Juale v The State [1999] PGNC 138; [1999] PNGLR 501 (13 June 1999)

[1999] PNGLR 501

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BERNARD JUALE

V

THE STATE

WAIGANI: KIRRIWOM J
10, 13 June 1999

Facts

The applicant is a long serving member of the Police Force who has attained the rank of Sergeant but now facing serious charges of wilfully murdering his wife at Five-mile Mobil Service Station on the evening of 15th October 1996. He now applies for bail.

It is alleged that the accused Bernard Juale conspired with other persons and devised a plan for one of those persons to shoot and kill his wife with a gun. In accordance with this plan, the accused set his wife up on the date, time and place agreed upon and she was shot at point blank by one of his accomplices. The accused and two others are presently facing charges of wilful murder of his late wife.

Held

1. By virtue of s 42(6) Constitution, bail is available to all person at all times except for persons charged with wilful murder and treason who must apply to the Supreme Court for bail.
   
2. In the circumstances of this case, since the offence was committed with use of a fire arm, and that the accused’s life is in danger if he was out on bail, and further that he is likely to interfere with police witnesses; application for bail refused. In re Fred Keating [1983] PNGLR 133 applied.
   

Papua New Guinea cases cited

In re Fred Keating [1983] PNGLR 133.

Re Kou Dua [1984] PNGLR 22.

Counsel

F Mugugia, for the applicant.
M Boni, for the respondent.

13 June 1999

KIRRIWOM J. This is an application for bail by the applicant Bernard Juale who faces a serious charge for wilfully murdering his wife at Five Mile Mobil Service Station on the evening of 15th day of October 1996. It is alleged that the accused Bernard Juale conspired with other persons and devised a plan for one of those persons to shoot and kill his wife with a gun. In accordance with this plan, the accused set his wife up on the date, time and place agreed upon and she was shot at point blank by one of his accomplices. The accused and two others are presently facing charges of wilful murder of his late wife.

According to police information the key suspects besides the applicant himself are: (1) the person with whom the accused conspired to kill his wife; and (2) the person who actually pulled the trigger of the gun. These two persons or suspects are still at large.

Applicant is a long serving member of the police force and to his credit, has attained the rank of Sergeant. He comes from Wewak in the East Sepik Province but was born and brought up in West New Britain.

The applicant was initially released on bail on interim orders made by His Honour Los J on 21 March 1997. These orders were returnable before the National Court on 30 March 1997 for review but this did not eventuate for various reasons one of which was the fact that the fixed date was a Sunday and the days following thereafter were marred by the crisis arising from the Sandline Affair. It also appears from the records that Mr Powes Parkop who was then acting for the applicant was threatened by the relatives of the deceased wife and did not pursue bail in fear of his own safety. He therefore simply prepared the bail papers for the accused to pursue the application in person.

However, before any application was filed, the State on 2 May 1997, applied for revocation of bail given to the accused pursuant to the interim orders of 21 March 1997 by Los J on the basis that he had already breached the said interim orders by not returning to Court on the 30 March 1997 or soon thereafter. This application came before His Honour Vagi AJ on 21 May 1997. His Honour revoked bail but ordered the accused was at liberty to file a proper application for bail. Pursuant to this order of His Honour, this application now comes before me.

As the history of this case itself shows, this application is vigorously contested by the State and both parties have filed affidavits in Court to support their arguments. Such vitality with which the parties are pursuing their respective cases is commendable, as it ought to be so, because not only that wilful murder is a very serious crime, but this case had already received much public attention through the news media. It is therefore not inappropriate for the parties to present their cases with vigour and preparedness to assist the Court in coming to its decision so that justice is not only done properly, but is seen to be done properly.

Mr Mugugia is correct to point out that bail is not available to his client as of right. This is because s 42(6) of the Constitution does not give automatic right to bail for persons charged with treason and wilful murder. He however says that because the Bail Act gives power to the National Court to hear application for bail in respect of wilful murder, the Court must exercise its discretion in granting bail to his client if none of the considerations in s 9 (10 (a) (c) (d) (e) and (f) of the Bail Act exist or are proven against his client. And he presented detailed and very helpful submissions in respect of each of this consideration supported by affidavit materials filed with the application and subsequently thereafter but before this hearing.

