Kaime v Police [2016] PGDC 20; DC2082 (22 September 2016)

DC2082

PAPUA NEW GUINEA
[IN THE DISTRICT COURT HELD IN MINJ]
In the matter of a Bail Application Pursuant to Section 6 of the Bail Act Chapter 340 and Section 42(6) of the Constitution:

CB./ NO328& 330 - 331 OF 2016

BETWEEN

ELIJAH KAIME, MARIA WUSS KAIME AND TEGE KAIME

Applicants

V

THE POLICE
Respondent

MINJ: MR. JOSEPH DCM
2016: 22^nd September

CRIMINAL LAW – Bail–Nature of right to bail –Applicants charged with intent to cause Grievous Bodily Harm – Alleged offence consists of serious assault and violence to another person – no strict rules of evidence apply – Reasons for bail are substantiated – exercise of discretion whether to grant bail – Case for bail made out – Bail Act (Chp 340) ss 6, 4, 14 - Constitution ss 42 (6) – Criminal Code ss 315(a).

Case cited:

Re Fred Keating –v – The State [ 1983] PNGLR 133

MalakiKongo& Joe Akusi – The State (1996) N1544
Philip Maru and AruaOa –v – The State (2001) N2045

In The Matter of Bail Applications by 61 Remandees of Boram Correctional Institution East Sepik Province (2006) N3801

NartinAibel –v –The State (2009) N3636

Counsel

Mr P. Moses, for the Applicants
Sergeants Mahona for the Respondent

RULING ON APPLICATION FOR BAIL

Joseph DCM This is an application for bail by three Applicants made before this Court pursuant to Section 42(6) of the Constitution and Section 6 of the Bail Act after they were arrested and charged with one count of Intention to cause Grievous Bodily Harm of one KumieNanabi of Kondigaime, Minj in the Jiwaka Province. The three Applicants are co-accused to two other accused persons namely Ken Jimbin of Kola Village in South Waghi District in the Jiwaka Province and KolumKaime of the same place who have been granted bail of K1000.00 and K500.00 respectively by the Police.

Brief Allegations of Facts:

The Police alleged that on Friday the 19^th of August 2016 at around 4:30 pm the Applicants together with their two co-accused each and severally with intent to cause grievous bodily harm to KumieNanabi, chopped off both his right and left arms. The alleged KumieNanabi lost his right arm and the left arm bone was chopped off but was held back to the skin by ligaments and sustained cuts on his neck and body parts.

The police state that the Applicants were inside their kitchen when the alleged victim walked about 4 meters past them and someone came from behind and swung a bush knife which landed on his neck and he screamed with pain and fell to the ground and lay unconsciously. The person then chopped his two armsand after some minutes later, neighbours from the other area came and help the alleged victim came and helped him to the hospital.

The Applicant Elijah Kaime is alleged to have admitted to his family and tribes that he used a pocket knife to injure the alleged victim so he surrendered to the police by his family members. The Police then apprehended the rest of the Applicants, arrested and charged them. The alleged facts do not show at this stage as to the involvement of the other two Applicants except for the Applicant Elijah Kaime who is alleged to have admitted.

The Issues

The main issue that needs to be determined by this Court is whether or not, Bail can be granted to the three Applicants.

In order to determine the above issue, this Court must look into the Laws and the principles that apply in granting or refusing bail and apply them to the circumstances under which the Applicants have brought their bail before this Court.

The Law and Bail Principles

The law on whether to grant or refuse bail is well settled in our jurisdiction as is well provided for by Section 42(6) of the Constitution and Section 6 of the Bail Act together with other provisions under the Bail Act such as Sections 9 and section 14 which specifically applies in this application. Section 14 applied in this case due to the fact that bail was made in the absence of the Three Applicants and bail can be granted in the absence of the person needed to be granted bail.

Sections 42 (6) of the Constitution states that;

Section 42 (6) Liberty of the person.

A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

whilst Section 6 of the Bail Act states that;

Section 6. Application for bail may be made at any time.

(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.

(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.

(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section.

The Constitution therefore gives a person the right to bail in any offence other than a person charged with Wilful Murder or Treason where special circumstances must exist infour of the person applying for bail. However, prior to granting bail to the person seeking bail, the Court must first consider whether granting bail is in the best Interest of justice and if it is not, the Court should not exercise its powers to grant bail.

In the case of Re Fred Keating v The State [1983] PNGLR 133, the Supreme Court established that a person charged with wilful murder or treason, he or she can still be granted bail at the discretion of the Judge hearing the application. However, in those cases the presumption in favour of granting bail does not apply and it is more difficult to obtain bail. His Honour Justice Cannings applied that principle when his Honour considered bail for a total of 61 Remandees in the case ofIn The Matter of Bail Applications by 61 Remandees of Boram Correctional Institution East Sepik Province (2006) N3801stating the fact that bail is a right afforded by the Constitution.

