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Dukpio v State [2023] PGNC 124; N10245 (10 May 2023)

N10245

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA (APP) NO. 174 OF 2023

CLIVE DUKPIO
Applicant

V

THE STATE
Respondent

Ialibu : Miviri J
2023 : 09^th & 10^th May

CRIMINAL LAW – PRACTICE & PROCEDURE – Bail Application Section 42 (6) Constitution – Section 4 & 6 Bail Act –Section 386 Aggravated Armed Robbery & Section 300 Murder & Section 383 Unlawful use of Motor Vehicle CCA – S9 (1) (c) (i) (ii) (iii) & (e) Bail Act – Objection to Bail – Medical Report – Administered Treated Sufficiently No Alarm – New Contract of Employment – Not Exceptional – Guarantors No Guarantee Static in One Area – Bail Refused.

Facts
Accused is charged with aggravated armed robbery whilst armed with M16 Rifle in the course of which one of the victims was killed. And the vehicle of the victims was stolen by them with accomplices and they escaped. A total of K 326, 000.00 worth of cash and properties were stolen.

Held
Serious use of Firearm
Medical Treatment current.
Work not clear by Evidence.
Death of Victim Deceased
K 326, 000.00 Properties Stolen.
No Evidence of Static address on Work.
Unreliable Guarantors.
Interest of State & Bench Warrant List.
Application refused remanded CIS.

Cases Cited.

Diawo, Re [1980] PNGLR 148
Lester v The State [2001] PGNC 148; N2044
State v Paul [1986] PNGLR 97
Walami v State [2021] PGSC 100; SC2182
Re—Fred Keating [1988] PNGLR 133

Counsel:

P. Tengdui, for the State
Joshua John, for Applicant

RULING

10^th May, 2023

1. MIVIRI J: This is the ruling on an application for bail by the applicant charged with Aggravated armed robbery pursuant to section 386 (1) (2) (a) (b) (c) of the Criminal Code. Further he is charged with murder pursuant to section 300 (1) (a) and also unlawful use of motor vehicle pursuant to section 328 of the Criminal Code.
   
2. The application is made in reliance upon section 42 (6) of the Constitution which allows for a person arrested or detained for an offence as is the case here as being entitled to bail at all times. That is from arrest, detention to acquittal or conviction as the case maybe. Unless the interest of Justice otherwise requires. Here is armed robbery, murder, and unlawful use of motor vehicle so bail is entitled the applicant. As it is not a case of wilful Murder so he is entitled to bail. And that is reinforced by section 4 of the bail Act which empowers only the National Court to consider and grant bail in cases of offences that it sets out therein. Murder and armed robbery are included as offences that only the National Court can grant bail as is the case here. Which includes offences that are perpetrated with the use of firearms as in the case of armed robbery as here. So effectively the applicant is well to come here to plea for bail by his application. And it is reinforced by section 6 of the Act, that he can make the application at any time. But in making that application it is subject to section 9 of the Act as to the grant or refusal of Bail, section 6 (3) of the Act.
   
3. So, for the application of the applicant to succeed the Court must be satisfied on reasonable grounds as to one or more of the considerations set out by section 9 of the Act. Which says;- 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.”

4. Clearly the most relevant would-be section 9 (1) (c) (i) (ii) (iii) of the Bail Act, because the affidavit in support sworn of the 2^nd May 2023, filed of the 04^th May 2023, attaches annexure “A” the information and the statement of facts in respect of the charges for which he is in custody. That information laid as of the 06^th April 2023 by Detective Inspector Timothy Wapi of Mendi Police Station is as follows, that on the 27^th day of March 2023 at Anga Along the Mendi Hagen Road, Clive Dukupio Kundir with 7 others also named did each and severely by actual violence, namely punching, dragging and hitting, stole properties namely a vehicle valued at K300, 000.00, a laptop valued at K2000, a hard drive at K500, a mobile phone valued at K 1500, cash money K22, 000, altogether valued at K326, 000.00 all the property of John Onguglo whilst armed with dangerous weapons, namely M16 rifle and bush knives, while in company of one or more other persons, and immediately before and after the time of the Robbery wounded John Onguglo and Boi Nugai.
   
5. The facts on that information are that on Monday 27^th March 2023 between 3.00pm and 4.00pm, the defendants Patrick Molu Sel, Nelson Rex, Junior Rex Nopas, Jim Sap, Moses Kuns, Sakarias Petrus and Himson Amos Ropa were travelling in a Toyota Land cruiser white in colour bearing a false registration number HAU 645 toward the main Mendi Road towards Anga River, Imbongu Southern Highlands Province.
   
6. Applicant assisted these defendants with his motor vehicle Toyota land cruiser white in colour and registered number BFK 546. He went to Wogia and picked up the defendants Sakarias and Himson with another male and drove into Mendi Town. After dropping off the other male, they went to Metenda village in Mendi Town. There they picked up the defendants Patrick, Nelson, Junior, Jim and Moses Kuns. These defendants boarded the vehicle with a factory made M16 rifle. The defendant applicant Clive dropped off and handed his vehicle to the defendant Junior to drive. And they drove off following the Mendi Hagen Road.
   