The area of contention in this bail centres around these considerations:

(1) that the person in custody is unlikely to appear at his trial if granted bail; (s 9(1)(a);

(2) that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists of;

(a) a serious assault

(b) threat of violence to another person

(c) having or possessing a firearm, initial firearm, other offensive weapon or explosive, (s 9) (1) (c) (i) (ii) (iii).

(3) that the person is likely to commit an indictable offence if he is not in custody (s. 9) (1) (d).

(4) it is necessary for the person’s own protection for him to be in custody; (s. 9) (1)(e).

(5) that the person is likely to interfere with witnesses or persons who instituted the proceedings (s. 9) (1) (f).

However, the State’s objections are only based under Section 9 (1)(c)(i), (ii) & (iii) and (f). In support of its objection, State has filed an affidavit from one Joel Entapa who was threatened by the applicant at the Public Curator’s Office when he was shown the butt of a pistol, statements from a relative of deceased who was forced by the applicant to vacate his house at Erima and has since been living in fear with his family and also a statement from the elder sister of the deceased who expresses fear of being harmed by the accused. State argues that the charge of wilful murder is an offence of violence involving serious assault. State says that this is a very gruesome murder carried out in a cold-blooded manner. State says it was masterminded by the accused himself as was described in the statement of facts annexed to the affidavit of Mr Ravu Auka.

Detective Superintendent Mark Kanawi and Detective Constable Edward Tangone also deposed two affidavits opposing the applicant’s release on bail. He is described invariably by some witnesses as a very forceful person with violent disposition and temperament. According to Mark Kanawi and Edward Tangone, there are two key suspects still at large, one is the person with whom the accused is alleged to have conspired to kill his wife and the other is the person who actually pulled the trigger. They say that if the accused is released on bail, any hopes of apprehending these suspects are gone. Then there is the evidence of Joasa Joshua who was once the accused’s work-mate. He says that following the arrest of the accused and after he gave his statement to the Police, his house has been under constant surveillance or observations by unknown vehicles with strange people suspiciously driving past which causes him great fear and apprehension. He says that because of this fear he had to request his superior to arm himself and take other precautionary measures for his protection and that of his family.

Beside the affidavit filed by the applicant stating how harmless and very humble person he is, there are also other affidavit materials filed on his behalf either refuting the allegation of the witnesses of the State or expressing the safety of the family at home in Gerehu Police Barracks without the presence of the applicant. Mr Mugugia, very eloquently argued that I must accept the evidence presented on behalf of the applicant.

In addressing the arguments he presented, let me make the following observations:

1. Unlikely to appear if granted bail
   

This is not in issue so I accept the applicant’s argument as advanced by his lawyer.

2. Serious assault, threat of violence to another person and having or possessing a firearm.
   

Mr Mugugia submits that the State is only relying on assumptions and emotions of witnesses, which it called to substantiate threats or intimidations of potential State witnesses. He says his clients have no firearm, only firearm he had was returned to the Police upon his arrest. The case of the brutal murder of his wife is a matter of substantive hearing. This is subject to be tried and proven in Court and his client has denied and will continue to do so. He said assumptions and speculations must not be the basis upon which Court must refuse bail, and I quite agree. He said the fears expressed are based on hearsay evidence, assumptions and emotions.

3. Own Safety
   

Mr Mugugia contends that the safety of his client will be far more guaranteed by his wantoks and family members at home then he would be in custody. He said and I quote:

"It is an accepted phenomenon these days that a policeman who goes to goal and detained together with other prisoners, his life is in danger by virtue of him being a policeman."

4. Interference with Witnesses
   

Mr Mugugia says that this fear by the State is baseless because investigation into this matter has been completed, all suspects have been arrested and charged and their committal proceedings will be finalised on Friday 13th June 1997. He said all necessary documents have been filed and served on applicant.

Lastly Mr Mugugia urged me to exercise my discretion to grant bail to the applicant on humanitarian grounds because he says, since the death of his wife, Applicant has played the role of both father and mother to his young children. It is in the children’s interest that they should not be separated from their father. At the same time he says I must be guided by good conscience to give his client freedom to be at large on bail to prepare his defence. This is because the applicant is innocent until proven guilty.

