[1998] PNGLR 320

PAPUA NEW GUINEA

[national court of justice]

ROSE YAMAEN

v

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

wabag: lenalia aj
20 April 1998

Practice and Procedure - Bail Application - Application pending Committal proceedings - Change of manslaughter - Applicant Elementary School Teacher - Interest of justice - Bail discretion upon consideration of s 9 of Bail Act - Relevant consideration

Facts

The applicant, an elementary school teacher and a mother of four children was charged with manslaughter of her husband under s 302 of the Criminal Code Act (Ch. No. 262).

She was remanded in custody pending committal hearing. She applied to the National Court for bail. The application was not opposed. Section 42(6) of the Constitution provides:

(6)	A person arrested or detained for an offence (other than treason, 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 interest of justice otherwise require.

Section 4 of the Bail Act provides that a person charged with either wilful murder or murder or any other offences punishable by death shall not be granted bail except by the Supreme or National Courts

Section 9(1)(a)-(i) of the Bail Act provides: bail should be refused unless the applicant shows cause as to why his or her continued detention is not justified. 

Held

1.	That bail is a constitutional right and is available to persons from arrest to sentence or acquittal as the case may be. It must be readily given unless the interest of justice requires otherwise. 

Re Herman Kagle Diawo [1980] PNGLR 48 and The State v Tohian [1990] PNGLR 173, applied.

2.	When a person is charged with murder or a treasonable offence, the court must decide on a bail application pursuant to s 9 of the Bail Act. Once one or more of the considerations as provided under s 9(1)(a)-(i) is established bail should be refused unless the applicant shows cause as to why his or her continued detention is not justified. In Re Fred Keating [1980] PNGLR 133 applied.

3.	The applicant is a schoolteacher and has four young children. She is not likely to abscond bail. Bail granted.

Papua New Guinea cases cited

Re Fred Keating [1983] PNGLR 133.
Re Herman Kagle Diawo [1980] PNGLR 48.
The State v Tohian [1990] PNGLR 173.

Counsels

P Patone, for the applicant.
P Kumo, for the respondent.

20 April, 1998

Lenalia aj. The applicant in this matter is charged with manslaughter of her husband Vincent Yamean pursuant to s 302 of the Criminal Code. She deposes that the committal proceedings of her case has not been commenced and she has only been brought up twice to the Wabag District Court only to find her case being merely mentioned and has been further adjourned towards the end of this month. Allegations against the applicant are that on 2nd day of November 1997, she unlawfully killed her husband. 

The applicant says that she was arrested on the 18th March this year, was charged by the Wabag Police and has since been remanded. Her first appearance in the lower court was on the 24th of March but the matter was further adjourned to the 8th of this month and has since further adjourned to the end of April. The applicant further deposes that the investigating officer has formally cautioned her in the last adjournment that, her committal documents would not be ready until the investigation has been completed.

She further pleads that she is a Community School Elementary Teacher and she is supposed to be teaching by this time of the year. Her posting is to the Yaramanda Community School, a school near her husband’s village. She is now being remanded at Baisu Corrective Institution in the Western Highlands Province. The applicant got married to the deceased in accordance with Enga custom in 1995. From their marriage are four (4) issues three of whom are attending community school while the younger one is being minded at home. She gives the birth dates of their children as follows:-

a)	Joyce Vincent born on 1.9.86

b)	David Vincent born on 18.10.88

c)	Meckling Vincent born on 18.10.91

d)	Rolina Vincent born on 20.10.94

Rose also gives a brief account of what actually occurred as compared to the allegations by the police against her. Such brief can be found at page 2 of her affidavit in support of her application. The deponent had been watching some people playing lucky in a nearby house. The deceased charged at her apparently being angered by food being cooked in their house was being burnt by fire. The deceased then slapped the applicant across the forehead. The applicant tried in vain to retaliate merely to be stopped and held back by the deceased’s two cousin sisters. A short struggle ensued but was eventually stopped by on-lookers.

