The State v Tamara Player (2009) N3613

• Jurisdiction: Papua New Guinea
• Judge: Batari J
• Judgment Date: 17 March 2009
• Citation: (2009) N3613
• Docket Number: MP NO. 538 OF 2008
• Court: National Court
• Year: 2009
• Judgement Number: N3613

Full Title: MP NO. 538 OF 2008; The State v Tamara Player (2009) N3613

National Court: Batari J

Judgment Delivered: 17 March 2009

N3613

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NO. 538 OF 2008

THE STATE

V

TAMARA PLAYER

Waigani: Batari J

2009: 11, 17 March

CRIMINAL LAW — Practice and Procedure — Bail Application — Offence of accessory after the fact — Applicant alleged to have assisted prison escapee involved in two bank robberies involving millions of kina - Grounds for bail - Onus of Proof — State to show one or more of considerations under s.9 of the Bail Act exist - Exercise of discretion — Interest of justice — Serious nature of case – Whether release on bail is in interest of justice - Onus of proof on applicant — Onus not discharged.

Bail Application

This is an application for bail on a charge of being an accessory after the fact.

Case Cited:

Re: Keating [1983] PNGLR 133

The State v. Beko Job Paul [1986] PNGLR 97.

Counsel:

D. Dotaona, for the Applicant

L. Wawun, for the State

17 March, 2009

1. BATARI J: The applicant, a British citizen of Britain and PNG parentage is alleged to have received or assisted another person namely, William Kapis Nanua, an escapee who was to her knowledge, wanted by police for the BSP Kerema and BSP Madang bank armed robberies, in order to enable him to escape punishment. She is charged with the offence of being an accessory after the fact pursuant to Sections 519 and 10(1) of the Criminal Code. Tamara was initially charged with armed robbery upon her arrest and detention on 23rd July 2008. She has been held in custody since.

2. She now applies to be released on bail pending her trial. In support of her application, she relies on her own affidavit and the affidavits of her two proposed guarantors, Thomas Kahai and Dr. Karol Popei. The three affidavits were filed on 28th November, 2008.

3. The application is opposed by the State on a number of contentions. The objection is supported by two affidavits each sworn by Ms Laura Wawun of Counsel for the State, filed on 5th and 10th March 2009 respectively. In her first affidavit, Ms Wawun attached the affidavit of Const. Manson Tutuni which sets out the basis for the objection to bail. The second affidavit which attached the statement of Sgt. Apollos Terry is confined to circumstances surrounding the arrest of the principal accused William Kapis Nanua and others, suspected in the robbery of the BSP Madang bank.

4. Sections 3 and 6 of the Bail Act gives a person who has been arrested or detained for an offence (other than treason or wilful murder), the right to apply to a court for bail at any time or stage of a proceeding. These sections follow the constitutional right to bail under s.42 (6) of the Constitution which makes it obligatory on the bail authority to grant bail unless the interest of justice requires otherwise. The onus is on those who oppose bail to show why bail should not be granted and the criteria for refusal of bail is set out under s. 9 (1) of the Bail Act.

5. It is apparent from the scheme of the Constitutional provision and the Bail Act that the entitlement to bail is vested in the defendant at all times until the case is finally determined by conviction or acquittal. This constitutional and statutory entitlement to bail gives the applicant in a bail application a head start with huge presumption in his or her favour.

6. In opposing bail, the State raises a number of matters under s. 9 (1) of the Bail Act. The grounds are not precisely spelt out, but may be summed up from the affidavit of Const Manson Tutuni and the allegations that:

1. The alleged offence, constituting the principal offence in respect of which the applicant is currently detained consist of a serious assault and possession of offensive weapon, namely firearms (s. 9 (1) (c)),

2. It is necessary for the applicant’s own protection to be in custody (s. 9 (1) (g)),

3. The principal offence of robbery involved property of substantial value that has not been recovered and the applicant if released may jeopardize police investigations. (s.9 (1)(h), interference with witnesses and s.9(1)(g) likely to conceal or deal with the properly).

7. When deliberating the question of bail, one need not consider the material or information available in support of or against bail in minute detail and apply to it, the higher standard of proof. This follows from s. 9 (2) of the Bail Act which provides that the Court is not bound by technical rules of evidence but may act on such evidence as are available to it. This in my view extends to discretionary admission of facts in the interest of justice. If I am satisfied on reasonable grounds that one or more of the matters set out in s. 9 (1) is established on the evidence available to the Court, bail must be refused.

8. There is however discretion to grant Bail. The onus is on the applicant to satisfy the court on reasonable grounds that his or her further detention in custody is against the interest of justice.

9. On the first ground of objection, the alleged facts directly implicated Ms Tamara Player in assisting a prison escapee and principal suspect in the Kerema BSP robbery on 17 June 2008 and Madang BSP Bank robbery on 5 July 2008 to escape punishment. About a week after the Madang robbery in which K2,407,315 was stolen, police detained Ms Player and found in her possession, K127,000. Police also recovered from her home, police issued uniforms, firearms and ammunition. The money and items recovered from her home were allegedly connected to the bank robberies.

10. I am satisfied the facts alleged against the prime suspect of the bank robbery and escapee, William Kapis Nanua involved threats of violence and possession of firearms. The applicant is charged as an accessory to the escape and robbery allegations. Section 9 (1) (c) against bail is in my view, established.

11. On the question of whether the further custody of the applicant is necessary for her safety, there is no direct evidence or suggestion supporting potential security risk against her if released from custody. The affidavit of Manson Tutuni merely asserts protective custody and may be speculative.

12. But when one considers the nature and enormity of the two bank robberies, the millions of kina which were stolen and the possibility of a network of others implicated still at large, the potentiality of collusion, conspiracy, threats, intimidation and other underarm tactics to avoid detection is a real possibility. It is not hard to imagine stakeholders and other beneficiaries of the bank robberies proceeds adopting means or extreme measures to hush up or even eliminate sources of threats for their own self preservation.

13. So, it might just be possible that, release of the applicant from custody will be to her own detriment at this time. I conclude that s. 9(1) (g) is a legitimate proposition against bail unless she shows otherwise that the interest of justice requires her release from custody.

14. The ground against bail in paragraph 3 mounted under the auspicious of jeopardizing police investigations, raises the issues of interference with witnesses (s. 9 (1) (h)), and a likelihood of concealing or otherwise dealing with substantial amount of property that has not been recovered (s.9(1)(g)).

15. It is relevant on this issue to consider the extent of implications against the applicant. Tamara Player is alleged to have hired a vehicle used by escapee and principal bank robberies suspect, William Kapis Nanua in his attempts to evade detection and arrest. She was arrested with K127,000, a set of police uniforms, two pistols and ammunition in her possession. A dinghy allegedly used by the principal suspect to escape to the National Capital was also kept at her premises. There is prima facie, a strong case against her.

16. The bank robberies in Kerema and Madang left a trail of possible suspects traversing several provincial locations including Madang, Lae, Kimbe, Kerema and Alotau, Aroma in the Central Province and Port Moresby. This suggests a well planned and organized network of myriad proportions involving many people to raid and siphon-off millions of kina from the two banks. The plan initially worked smoothly until someone ‘spilled the bean’. The magnitude and complex nature of the principal robbery offences allegedly masterminded by an escapee is no doubt, difficult to investigate by police and it is not surprising that investigations are still continuing.

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