Let me deal with this last plea based on humanitarian grounds first. In my view before I can venture into examining considerations not stipulated in s 9(1) of the Bail Act, I have to first satisfy myself as to whether or not, any of the considerations in s 9(1) have been made out. If I do find that one or more grounds have been established, then I have to decide whether I should exercise my discretion to either grant or refuse bail. There is one school of thought that says that once I have found that one of the grounds in s. 9 (1) has been established, I have no discretion to grant bail if the charge is that of wilful murder. I beg to differ with this view, even if this is the correct interpretation of the law in In re Fred Keating [1983] PNGLR 133. If that is what the law is, in my respectful view, it needs to be corrected. I think there will be, as is always the case, exceptional circumstances such as those alluded to by Andrew J in his judgement in the same case that would warrant bail even in wilful murder cases. The question is always one of degree. Each case must be decided on its own peculiar circumstances. The Constitution under s 42 (6) does not deny bail to a person charged with wilful murder. It avails bail to all persons at all ties except those charged with wilful murder and treason. The fact that it except wilful murder and treason does not necessarily connote a negative proposition of law. It simply means that bail is not readily and automatically available but that the person charged must seek redress for bail through other avenues. That avenue is thus provided under ss 4 and 6 of the Bail Act. It is however unfortunate in my view that Section 9 of the Bail Act is restricted only to those considerations exhaustively defined therein.

In the case before me notwithstanding the view I have expressed above, for reasons expressed hereinafter, I do not find the plea convincing for me to exercise my discretion in favour of the applicant.

Having weighed up all the evidence before me and analysing all the submissions competently presented by both counsels, I am satisfied that there are reasonable grounds established on the materials presented as to the following:

1. That most, if not all those considerations stipulated in s 9(1)(c)(i)(ii)(iii), are made out. I accept that the alleged act constituting the offence in respect of which the applicant is charged and is in custody consists of a serious assault involving gruesome violence and that it was committed with a firearm. It is immaterial who actually fired the gun.
   
2. That even the accused’s own life will also be exposed to danger if he is on bail. He himself has expressed fears of being harassed and intimidated by his late wife’s relatives. Even his relatives guarding or residing at his residence at Gerehu have deposed to this fact. I will not accept Mr Mugugia’s assertion that the Applicant will be safer outside in the protection of his family and relatives than in custody. If such protection outside is to be offered by Police, that may very well be in order. But I cannot accept that a self-appointed band of tribesmen or relatives will do much better job of protecting him than CIS personnel empowered and charged by law to provide this service to those persons committed to their custody. This is why I disagree with the theory of policemen in custody face the risk of attack from within the other inmates by the mere fact that they are policemen.
   
3. That the accused is likely to interfere with witnesses. I accept the evidence of State witnesses and I believe that there are reasonable grounds for believing that witnesses will be interfered with and that further police investigation will be hampered. I do not accept that all suspect in this crime have been arrested. The Affidavits of Detective Superintendent Mark Kanawi, Detective Constable Edward Tangone have not been challenged and I accept that those two key suspects are still at large.
   

This case is identical to In re Fred Keating [1983] PNGLR 132 where the accused an Englishman was charged with wilfully murdering his wife by clubbing her to death with a piece of wood. This offence took place in Kundiawa. The State objected to bail and raised similar arguments as in this case, but the main one being that of interference with a potential witness. The National Court denied him bail. Applicant appealed to the Supreme Court. The Supreme Court dismissed his appeal and confirmed the decision of the National Court.

I have also received helpful guidance from the case of Re Kou Dua [1984] PNGLR 22 referred to me by Ms Boni. The facts are almost similar. The husband was charged with wilfully murdering his wife by deliberately stabbing her several times and causing her death. He applied for bail on the grounds that he needed to settle the problem of custody of his small child who was subjected of fight between the grandparents and that his life was threatened by two inmates of the jail.

The Court refused to grant him bail and held that the acts constituting the offence consisted of a very serious and grave assault on the deceased with a knife which fell within s 9(1)(c) of the Bail Act and that the onus was on the applicant to show why his custody in detention was not justified. This he did not do and his application was refused.

Consistent with my findings on the facts herein, I am not inclined to grant the application sought for the reasons stated and further that the applicant had failed to convince me that his detention in custody is not justified. I therefore refuse the application for bail and order that he be remanded in custody forthwith.

Lawyer for the applicant: Francis Mugugia, Esq.
Lawyer for the respondent: Public Prosecutor.