The deceased walked down toward their house but he ran up to the applicant probably with intention to assault the deponent. The deceased caught the applicant and once more struggled with her after which he fainted. He was rushed to the Yampu Health Centre then to Sopas Adventist Hospital. He died on the way to the hospital. The medical certificate of death shows that the deceased had been suffering from a condition of chronic asthma. 

The applicant further says that since the death of her husband, her in-laws more particularly the deceased’s elder brother Alois Yamaen and other relatives had mistreated her. At one stage she was taken to her husband’s cemetery in the afternoon where she was tied to an iron post where she was questioned about her husband’s earnings and other entitlements due to the deceased from the Teachers’ Service Association. After being questioned she was left there that night until the next day.

On this application Mr Patone submitted that, in fact his client might not be charged at all due to the medical report revelation that the deceased death may be attributed to the fact that he was a chronic asthma patient of which the relatives of the deceased are fully aware. Rose deposes that if this Court were to grant her bail she would afford to raise a sum of K200.00 for bail. She has also nominated a well-known businessman in the Wapemanada District, Mr Paul Pupu to be her guarantor pursuant to s 19 of the Bail Act.

An application for bail stems from s 42(6) of the Constitution, which says:

"(6)	A person arrested or detained for an offence (other than treason, willful 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 interest of justice otherwise require".

Thus s 4 of the Bail Act provides that a person charged with either wilful murder or murder or any offences punishable by death shall not be granted bail except by the National or Supreme Courts. The applicant has exercised that right to apply to this Court.

With respect to the applicant’s lawyer’s submission that the Court should consider the fact that it is most probable that charges against his client might be dropped due to insufficient evidence to substantiate the charge of manslaughter. I do not think that I am at all required at this stage to consider the substantive nature of the evidence and the applicant’s defence, which will eventually be determined at the trial proper. What has been said over and over again by the National and Supreme Courts is that bail is a constitutional right.

It is a right available to persons from arrest to sentence or acquittal as the case may be. It has been said that bail must be readily given unless the interest of justice requires otherwise: Re Herman Kagle Diawo [1980] PNGLR 48. Diawo’s case also establishes that at this stage of the proceeding that is to say at the time when the applicant is being remanded pending the committal proceedings, the State carries the burden of justifying why the applicant should be continually detained. This Court is required to consider the interest of justice.

In The State v Tohian [1990] PNGLR 173, it was held that the applicant was entitled to bail as a constitutional right. But it was also held in Re Fred Keating [1983] PNGLR 133 that when a person is charged with murder or a treasonable offence the Court must decide an application pursuant to s 9 of the Bail Act. Two judges held in that case that once one or more of the considerations in s 9(1)(a) - (i) is established, bail should be refused unless an applicant shows cause why his or her continued detention is not justified.

The applicant applies under s 4 of the Bail Act which says:

"Bail only by National or Supreme Court in certain cases.

A person charged with wilful murder, murder or an offence punishable by death shall not be granted bail except by the National or Supreme Court".

Generally, the Courts must be guided by s 9(1)(a) - (i) of the Bail Act and the prosecution must discharge the onus under s 9 of the Act. Mr Kumo for the respondent submitted in brief that the possibility of the applicant jumping bail is very less and that he does not oppose the application. In consideration of this application, I take into account that the applicant has four children and the fact that she has a paid job. She is currently employed by the Department of Education in Enga Province. I do not think she would abscond bail. It is in the interest of justice that the applicant should be released on bail pending the committal proceedings. I grant bail to the applicant on the following conditions:

1.	That the applicant shall be released on cash bail in the sum of K200.00 to be paid within two (2) days from the date of her release.

2.	The applicant shall comply with Wabag District Court Orders as to when she would be required for the committal hearings or whenever she is required by either the Court at Wabag or the police investigator.

3.	The Court hereby approves and appoints Mr Paul Pupu to be a Guarantor to guarantee the State a sum of K200.00 for the appearance of the applicant. In the event that the applicant does not comply with any of the foregoing conditions the Guarantor shall be required to show cause pursuant to s 19 of the Bail Act.

Applicant granted accordingly.

Lawyer for the applicant: Pato Patone Lawyers.
Lawyer for the respondent: The Public Prosecutor.