N4207

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 516 OF 2008

IN THE MATTER OF THE BAIL ACT CHAPTER 340

AND

IN THE MATTER OF SECTION 42(6) OF THE CONSTITUTION

BETWEEN

KNOX KUNUMB
Applicant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Mt. Hagen: Sagu AJ
2009: 9th August

CRIMINAL PROCEDURE - bail application - wilful murder – detention in custody not justified - guarantors – family members and relatives with reputation and standing can be safe guarantors as it increases accused persons obligation to answer.

Cases Cited

Re Fred Keating -v- The State [1983] PNGLR 133
Re Kou Kua [1984] PNGLR 22
Malaki Kongo & Joe Akusi -v- The State (1996) N1544
Michael Aia & Michael Maneba -v- The State (2001) N2124
Guant v. State (2009) N3576

Counsel

Mr .F. Kua, for the Applicant
Mr.N. Miviri, for the Respondent

RULING ON APPLICATION FOR BAIL

9th August, 2009

1. SAGU AJ: The Applicant applied for bail pursuant to section 42(6) of the Constitution and sections 4 and 6 of the Bail Act after he was charged with one count of wilful murder of one James Win on 16th day of August 2008 contrary to Section 299 of the Criminal Code.

BRIEF FACTS

2.	Brief facts as alleged by the state are that the Applicant's clan and the deceased clan are tribal enemies who have been involved in an on going tribal fight since 2002.

3.	The State further alleges that on Saturday the 16th August 2008 at about 1.00 am the deceased was a passenger among others in a red Toyota Hilux single cab owned by one Junior Siwi who is a brother to the deceased. Siwi drove into Kiam Service Station to refuel. As they were stationed a Maroon Hilux drove into that service station and parked along their side. The accused was seated in the passenger side in the front cabin of that maroon Hilux. He came out and asked the deceased and others what they were doing there. The deceased replied they had come to refill fuel. The accused who was armed with an axe went straight and chopped the deceased on his head while others pulled him out of the vehicle down to the ground and chopped him all over his body. The deceased was taken to the Kunjip Hospital where he died later.

PERSONAL BACKGROUND

4. The applicant is a senior sales supervisor with Brian Bell Company in Mt. Hagen for 11 years. He is married with 5 children the oldest being 15 years and youngest one month old and lives in Mt. Hagen. The applicant has a clean record having no prior conviction.

GROUNDS FOR APPLICATION

Denial of Charge & Family Livelihood

5. The Applicant vigorously denies the offence and says that he did not commit the offence. He is married with 5 children, whose ages range from 15 years old to the youngest, a baby one month old . His children attend school. He is the sole bread winner for the family having a permanent job as a Sales Supervisor with the Brian Bell Company for 11 years in Mt. Hagen. His family has already suffered.

Prolong Dentention

6. Secondly he says he has been in custody for over 8 months and it is unlikely that his case will come up quickly due to the long list of outstanding cases pending before the National Court in Mt. Hagen. He seeks bail pending trial.

Humanitarian Grounds - Unhealthy living conditions at Baisu

7. Further, he says that the living condition at Baisu Corrective Institution is not conducive to live in as it is overcrowded, thereby posing serious health risks to his life. The risk of contracting diseases such as typhoid, tuberculosis, scabies and diarrhea is very high, hence he seeks bail. 

GUARANTORS

8. The Applicant proposes five guarantors all having deposed to of Affidavits. They all speak well of the Applicant to be a stable family man with a stable job. This is the first time the Applicant is alleged to have been in trouble and they are willing to become guarantors having understood the consequences in the event that the Applicant absconds bail if granted:

9. Paulus Moka of Komun Construction and employed as a Public Relations Officer of Komun Construction attached with the Shorncliffe Company says he knows, and speaks well of the Applicant as a popular well mannered figure as a Sales Supervisor with Brian Bell in Hagen. He has no hesitation in pledging K500 as a guarantor for the Applicant.

10. Willie Samai – Finance/Auditor Inspector of Department of Finance and Treasury Mt. Hagen been employed over 27 years. He has known the accused for over 10 years and he is willing to be guarantor for the Applicant quite well appreciating the consequence of being a guarantor in the event that the Applicant abscond bail. He is willing to pledge K500.00.

11. Reverent Thomas Kennick of Church of Nazerene based at Kami south Waghi who says the Applicant is of good character and is one that is unlikely to abscond bail. 

