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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
MP 748 OF 2009
In the matter of an application for bail made pursuant to section 42(6) of the Constitution and sections 4 and 6 of the Bail Act
BETWEEN
LANCE MOHA
Applicant
AND
THE STATE
Respondent
Waigani: Kariko J
2009: 11, 17 December
CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application – Offence of accessory after the fact to a crime – Allegation that applicant assisted a suspect of two major bank robberies – Need to produce evidence – Evidence from the bar table – Charge of accessory after the fact, section 519, Criminal Code – Whether the considerations under section 9(1)(c),(f) and (g) Bail Act relate to the alleged offence against the applicant or the principal offence – Whether any other facts and circumstances justifying the grant of bail – Relatives as guarantors.
Cases cited:
Re Herman Kagl Diawo [1980] PNGLR 148
Re Fred Keating [1983] PNGLR 133
Re Kou Dua [1984] PNGLR 22
The State v Roy Nana [1986] PNGLR 83
Re Application for Bail by Paul Louis Kysely [1980] PNGLR 36
The Matter of an Application for Bail by Sergeant Pokou Steven & Others v The State (1997) N164
The State v. Beko Job Paul [1986] PNGLR 97
Tamara Player v The State (2009) N3613
Jesse Suah & Samuel Job v The State (2009) N3655
Charlie Posanau & David Koyama v. The State SCAPP. Nos. 2 & 3 of 2009 (Unnumbered Judgement dated1st May 2009)
Counsels:
F Kirriwom, for the Applicant
J Sebby, for the Respondent
17 December, 2009
1. KARIKO J: The applicant has been committed to stand trial on a charge of being an accessory after the fact to a crime contrary to section 519 of the Criminal Code, whereby it is alleged that on 18 July 2008 he and others were part of a vehicle convoy which included the main suspect in the bank robberies of the BSP branches at Madang and Kerema committed in June and July 2008. It is alleged that the applicant and others alerted the vehicle that carried the suspect resulting in that vehicle trying to escape a Police roadblock.
2. The applicant applies for bail pursuant to section 42(6) of the Constitution and sections 4 and 6 of the Bail Act. In this judgement, unless stated otherwise, the statutory provisions noted or referred to are the provisions of the Bail Act.
The Law
3. The law concerning the right to bail has been clearly stated in many cases. Section 42(6) of the Constitution entitles "a person arrested or detained for an offence (other than treason or wilful murder as defined by an act of Parliament) . . . to bail at all times from arrest or detention to acquittal or conviction unless the interest of justice otherwise requires". An applicant is entitled to bail which must be given readily: see Re Herman Kagl Diawo [1980] PNGLR 148. The Bail Act gives effect to Section 42(6) of the Constitution, and in section 3 this constitutional right to bail is emphasized, while section 6 provides that a bail application can be made at any time after a person has been arrested or detained or at any stage of a case. There is therefore a strong presumption in favour of an applicant being allowed bail.
4. Starting with the Supreme Court in Re Fred Keating [1983] PNGLR 133, it is now settled law that bail should not be declined unless at least one of the criteria listed under section 9(1) is established. Even where one or more of the considerations under section 9(1) is shown to exist, the court still has a discretion whether or not to grant bail, with the applicant bearing the onus of satisfying the court as to why his detention in custody is not justified: see also Re Kou Dua [1984] PNGLR 22.
Objection to bail
5. In his submissions, counsel for the applicant anticipated that the State might object to bail on the basis of section 9(1)(c) and (g) and indeed the State, in opposition to the application, raised these grounds plus section 9(1)(a) and (f).
6. Section 9 reads:
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
(b) that the offence with which the person has been charged was committed whilst the person was on 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
(d) that the person is likely to commit an indictable offence if he is not in custody; or
(e) it is necessary for the person's own protection for him to be in custody; or
(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings; 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
(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act against the person in custody; or
(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; or
(j) that the alleged offence is one of breach of parole.
(My underlining)
(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.
Ground – section 9(1)(a)
7. The State as respondent firstly submitted that the applicant has no fixed residence and is therefore likely to abscond and not appear at his trial. But no evidence was presented to support this submission. On the contrary, the applicant and his mother deposed to affidavits that if granted bail, he will reside with his mother at her home at Section 227 Allotment 163 Tokarara, National Capital District. I am not satisfied on reasonable grounds that the ground under section 9(1)(a) has been made out.
Ground – section 9(1)(c)
8. In its submission, the State argued that the principal offence were the armed robberies which obviously involved serious assaults, the threat of violence and the use of offensive weapons.
