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Sugwi v State [2018] PGNC 274; N7390 (25 July 2018)

N7390

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 173 of 2018 &
CR (AP) No. 174 of 2018

JOSHUA DAVID SUGWI AND JAMES SUFUYU
Applicants

V

THE STATE
Defendant

Kokopo: Anis J
2018: 17 & 25 July

CRIMINAL LAW – Applications for bail – sections 4 and 6 of the Bail Act Chapter 340 – section 42(6) of the Constitution – charge of robbery under section 386(1) & (2) of the Criminal Code Act – discretion – whether the prosecution, in objecting bails, is able to establish one or more of the grounds set out under section 9(1) of the Bail Act

Cases cited:

Eremas Matiul v. The State (2016) N6324
Joyce Maima v. The State (2008) N3611
Re-Fred Keating [1983] PNGLR 133

Counsel:

Ms E. Marum, for the Applicants
Mr L. Rangan, for the State

RULING

25^th July, 2018

1. ANIS J: The two (2) applicants (applicants) applied for bail. I heard their bail applications on 17 July 2018 and reserved my ruling to a date to be advised.

2. This is my ruling.

APPLICATIONS

3. The applicants cited, as their sources, section 42(6) of the Constitution and sections 4 and 6 of the Bail Act Chapter No. 340 (the Bail Act). Firstly, section 42(6) of the Constitution states:

(6) A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

4. And sections 4 and 6 of the Bail Act state as follows:

4. Only National or Supreme Court may grant bail in certain cases.

(1) A person—

.....

(b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or break and enter a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence,

shall not be granted bail except by the National Court or the Supreme Court.

(Underlining is mine)

6. Application for bail may be made at any time.

(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.

(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.

(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section

5. I find the sources relied upon by the applicants for their bail applications to be in order. In this case, both applicants have been committed to stand trial on charges for the offence robbery under section 386(1) & (2) of the Criminal Code Act Chapter No 262 (CC Act). As such and pursuant to section 4(1)(b) of the Bail Act, they were required to and they have applied for bail before the correct forum which is the National Court.

ISSUE

6. The main issue is this. Whether the prosecution, in opposing the bail applications, has satisfied the Court on reasonable grounds that bail should be declined based on one or more of the reasons that are set out under section 9(1) of the Bail Act.

APPLICANTS

7. The applicants filed supporting affidavits. For applicant Joshua Sugwi, his affidavit was filed on 10 July 2018. He states his reasons for grant of bail as follows. Firstly, he states that he is a law abiding citizen and that he has never come into conflict with the law before the alleged incident. Secondly, he states he has been in custody for over 6 months. And thirdly, he states that the Kereval jail is currently over-crowded and is unhealthy to occupy. Applicant James Sufuyu has also filed a supporting affidavit to his bail application. I refer to his affidavit filed on 10 July 2018. He states the same reasons as those given by applicant Joshua Sugwi.

PROSECUTION

8. The prosecution opposes the bail applications. It relies on the affidavit of Constable William Kalava, the arresting officer (arresting officer), which was filed on 17 July 2018. The prosecution gives three (3) reasons why it says that bails should be refused. These reasons are provided for under statute namely section 9(1)(a), (c) and (g) of the Bail Act. Let me set them out herein before I consider the arguments.

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; or

.....

(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; or

.....

(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; or

9. In relation to section 9(1)(a), the prosecution submits this. It says the applicants’ addresses indicate that they are visitors of East New Britain Province and as such they are likely to abscond if they are granted bail. The argument is supported by the depositions of the arresting officer. At paragraphs 3, 4, 6 and 7 of the arresting officer’s affidavit, he deposes and I read:

3. That the two applicants and others, arrived in East New Britain Province (ENBP) from West New Britain Province (WNBP), prior to the commission of the 3 crimes, and prior to and at the time of the commission of the 3 crimes, they were spending their holiday-time in ENBP with relatives.

4. That their permanent place abode is WNBP, and not ENBP.

.....

6. That the place in which they were living in ENBP at the time of the commission of the 3 crimes, was not made clear to the Police, until today.

7. That it would be difficult for the Police to locate them, should they abscond bail because, they do not have any permanent place of abode in ENBP and their ease of access to WNBP via the New Britain Highway.

10. In relation to section 9(1)(c), the prosecution submits as follows. It points to the INFORMATION and Summary of Facts and submits that violence and offensive weapons had been allegedly used in the robbery. It submits that during the time of the alleged robbery, guns were pointed at the public at large. It submits that bush-knives were also allegedly used. It submits that two (2) people were allegedly assaulted in the robbery.

