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Tozmi v State [2022] PGNC 179; N9607 (10 May 2022)

N9607

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 544 OF 2022

In the matter of an Application for Bail Pursuant to Section 42 (6) of the Constitution and Section 4 and 6 of the Bail Act Chapter No. 340

BETWEEN:
RUSSEL TOZMI
Applicant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Ganaii, AJ
2022: 06^th, 09^th, 10^th May

BAIL – Charge of Armed Robbery – Section 386 of the Criminal Code – Presence of Section 9 Considerations - Education as a ground for seeking bail is not sufficient and adequate - Bail refused

Cases Cited

Felix Kange v The State (2016) SC1530
Fred Keating v The State [1983] PNGLR 133
Moduwa v State [2020] PGNC 433; N8603
Philip Maru & Arua Oa v The State ( 2001) N2042
Safinko Eric v State [2012] N4755
Yausase v The State (2011) SC1112

Legislation

Constitution, Section 42 (6)
Criminal Code Act, Chapter 262 of 1974
Bail Act, Chapter 340, Sections 4, 6 and 9
Bail Rules 2021

Counsel

Ms S. Suwae , for the State Respondent
Mr J. Kolowe, for the Applicant

DECISION ON BAIL APPLICATION

10^th May, 2022

1. GANAII, AJ: This is a ruling on an application for bail brought pursuant to section 42 (6) of the Constitution and ss 4 and 6 of the Bail Act. The accused is charged with one count of Armed Robbery contrary to s 299 of the Criminal Code. The maximum penalty for this offence is death.
   

Allegations

2. The allegations are that on the 30^th of January 2022, at Erima, NCD, the applicant was in the company of another person and armed with a home-made gun. They held up a foreign national at gun point, who was driving by in his vehicle. The complainant stopped his vehicle when he was held up. He was robbed off cash monies and personal effects totalling to K12, 500 in value. The dashboard camera of the complainant’s vehicle captured the robbery as it was in progress and in their investigations, the Police apprehended the applicant. Upon apprehension, the applicant admitted to being the person caught on camera. He was arrested and charged for the offence of aggravated Robbery.

Ground for seeking bail

3. The applicant relies on Form 1 of the Bail Rules 2021. His only ground for seeking bail is that he is a student attending Iarowari Agro Technical Secondary School and his learning will suffer if his bail is denied.

4. Other matters for consideration are that the applicant undertakes to pay bail in the amount of K500 and will reside at his addresses made known to the Court, which is at Section 117; Allotment 58, Erima, NCD, opposite the Funeral Home. The applicant has provided details of two of his nominated guarantors nominated who are persons of standing in the applicant’s community. The guarantors are a community leader and a local Foursquare Gospel Church Pastor. They have made appropriate declarations in Form 1.

5. Mr. Kolowe informed the Court that the matter is pending committal and the investigations are continuing.

State’s Objection

6. State objected to grant of bail and relied on Form 3 of the Bail Rules 2021. Whilst State acknowledged that bail is a right available to the applicant at all times, the considerations under Section 9 (1) (c) of the Bail Act are present, namely that there is threat of violence and use of dangerous weapons.

7. In response to the grounds relied on by the applicant in seeking bail, State argued that such a ground is not proper. State submitted that there is sufficient case law on this.

Issue

8. Issue is whether bail should be granted in the circumstance.

Law

9. The applicable legal provisions are section 42 (6) of the Constitution and section 4, 6 and 9 of the Bail Act. Section 42 (6) states:

‘’A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.” Section 3 of the Bail Act give effect to s 42 (6) of the Constitution”.

10. The Constitutional provision (s 42 (6)) avails bail at all times to all persons charged with a criminal offence except for wilful murder and treason

11. Section 9 (1) (a) – (j) of the Bail Act sets out the grounds on which bail
may be refused if one or more of the considerations is present. However, the guidelines under s 9 is not exhaustive as there are other considerations such as the interest of justice to refuse bail or discretion of the bail authority to grant bail if exceptional circumstances can be shown by the applicant. See Re: Fred Keating (1983) PNGLR 133.

12. If the State opposes bail, it should establish that one of the circumstances in Section 9 (1) of the Bail Act apply. His Honour Kandakasi J (as he then was) in the case of Philip Maru & Arua Oa -v-The State (2001) N2042 stated that the Bail Authority can take into account other and further considerations apart from those in section 9 (1) and listed a number of them. In Felix Kange v The State (supra), the Supreme Court endorsed those additional considerations that the Bail Authority can take into account.

13. If one or more of the circumstances in Section 9 (1) apply, the Court is
not obliged to refuse bail. The Bail Authority still has a discretion whether to grant or refuse bail.

14. The onus is on an applicant to show that his continued detention is not justified.

Application

15. I am well guided by the wisdom of the reasonings in Safinko Eric v State [2012] N4755 and Moduwa v State [2020] PGNC 433; N8603 (25 August 2020). The Courts in these cases held that whilst it is agreed that education is an important tool in one’s life, being held in a remand facility for a serious offence should not adversely affect education. Correctional Institution Officers are charged by law with the responsibility not only of ensuring the safety and well-being of all inmates but to have processes in place to facilitate their responsibility under sections 7, 13 and 67 of the Correctional Services Act 1995. Education for detainees is one such responsibility that is well catered for within the parameters of the Correctional Services Act 1995 and CIS must comply with this. Consequently, the ground relied on is not adequate.
16. Upon further consideration, I am mindful that the letter from the principal of the applicant’s school does not only say he is a current student, but it indicates that the applicant is yet to do payments for his school fees. That fact raises the concern that the applicant may not be allowed to continue his education if his fees are not paid, as if often the situation in this country. This fact will affect the applicant’s status as a student.

Conclusion

17. I am not satisfied that the grounds advanced are sufficient and adequate. I refuse bail.
Order

19. Bail is refused.
_____________________________________________________________
Public Prosecutors: Lawyers for the State
Public Solicitors: Lawyer for the Applicant