9. There are two issues with this submission:
10. While section 9(2) provides that the strict technical rules of evidence is not required, I am of the view that this section does not mean that no evidence is required. It is necessary that evidence is produced so that a bail authority can be "satisfied on reasonable grounds" as to those considerations comprising section 9(1). Because strict rules of evidence is not required, witnesses statements and documents could be handed up in court without being in the form of or being attached to affidavits for example and these statement may well include matters that would otherwise be objectionable, such as hearsay evidence. But I do think that section 9(2) intended that evidence from the bar table is sufficient. Otherwise, applications for bail could merely consist of submissions only without any evidence.
11. The offence contemplated by section 9(1)(c) must be "the offence in respect of which the person is in custody". It is clear that "the offence" to be scrutinized is the offence for which the applicant has been charged and remanded in custody. It does not include another offence (related or not to the offence with which the applicant has been charged) nor does it mean to include another offence for which he has been charged. This is clear from a plain and ordinary reading of the provision.
12. I would also suggest that other cases where there is a principal offence such as receiving stolen property (section 410 of the Criminal Code), the relevant offence to consider when deciding on section 9(1)(c) would not be the offence by which the property was first obtained, say an armed robbery.
13. In the present matter, the applicant is not charged with the armed robberies of the BSP Banks in Madang and Kerema but the offence of being an accessory after the fact to those crimes. The relevant provisions of the Criminal Code relating to the charge against the applicant are sections 10 and 519:
10. Accessories after the fact.
(1) A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is an accessory after the fact to the offence.
519. Accessories after the fact to crimes.
A person who becomes an accessory after the fact to a crime is guilty of a crime.
14. An accessory after the fact is not criminally responsible for the principal crime. Rather, as was held in The State v Roy Nana [1986] PNGLR 83, he is criminally liable for doing some act in order to enable or assist the principal offender escape detection or punishment.
15. What then is the alleged act or acts constituting the offence under section 519 of the Criminal Code in respect of the present matter? The only evidence properly before me is the Statement of Facts attached to the applicant’s affidavit, the relevant part of which reads:
SUMMARY OF FACTS
The defendants now before the Court on Thursday night the 18th of July 2008, were along the Magi Highway in a convoy of three vehicles.
Police received a tip-off that the wanted suspect William Kapis Nanua was travelling to Aroma in this three convoyed Vehicles.
.................................................................
The wanted suspect and four others after being alerted of police presence at Kwikila by the first two vehicles turned back towards Port Moresby in a Toyota Landcruiser white in colour registration # BCK 201 where the first surveillance team had set up a road block and apprehended the wanted person William Kapis Nanua with three male and a female suspect.
16. The Information charges the applicant that he "knowing that William Kapis Nanua, had on the 17th June and on the 05 July 2008, did commit arm robberies at the BSP Bank Kerema and Madang branches, did assist him in order to enable him to escape punishment."
17. I gather from the Summary of Facts that the alleged acts constituting the charge against the applicant are that:
18. I cannot see how these acts constitute any of the circumstances described in section 9(1)(c). The respondent has therefore not properly established this ground.
Ground – Section 9(1)(f)
19. The State has also objected to bail relying on section 9(1)(f) – that the applicant is likely to interfere with witnesses. In the case of Re Application for Bail by Paul Louis Kysely [1980] PNGLR 36, it was held that "likely" in section 9(1)(f) means likely in the sense of a tendency or a real possibility. Both counsels advised the Court that the witnesses in this present case comprise only policemen. When I queried how it is suggested that these witnesses might be interfered with, counsel for the respondent replied that it is not these witnesses the State is concerned with but rather the witnesses to the bank robbery cases.
20. No evidence was adduced to form the basis of this objection, except for counsel’s claim that the applicant might interfere with the witnesses.
21. Again, it is clear that on a plain and ordinary reading of section 9(1)(f), "witnesses" necessarily refers to the witnesses in respect of the charge against the applicant. This provision is concerned with interference with "witnesses or the person who instituted the proceedings" (my underlining). The proceedings must be those that relate to the charge against the applicant and it must logically follow that the witnesses must be witnesses in respect of the charge against the applicant. The section cannot be interpreted to mean the witnesses in the principal offence or any other witness. Such a construction would render an absurd result and would not be in accordance with the intent of the provision.
22. I am not satisfied that the ground under section 9(1)(f) has been made out.
Ground – Section 9(1)(g)
23. The State also submitted that the principal offence (the BSP Bank robberies) involved the theft of a significant amount of money, yet to be fully recovered. It was suggested that if released on bail, the applicant might somehow deal with the money.