11. In relation to section 9(1)(g) of the Bail Act, the prosecution submits theses. It refers to the INFORMATION or the charges that were laid against the applicants. It submits that the total value of the goods that were allegedly stolen namely, cash, mobile phones, and flex cards which were valued at K22,925.90, have not been recovered to date. As such, the prosecution submits that if the Court is minded to grant bails, it is likely that the applicants may take steps to conceal or deal with the alleged stolen properties. The prosecution also refers to paragraph 5 of the arresting officer’s affidavit where he has said in party, “the stolen-money and other stolen-property, have not been recovered, until today”. In conclusion, the prosecution submits that bails should be refused.

COURT’S POWER

12. The Court’s power to grant or refuse bail is discretionary. See cases: Re-Fred Keating [1983] PNGLR 133; Joyce Maima v. The State (2008) N3611.

ASSESSMENT

13. I am inclined to uphold the objection by the prosecution. The applicants’ evidence in my view are not convincing. In fact, their counsel, in her submissions, did not provide any rebuttals to or reasonable explanations in relation to the three (3) grounds which the prosecution had cited and had alleged against the applicants. Let me elaborate.

14. In relation to ground 1 under section 9(1)(a) of the Bail Act, I am persuaded by the evidence of the arresting officer which was that the applicants had visited East New Britain Province at the time of the alleged robbery and at the time of their arrests. It seems that they both reside in West New Britain Province. I also take into account the fact that their current location address is not clearly established.

15. I also find that the prosecution has sufficiently satisfied ground 9(1)(c) of the Bail Act. The evidence of the arresting officer, the INFORMATION and the Summary of Facts say that the two applicants with others were armed with dangerous weapons namely homemade shotguns and bush knives; that they had used actual violence to allegedly commit the three (3) robberies at Kerevat on 9 November 2017.

16. In relation to ground 9(1)(g) of the Bail Act, again, I am persuaded by the evidence that have been adduced by the prosecution, that is and again I refer to the affidavit of the arresting officer. He deposes that the large sums of monies and goods that were stolen from the alleged robbery have, as at the date of swearing his affidavit, not been recovered. The implication the prosecution has asserted is that if the applicants were to be released, it is likely that they will take steps to conceal or tamper with the stolen money or goods. The applicants have offered nothing in response to this claim either by evidence or through submissions by their counsel.

17. Finally, I refer to the applicants’ claim that the Kerevat Jail was overcrowded and that it was unhealthy to live in. Firstly, I find no evidence to support these two (2) allegations. Secondly, I do not find them as good or valid reasons. I have addressed these in my decision in the case of Eremas Matiul v. The State (2016) N6324. At paragraph 14, I stated and I quote:

14. I think this is now the appropriate time for me to address what I would term as misconceived submissions I have observed from parties in some of the bail applications that I have come across including this case. What is the misconception? It is to do with the Court's role and the role of the Correctional Service and the Royal Papua New Guinea Constabulary. In my opinion, the Court's role in criminal proceedings is to make findings of and deliver justice, which include determining whether to acquit, imprison or fine accused persons or prisoners. To be precise and on point, if the Court finds that bail should be refused in a matter, it should not be influenced by and change its decision based on submissions that the prison or cellblocks are overcrowded with inmates or prisoners. In my opinion, overcrowding in prison is not a relevant reason that can be used in a bail application whether it be under section 10 or 11 of the Bail Act. Further, I note that it is not the Court's role to, before deciding whether to grant or refuse bail, check and see first if there is space available at the prison or cellblocks. If that were to be the case, in my opinion, it would compromise impartiality towards delivery of competent decisions in bail applications. The simple fact of the matter is there are already established institutions under the Constitution and that responsibility (i.e., of addressing overcrowding in prison or cellblocks) is theirs to address. When I say 'theirs' I am of course referring to the Correctional Service and the Royal Papua New Guinea Constabulary. I also note that there are separate Court processes such as the Human Rights Courts that are available to address issues such as over-crowding in prisons, or if for example the prison or cell facilities are unsuitable for human use or occupation. But of course due processes must be followed to address or achieve these.

18. I adopt and apply these reasoning herein.

SUMMARY

19. I am therefore satisfied on reasonable grounds that the prosecution has established grounds 9(1)(a), (c) and (g) of the Bail Act. That being the case, I am disinclined to exercise my discretion and grant the two (2) bail applications.

ORDERS OF THE COURT

20. The bail applications are refused.
________________________________________________________________
Office of the Public Solicitor: Lawyer for the Applicants
Office of the Public Prosecutor: Lawyer for the State