The Bail Act provides for bail to be granted more readily and gives effect to Section 42(6) of the Constitution and the relevant provisions applying in the current applications are Sections 4, 6, and 9.

Bail can be considered by a lower Court for offences that are not provided for by Section 4 of the Bail Act such as:

a person charged with Wilful Murder, Murder or an offence punishable by death or rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or break and enter a building or dwelling-house, and in which a firearm is involved whether it was fired or not, only the National or Supreme Court can grant bail.

It is therefore safe for this Court to hear and determine bail application in the current case since the offence under which the Three Applicants are charged with do not fall under any of the offences prescribed by Section 4 of the Bail Act. (SeeIn The Matter of Bail Applications by 61 Remandees of Boram Correctional Institution East Sepik Province)

The National Court in the cases cited above ofMalakiKongo& Joe Akusi – The State (supra), Philip Maru and AruaOa –v – The State (supra), In The Matter of Bail Applications by 61 Remandees of Boram Correctional Institution East Sepik Province (supra), Martin Aibel –v –The State (supra) and others all have considered and applied the principle established in the case of Re Fred Keating (supra) with relation to the application of Section 9 of the Bail Act.

“In Re Fred Keating, the Supreme Court held that in the case of a bail application of a person charged with wilful murder if any one or more of the criteria in s.9 of the Bail Act is or are shown to exist the onus is then on the applicant to show why he/she should be granted bail.”

That principle was established in a Wilful Murder case however the same equally applies to any other offences not prescribed under Section 4 of the Bail Act such as in this current application. In the case of Philip Maru and AruaOa –v The State, his Honour Justice Kandakasi held that:-

“the existence of one or more of the circumstances under Section 9 of the Bail Act may form the basis to refuse bail but that is not automatic. There is discretion in a bail authority to grant bail if an applicant for bail is able to show by appropriate evidence that his continued detention in custody is not justified.

Section 9 (2) of the Bail Act states that the Courts are not bound by the technical rules of evidence but may act on such information as is available to it. What it means is that an Applicant’s burden to produce appropriate evidence to form the grounds for granting him/her bail is not that difficult. The conditions under which bail can be refused are as follows:-

(a) The applicant in custody is unlikely to appear at his trial if granted bail
(b) The offence with which the person been charged with has been committed whilst the person was on bail
(c) The allege act consists of a serious assault or a threat of violence to another person, or having or in possession a firearm or other offensive weapon,
(d) The applicant is likely to commit an indictable offence,
(e) It is for the person’s own protection that bail be refused,
(f) The applicant is likely to interfere with the witnesses or the alleged victim,
(g) The offence involves property of substantial value that has not been recovered....
(h) .........
(i) ...........
(j) The alleged offence is one of breach of parole.

Applicants’, Case:

Mr Moses for the Three Applicants submitted that bail is a right afforded to the applicants by the Constitution and that the interest of justice warrants the granting of the bail due to the fact that two of the co-accused to the applicants have been granted police bail in the amount of K1000.00 and k500.00 and it would only be fair if this Court grants the three Applicants bail. Counsel further submitted that the alleged offence under Section 315 (a) of the Criminal Code does not fall under one of the offences in Section 4 of the Bail Act and that this Court has the discretion to grant bail to the applicants. Mr. Moses further submitted for the Applicants that although there are one or two conditions under Section 9 of the Bail Act is shown in the commission of the offence, the interest if justice favours the granting of bail to the applicants due to the fact that bail has already been granted to two of the co-accused.

Police Case

SergentMahona for the Respondent submitted that the Police has not objections to the applicants’ bail application and that if the Court is to grant bail, the strict terms and conditions be imposed especially with the cash bail to be imposed between K500.00 to K1000.00 for the Applicant and a sum between K100.00 to K500.00 be imposed as surety by the Guarantors..

The Present Case

Applying the principles discussed above and the submissions made before this Court, this Court is of the view to stress what has been alleged in the summary of facts that may amount to a very serioius offence if the matter goes to trial and the applicants are found guilty by the higher Court although there is no evidence to prove the injuries sustained as submitted by Mr. Moses at this stage. However it is the Court’s view when determining whether to grant or refuse bail to consider the alleged summary of facts.

Here is a person alleged to have been suspected of sorcery that caused the death of their late father thus the Applicants together with the two others on bail proceeds to chop the alleged victim, firstly on the neck, then chopping both hands off but luckily the other arm is still attached. Applicant Elijah Kaime even admits to his family and relatives that he used a pocket knife to injure the alleged victim.

The allegation of facts shows very serious assault together with threats of violence and the use of an offence weapon which is alleged to have been admitted by Applicant Elijah Kaime