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Nere v State [2024] PGNC 49; N10696 (8 March 2024)

N10696

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA (APP) No. 53 OF 2024

ANDREW NERE
Applicant

V
THE STATE
Respondent

Waigani: Miviri J
2024 : 08^th March

CRIMINAL LAW – PRACTICE & PROCEDURE – Bail Application – Section 6 Bail Act – Section 444 (1) CCA – S9 (1) (c) (i) (ii) & (f) Bail Act – Objection to Bail – Guarantors – Nil – Breach of Bail – Serious Offence – Bail Refused Remanded.

Facts

Accused was charged with an offence whilst on bail for another offence. He has been remanded pursuant.

Held

1. Breach of Initial Bail granted.
2. Further charges laid.
3. No Guarantors.
4. Bail Refused Remanded.
   

Cases Cited.
State v Kikala [2023] PGSC 15; SC2355 (22 February 2023)
Lester v The State [2001] PGNC 148; N2044 (22 January 2001)

Counsel:
L. Pitpit, for the State
L. Siminji, for Applicant

RULING

08^th March 2024

1. MIVIRI J: This is the ruling on an application for bail by Andrew Nere of Nuku who has been charged with section 444 Malicious Injuries general. He has been remanded because he has breached bail which was granted in this offence.
   
2. His application is made pursuant to the Bail Act Section 6, that bail be granted pending the charges which have now been committed to the National Court in Vanimo. He has deposed an affidavit in addition to the filing of the bail application form 1. He is 46 years old from Mai village in Nuku West Sepik Province. He lives at the Works Compound in Vanimo. He is self employed of the Lutheran Faith. And was committed to stand trial in the Vanimo National Court as of the 22^nd February 2024. He reasons that he has a Construction company that he runs which is jeopardized in its business because of his incarceration now. Furthermore, he has a sick mother with a medical report attached on whose behalf he be granted bail. And his immediate family who depend on his earnings for their upkeep and survival.
   
3. In addition to the Bail Form details he has filed an affidavit in support of this application sworn of the 29^th February 2024 and confirmed his details in the Bail Application form set out above. He is married with children. He attaches Annexure “A1” and “A2” true copies of the Police information in his case. He also attaches annexure “B” true copy of the Police Bail granted in the sum of K 1000.00. That the breach of bail is pursuant to an allegation that he has breached the condition of his bail by committing another offence whilst being on bail. That he interfered with a state witness, one Tommy Nere and destroyed his properties. He attaches the copy of the witnesses list in his committal file which does not bear the name of this person as a witness of the State.
   
4. Importantly he attaches annexure “D” court’s ruling in revoking his bail granted earlier. That decision does not attach and forms its decision from a new information in addition to the earlier that the police have laid as basis for the revocation. It reasons that it is not bound to apply technical rules of evidence but will act on what material is brought before it. It is and will be the basis for the revocation of the earlier bail granted. That is what is set out in the bail Act and there is no error in the way the Magistrate has set out to determine that application. The affidavit of Police Informant filed of the 07^th March 2024 does not have the new information charging the applicant as annexure. He simply attests that “On Monday 04^th of March 2024 the applicant was charged at CIS goal with two (2) more counts of wilful Damages pursuant to section 444 (1) each of the Criminal Code and (1) one count of breach of bail Conditions pursuant to section 28 of the Bail Act Chapter 340 in addition to his current charge of Wilful Damage. The applicant will appear on Vanimo District Court on Friday 08^th March 2024 to answer his alleged offences he had recently being charged with.”
   
5. It is obvious that the police have processed the applicant with two new set of charges information which will come before the District Court by this affidavit by the informant. It makes no sense for a police informant to swear that fact in an affidavit unless it is the truth. The fact that there is no information either of the breach of bail or the new offence of wilful damage does not in my view effectively grant that the application be granted. It does not in my view weaken the reasoning of the learned Magistrate in refusing bail. He was not entitled to view it strictly on and by the technical rules of evidence. He was entitled in law to do as he did section 9 (2) of the Bail Act. He did not fall into error in revoking bail setting it aside and remanding. He was entitled to do as he did in law. That means to overcome the applicant must demonstrate that it can be guaranteed he will not fall into similar should the application be granted here.
   
6. Because even then the allegations raised are serious and it makes perfect sense to have the application succeed with guarantors pledging to ensure there is no repeat should bail be granted here. This application is without the condition that he has guarantors pledging to ensure his maintains his behaviour whilst on bail. Who are presumably leaders or persons of repute and standing in the community to make this happen: State v Kikala [2023] PGSC 15; SC2355 (22 February 2023). Until that happens, he will remain in custody. He can make that application anew. For now, the application is refused he will remain in custody forthwith.
   
7. Bail is a right coming with obligations upon both the applicant and the Court. “I do not believe that it was intended that bail should be granted without regard to the question of whether or not the applicant for bail will ever answer bail until excused by the Court in the due course of time and process. Indeed, s. 9 of the Bail Act does have provisions relating to that issue. The practice of calling for guarantors and people giving guarantees and undertakings to ensure bail conditions being met seem is in line with that. Yet those who have been giving such guarantees and undertakings have not been serious with their undertakings and or guarantees perhaps because of the penalty or the consequences they stand to face appear not to be serious. It is high time now for cash bails and sureties to be increased upward to the thousands to give some seriousness and importance to the need to meet bail conditions. If most other jurisdictions impose such higher conditions, I see no reason why the level of cash bails and sureties should not be increased in our jurisdiction to either eradicate or minimized the number of bail jumpers.
   
8. I do appreciate that some may argue that imposing such terms may in effect amount to a refusal of bail because of inability of offenders to raise the amounts required and therefore a breach of the Constitutional right to bail. Such an argument has to be view in the overall interest of the society and serious negative impacts crime in general is having on our society. One should also need to consider the large number of people breaching bail terms after the police have done their best in apprehending offenders and bringing them before the courts. Granting bails without any regard to the difficulties and expenses the society through the police go through to bring offenders to the Courts would amount to injustice to society for the sake of an offender. The courts are required to administer justice and it behoves the courts to consider and take such issues into account before granting bails in the interest of justice not only from the perspective of an offender but also the society, which are not necessarily the same, Lester v The State [2001] PGNC 148; N2044 (22 January 2001).
   
9. The allegation of wilful damage set out by annexure “A2” of his own affidavit are very serious. He is drunk in a speeding vehicle that is used to ram down the gate of the victim supported by soldiers in uniform in another vehicle clearly marked out with Defence colours. His allegations against police not equal to their task and that he has the army on his side is clearly serious when viewed in the light of section 9 (1) (b) (c) (i) (ii) and (f) of the Bail Act. It makes sense for the Learned District Court Magistrate to have revoked bail as he did. Then the allegation of his involvement in breach of bail by the commission of another offence due to be heard on Vanimo District Court on Friday 08^th March 2024 per the affidavit of the Police Informant is serious. There must in my view be guarantors to ensure that what is set out here is avoided at all costs should bail be granted. For the present there are no guarantors pledged in support of the application. It remains bare and will be refused. And the orders of the district Court will be confirmed that he remains as he is revoked of the cash bail remanded until the call over of the National Court in Vanimo.
   
10. The aggregate is that the application is refused the applicant remains remanded forthwith. A remand warrant will be issued forthwith for his remand at the Vanimo Corrective Institution forthwith.
    

Ordered accordingly.

______________________________________________________________
Public Prosecutor : Lawyers for the State
Ponepai Lawyers : Lawyers for the Defendant