7. And the victim John Onguglo the principle of the Southern Highlands Teachers College at Puril in Nipa District was driving a Toyota Land cruiser ten-seater white registered number HAW 956, towards Mt Hagen after he had done banking at Mendi BSP Branch. He was on his way to Mt Hagen to do some admin for the College. And he was travelling with the deceased Boi Nugai who was sitting alongside him in the crew seat. Almost a kilometre before reaching the Anga River Bridge, the defendants overtook him and drove ahead of him. They drove and quickly turned the vehicle driving back to the sharp corner before reaching Kalipe village. And when the victim drove up to that corner, the defendants drove across his lane blocking his vehicle. They stepped out of the vehicle and pointed the gun and bush knives at him. And they forcefully pulled him out of the vehicle landing him on the tar. They collected the vehicle key off him. And in that process the deceased was forcefully removed from the side crew seat and hit on the back of the head with a blunt object. After receiving that injury, he ran down the main road in fear being killed, jumped the roadside rail into the bushes nearby. He continued running further into the bushes in his attempt to escape when he fell down a cliff, landing himself face down on the stone in the Anga Riverbank.
   
8. Defendant Patrick got into the driver’s seat of the victim’s vehicle and drove back towards Mendi. And the getaway vehicle turned and drove towards Mt Hagen. The defendants stole that land cruiser white 10-seater registered number HAW 956 valued at K 300, 000.00, from the victim. Including cash money in the sum of K22, 000.00, a laptop valued at K2000.00, a mobile phone valued at K1500.00, a hard disk valued at K500.00. The total value of all was K326, 000.00. Defendants were about to move the stolen vehicle out of Mendi when Police intercepted and recovered it from Upper Mendi area.
   
9. And the defendant applicant was apprehended by Police whilst the seven (7) voluntarily surrendered to Police and were all arrested, cautioned, given their Constitutional Rights under section 42 (2) of the Constitution. They were charged with one count of armed robbery under section 386, (1) (2) (a) (b) (c) of the Criminal Code. And further with one count of murder pursuant to section 300 (1) (a) also of the Criminal Code. And also, unlawful use of motor vehicle pursuant to section 383 of the Criminal Code.
   
10. This is clear evidence falling under section 9 (1) (c) (i) (ii) (iii) of the Bail Act upon which bail can be refused here. Because an M16 Rifle was used in the holdup. Both victims are assaulted. One after the assault ran out of fear and fell over a cliff hitting his head and face on rocks below, died as a result. It is a very violent offence. And threats of violence coupled with a firearm a M16 rifle were used to steal from the victims. These facts set out above engulf that section set out above which is basis for the refusal of bail. And there is no evidence filed by the applicant that refutes what is set out by section 9 (1) (c) (i) (ii) (iii) of the Bail Act, and the evidence supporting here. And this view is supported by State v Paul [1986] PGNC 46; [1986] PNGLR 97; N537 (7 April 1986) where bail was refused because on the basis of section 9 (1) (c) (i) (ii) (iii) of the Bail Act. Further the interest of Justice was not served that the Applicant be granted bail because of the significance of the offence. It involved the stealing of arms from the Police Station Armory. Here in my view the gravity of the offence itself is more than enough in the interests of justice that bail be not granted.
    
11. Further the examining of his deposition in his affidavit that he is a known patient with chronic hypertension. And that he was diagnosed in 2020 and has been living with it. Annexure “B” is the medical book and also the medical report by Doctor Limbiye. He contends that his blood pressure escalates when he is under pressure. And that the detention is having detrimental effect on his health and well-being. That he vomited blood on the 03^rd April 2023 and was checked by a Male nurse. He has attached all his treatment and attendance at the hospital as annexure “B”. The medical report from the Southern Highlands Provincial Health Authority is in the following terms; “To Whom It May Concern. Re Medical Report for Cliff Dukpio Tonomy-M 37 years. This is to certify that the above patient was seen and treated several times since 2020. He medical record show that he has been treated for chronic Hypertension with Anti Hypertension Drugs from time to time. His blood pressure while on Anti- Hypertension Drugs is 160/95mmhs. His blood pressure seems to be elevated especially when he is in stressful conditions. He is still undergoing treatments and diagnostic investigations under our closer care and monitoring. Yours faithfully, Dr. R Limbiye CMO -ED/MPH SHPHA.
    
12. It is undated but has an official receipt issued of the 25^th April 2023. Which is evidence that even from where he is, he can seek medical attention and treatment for his condition. His being in custody is not a barrier to his medical treatment and assistance. He even has the money to pay, here the official receipt is for K 100.00. That is clear evidence of accessibility to treatment for his condition. Which is clear that he is being treated and managed by Doctor R Limbiye in his condition. And that he is under the eye of that professional who is managing his health in the complaint that he has lodged. Because he is clearly undergoing treatment and diagnostic investigations under closer care and monitoring. It is not as if he is losing out and will forfeit his life as a result. Because he deposes to treatment and had enclosed a medical book with entries depicting that his health and condition are very well taken care of. He is under no threat in any way or form as set out by the Doctor and the entries made in the treatment. The report does not state that he must be taken out of custody, or he will risk losing his life. Rather the contrary that he is being cared for medically and managed.
    
