with strict conditions.


Cases:
Fred Keating [1988] PNGLR 133.
Re Thomas Markus [1999] PGNC 82; N1931


Counsel:


T. McPhee, for the State
K. Kil, for the Applicant


RULING

3rd July, 2018

  1. MIVIRI AJ: This is the ruling on an Application for Bail made by the Applicant pursuant to Section 42 (6) of the Constitution and Sections 4 and 6 of Bail Act.
  2. He is in custody pursuant to a warrant of arrest issued by this court following non- appearance on the 21st May 2018 whereby that warrant has been executed and he is in custody pursuant to the warrant. He was charged on ex officio Indictment that he between the 30th day of September 2013 and the 2nd day of September 2014 at Mt Hagen Western Highlands and Port Moresby National Capital District both in Papua New Guinea conspired with Paul Emba to defraud the Independent State of Papua New Guinea by stating that they were genuine land owners of Yombikul land Portion 1128C, Hagen, Ramu Western Highlands Province, in order to receive the sum of Four Million Kina (K4, 000, 000.00).
  3. He relies on his affidavit filed the 21st June 2018 whereby he swears that he was served the ex officio Indictment on the 26th April 2017 but was not told of the date when he should appear in court on the matter. On 1st June 2018 he was apprehended for non- appearance in the first call over.
  4. He did not appear on the first call over on the 21st May2018 because he was at the Gerehu General Hospital to get treatment as an Asthma patient. And he has attached to his affidavit as annexure “D” Adult health Record Book. Which evidences that indeed he is an Asthma patient there and his record of treatment goes back to 3rd June 2017 up to the recent one of 25th January 2018. This is not the date that he says he was at treatment at the hospital and did not answer call over. It is therefore a matter against him which must be addressed stringently against in the grant of this application. The court is not bound by technical rules of evidence but may act on what information that is before it. In this case it is clear the applicant is a regular asthma patient and therefore would be suited to be out on bail to ensure he maintains his health as best as he can. But must be drawn to his pending criminal charges with strict conditions on bail in the light of the gravity of the allegation against him.
  5. He has filed in support two affidavits of proposed guarantor’s one, Kanage Palus sworned 20th June 2018 and filed the 21st June 2018. And second, Londe Pilyo sworn the 20th June 2018, filed the 21st June 2018. The former is 50 years old a cousin brother to the applicant and also a businessman resident at section 10 Allotment 22 Okari Street Boroko National Capital District. He is a self- employed business man who provides security services to the Chinese restaurants at Garden City. He deposes that he knows the applicant who is a community leader with good standing in the community. This witness swears that he gives his guarantee that the applicant will appear should bail be granted. He pledges cash surety in the sum of K600. The second guarantor is maternal cousin a primary School Teacher who has since left and is running his own business Pilon Investment Limited. And is a resident of Port Moresby at Neawe Street, 9 Mile, National Capital District.
  6. Both guarantors are immediate relatives and not independent persons. By that fact their supervision in the guarantee of the applicant on bail is prejudiced. It is necessary to ensure they faithfully and diligently discharge their obligations as guarantors. Further that they are tied down to their obligations to ensuring the applicant can be easily located given the fact that he has given a general location on bail at Tete Settlement in Gerehu. And that he is not a resident of that area but came down from Maltaka village Tambul District Western Highlands Province for a claim arising out of land where a community school has been built at Yombikul Tambul Western Highlands Province.
  7. Further the guarantor Londe Pilyo has a general residency location as Neawe Street, 9 Mile Port Moresby National Capital District including his business address which is a P. O. Box 7898, Boroko and not a fixed location by section and allotment number. The guarantor Kanage Palus in addition to his address and location by section and allotment number is a self- employed business man providing private security which business is not fixed by location and allotment number and therefore must be tied down to the guarantee pledged.
  8. The allegation against the applicant is very serious involving substantial amount of money, four million kina it must be properly dealt with according to law. But at the same time applicant is a person who has medical history currently of Asthma and must be subdued to treatment at all times to ensure his health is not forfeited.
  9. But he is resident at Tete Settlement and will be resident thereupon grant of this application. He came here in pursuit of a claim for a piece of customary land acquired by the State to build a school at Yombikul, Tambul District Western Highlands Province which presumably is the subject of the charge. The guarantors each pledges surety in the sum of K600 to ensure the appearance of the applicant from bail until his matter is disposed off in law.

State position


  1. The State does not oppose the application. Accepting fault partially that applicant was not informed as to his next appearance date and that he is an elderly person who has asthma and would do well to be outside so that when the need arises he seeks medical help.

Court’s Jurisdiction


  1. He makes an Application for Bail pursuant to Section 6 of the Bail Act and Section 42 (6) of the Constitution. In so doing the provisions of Section 9 of the Bail Act are considered as to whether or not there are reasonable grounds upon which the applicant will appear at his trial whilst on bail. The offence is conspiracy to defraud the State of K4, 000.000.00. It is required, “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 R v Slough Justices; Exported Duncan and another [1982]75 Cr. App. R 384; In re Fred Keating [1988] PNGLR 133.
  2. Applicant has the right to be granted bail by virtue of Section 6 of the Bail Act reinforced by the Constitution Section 42 (6) but in the exercise of that discretion the court is directed to Section 9 of the Bail Act; Re Thomas Markus [1999] PGNC 82; N1931 (15 September 1999) Discretion meaning that there must be facts provided upon which the discretion in law will be exercised. Here these include the following set out above.
  3. Which are considered substantial in view of Section 9 (1)(a) of the Bail Act in particular guarantee that he will reappear if granted bail, accordingly the motion is granted on the following conditions and orders before he is released on bail;-

Orders accordingly.

_________________________________________________________________

Public Prosecutor: Lawyer for the State

Japson & Associate Lawyers: Lawyer for the Defendant

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