24. Once again, no evidence was produced in support of these submissions.
25. In any case, section 9(1)(g) relates to "the alleged offence", and from the plain reading of it, the reference is to the offence alleged against the applicant, which is the charge under section 519 of the Criminal Code and no other, including the principal offence. I should add here that this interpretation similarly applies to the criteria spelt out in section 9(1)(i) and (j).
26. I therefore find that the respondent has also not made out the ground under section 9(1)(f).
27. Since I am not satisfied that any of the considerations set out in section 9(1) of the Bail Act exist, I am obliged to grant bail to the applicant.
Other considerations
28. But I acknowledge that section 9(1) does not contain an exhaustive list of matters a bail authority can take into account to decide whether or not to grant bail. There may be other factors or circumstances that should be considered to determine if "the interest of justice otherwise requires": See The Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State (1997) N164, per Akuram AJ and The State v. Beko Job Paul [1986] PNGLR 97, per Wilson J.
29. Are there other factors and circumstances that I should consider before granting bail in the present application?
30. Counsel for the respondent submitted that bail should be refused because other co-defendants had been denied bail. There was again no material presented to the court to support this submission. My immediate reply to counsel was that each bail application must be considered on its own merits and the refusal of bail to one accused does not automatically disqualify a co-accused being allowed bail.
31. After adjournment to consider my decision, I located two unreported judgements concerning bail applications by other persons charged with being accessories after the fact to the same BSP Bank robberies at Madang and Kerema: Tamara Player v The State (2009) N3613, per Batari J; Jesse Suah & Samuel Job v The State (2009) N3655 per Paliau AJ., where bail was refused.
32. In Tamara Player v The State (supra), the allegations against the applicant were that K127,000 was found in her possession and Police also recovered from her home police uniforms firearms and ammunition. In support of its objection to bail, the State tendered an affidavit including a statement from the police investigator. His Honour Batari J upheld the objections under section 9(1)(c),(f) and (g) because they were established in relation to the principal offence, that is, the BSP Bank robberies. Given my earlier discussions of these provisions, I respectfully disagree with his Honour’s decision regarding them. As I concluded, the offence alluded to in section 9(1)(c)(f) and (g) necessarily refers to the offence for which the applicant is charged and no other, including the principal offence.
33. In Jesse Suah and Samuel Job v The State (supra), the allegations against the applicants were the same as against the present applicant. Unlike the present case however, the State in opposing bail, tendered affidavit evidence including a statement from the police investigator. The State also relied on section 9(1)(c),(f) and (g) in its objection to bail. Paliau AJ approved and relied on the decision in Tamara Player v The State (supra) and refused bail. Again, I respectfully disagree with His Honour’s decision on section 9(1)(c),(f) and (g).
34. In Tamara Player v The State (supra), Batari J referred to the enormity and serious nature of the bank robberies and the extent of the applicant’s assistance and concluded that:
"These considerations in my view are sufficient to negative the presumptive right to bail under s. 42 (6) of the Constitution and the Bail Act. In my view, the nature of this case falls into a classic statement by Wilson J in The State v. Beko Job Paul (supra) which I adopt that, "the interests of justice are not served by failing to give special significance to this type of crime and the consequences that flow, or could flow from it"."
35. As I noted before, the alleged involvement of the applicant in the matter before me is significantly different to that of the applicant in Tamara Player v The State(supra), which included possession of arms. In any case, there is no evidence upon which I can properly conclude that the proposition quoted from The State v Beko Job Paul (supra) applies. I also hasten to add that the crime referred to by Wilson J was the crime for which the applicant was charged, so the circumstances he was considering related to the nature of that charge, which concerned a break and enter with intent to steal police arms.
Conclusion
36. In the end, I uphold the application and grant bail with conditions including two guarantors. One of the proposed guarantors is the mother of the applicant. I am mindful of the view expressed by the Supreme Court in the case of Charlie Posanau & David Koyama v. The State SCAPP. Nos. 2 & 3 of 2009 (Unnumbered Judgement dated1st May 2009) in relation to guarantors who are related to applicants:
"We have noted that, the proposed guarantors are all related to the two applicants. We are of the view that there may be some apprehension of bias and conflict of interest involved. The risk of absconding bail would be much higher as compared to a guarantor who was a natural person..."
37. The applicant’s mother has been a teacher of 34 years, is a graduate of the Maranatha Bible School, and National Leader of the Pentecostal Missionary Church of Christ. And as I mentioned earlier, she has a house at Tokarara. Although she is a relative of the applicant, I consider her to be an acceptable candidate to be a guarantor for bail.
Order
38. Orders are:
_________________________________
Public Solicitor: Lawyer for the Applicant
Acting Public Prosecutor: Lawyer for the Respondent
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