13. This evidence is a sure sign that the Corrective Institution is well aware of his need and are managing that from where he is, so that his health is not in jeopardy. It is not a case where his health is neglected to his detriment and demise. He has been managed to ensure that his health is well looked after, Walami v State [2021] PGSC 100; SC2182 (22 December 2021). There is really no cause for alarm. And the fact by this evidence does not warrant that he be released based on it. Nor is it room for the consideration of bail so that he can get out of custody. It is without merit and fails. His application is not advanced in reliance on it.
    
14. Then he attaches a letter dated 30^th June 2022 from Placement PNG, annexure “C” to his affidavit. This is a letter that he received even before the present charge dated 06^th April 2023 of an allegation of the 27^th March 2023. June 2022 is almost 9 months ago and it is clear that he has forfeited that job if indeed he has secured it. Because there is no proof that he is indeed earning his keep from there. There is no pay slip evidencing payment therefrom. And better still there is no confirmation of his current status in the employment if indeed he is employed. And where on site is he actually working under whose supervision. That is not on file. What he has deposed to and attached is really of no consequence in the determination of his application. It is self-serving evidence and does not take his application to the balance to accord his plea. He does not demonstrate any weight to entice in favour of the application he makes. Not even the travel he takes as a consequence of that work is set out. As it is important to determine where he is if indeed bail is granted. There are two places set out in that annexure, Mt Hagen and Lihir. In both instances since June 2022 up to the date of his arrest and detention for the offence, there is no ticket butts or any evidence of his movement between his home in Mendi and those two places to evidence his movement back and forth. Which is necessary and fundament whilst on bail. Put together with the affidavits of the proposed guarantors, there really is no guarantee that his movement will be sufficiently monitored if granted bail.
    
15. Because the allegation levelled by the three charges are very serious. They involve the use of firearms, use of violent criminal act of aggravated armed robbery that has left K326, 000.00 worth of properties cash stolen and missing. And on top of that a life has been lost in that robbery. His role is significant as he supplied his vehicle to get that crime into successfully being executed. He is not a light matter in the allegation now before the Court. He is entangled in this web and cannot by the material that he relies on get out of that web.
    
16. And in this regard, the nominated guarantor Pastor Petrus Meng pledges that he will ensure that the applicant will reside at his new place of residence Map Village Mendi Munihu District Southern Highlands Province, paragraph 10 of his affidavit. It is the same pledge also in paragraph 10 by the second proposed guarantor Akon Peol who says by his affidavit of the 30^th April 2023 filed 04^th May 2023. In my view the applicant is not a young child who must be looked after by an adult. And this pledge is unrealistic when the applicant says he is employed by Placements that will take him out to Mt Hagen and Lihir. There is therefore really no guarantee that applicant will be static at one location. It is not a guarantee that will be observed in reality. It is a risk of to have both guarantors as pledging surety that he will appear from Bail. He is not firmed out to one location whilst on bail so it would be a risk to allow bail. This ground is without merit and fails against the applicant.
    
17. The State has seriously objected to the application on the basis of section 9 (1) (c) (i) (ii) (iii) of the Bail Act that a firearm was used a threat of violence to another and a serious assault. It relies on the evidence by the affidavit of Detective Inspector Timothy Wapi sworn of the 05^th April 2023, filed 05^th May 2023. He deposes that he is the officer in Charge of the matter. And confirms the charges that have been laid the applicant by him. And sets out the facts upon which the charge relate. He confirms the assault of both victims and one running away only to fall over a cliff and die as a result of the injuries received from the fall. He deposes that the Applicant will interfere with state witnesses, abscond bail and will not cooperate with the investigations.
    
18. Given all the discussion set out above, this is substantial grounds made out for the refusal of bail. Because “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. R384,” In Re—Fred Keating [1988] PNGLR 133. In my view the applicant is yet to convince that his application has the basis to be granted. And the interests of society also to deal with offenders once before the courts and therefore stricter and higher terms maybe imposed, Lester v The State [2001] PGNC 148; N2044 (22 January 2001). It is proper also to consider the long Bench Warrant list which must be addressed by properly screening applications for bail. Allowing bail must be based on surety, “Likely” that appearance is guaranteed Diawo, Re [1980] PNGLR 148 (4 July 1980). It is an exercise that will not defeat Justice.
    
19. Here it is a very serious and grave offence by the facts set out above. So, to release must have firm basis guaranteed, and that the applicant is by evidence showing basis that are real to allow the application. Here as set out above there really is no basis for the application to be granted. There is no merit in his application. And the application is refused. He remains remanded to await his case in court.
    
20. Application is refused, he remains remanded forthwith.
    

Ordered accordingly.
______________________________________________________________
Public Prosecutor : Lawyer for the State
Office of the Public Solicitor : Lawyer for the Defendant