12. Er Tal Councilor & chairman to the Peace and Good Order Committee for Anglimp South Waghi is also willing to be a guarantor for the Applicant.

13. Wusik Wapi Deputy Chairman of the peace and Good Order Committee of South Waghi has also pledged to be a guarantor for the Applicant. He has pledged K500.00

14. The Chief Superintendant of the Baisu C.I.S here in Mt. Hagen, through his affidavit dated 17. 7.09 states the overcrowded condition in the Remand Cell. The holding capacity for the cell is 30 however, it is seriously overcrowded with 130 of which 89 are National Court Remandees while the others are District Court Remandees. The overcrowded situation has contributed to the remandees mass break out. He further states that he has had complaints regarding hygiene related diseases as a result.

STATE OBJECTION

15. The State objected to bail under section 9(1) (c) of the Bail Act in that the offence consisted of serious assault by the use of an offensive weapon an axe. The State further objected the bail application on the basis of an affidavit sworn jointly by six deponents sworn on 26 January 2009 and filed on 27th February 2009. The joint deponents are Robert Brum, Joe Kill, John Tapi, Andrew Bar, Tony Gigmai & Walis White. They say the Applicant is a real danger to the community and he should be held in custody. They say he is one of the instigators of the tribal fight and he is responsible for the hire of guns and men to fight on behalf of his clan. They say they are community leaders. 

16. They have also objected to Cr. Wizik Waip becoming a guarantor. They say he is a afinial relative of the applicant as his son married the Applicant's sister. They also object to Cr. Er Tal and Pastor Thomas Kennick as guarantors saying they are related by blood or through marriage. They say there is direct evidence in identifying the Applicant as the person responsible and so he should not be allowed bail.

PARTIES' SUBMISSIONS

17. Mr Kua of counsel for the Applicant submits that whilst the charge against the Applicant is wilful murder and bail is not readily available, there are at least three good and justifiable reasons for the Applicant to be released on bail. Firstly, he submits that the applicant is presumed innocent until proven guilty. This presumption should be in his favour in considering bail.

18. Secondly he submits that there is a long list of outstanding cases before the National Court here in Mt Hagen. As such, it would take a long time before the Applicant would be tried by the National Court, thus he should be granted bail pending his trial.

19. Thirdly, the living condition at Baisu Corrective Institution is not conducive to live in as it is over crowded, thus posing serious health risk to his client's life. The risk of contracting diseases such as typhoid, tuberculosis, scabies and diarrhea is very high, hence he seeks bail.

20. Mr. Miviri of Counsel for the State opposes bail on the basis of the contents of the opposing affidavit mentioned above but says if bail is granted then strict conditions must apply. He draws my attention to the objection of the three proposed guarantors namely Cr. Wizik Waip, Cr. Er Tal and Pastor Thomas Kennick on the basis that they are relatives by blood or marriage.

RELEVANT LAW ON BAIL

21. Bail is not available to this Applicant as of right. This is because section 42 (6) of the Constitution does not give automatic right to bail for persons charged with treason and Wilful Murder. However the Bail Act gives power to the National Court to hear application for bail in respect of Wilful Murder. The power to grant or not to grant bail is a discretionary one. 

22.	Both the Supreme and National Courts have a wide discretion to admit an Applicant to bail even where one or more considerations under section 9(1) of the Bail Act is present, the onus is on the Applicant to show why his detention in custody is unjustified: see Re Fred Keating [1983] PNGLR 133 and Re Kou Dua [1984] PNGLR 22. 

23. The Applicant raised the following issues in supporting why his detention in custody is not justified. Can it be said that the long delay be a ground to grant bail under this criteria of exceptional grounds. His Honour Batari AJ, (as he then was) gave some examples of exceptional grounds in Malaki Kongo & Joe Akusi -v- The State (1996) N1544. There, His Honour said:

"Although the provision of s. 9(1) (c) has been established, there is a discretion in the Court to grant bail. The onus is on the applicants to show why their detention in custody is not justified (Re: Fred Keating's Case). By the time the accusers are brought to trial in April, 1997 they would have spent over 12 months in custody if they are not released on bail. This is a relevant consideration in their favour. It is however not the sole determining factor. One may bear in mind also that, despite the long wait, case trials in Waigani could now be expeditiously dealt with through case listings so that the accused are at least assured of being brought to trial on fixed dates. There is no uncertainty of their being ever brought to trial.

24. There are three judges in Mt. Hagen now and cases are being listed. It is therefore that there can no longer be uncertainty of his case ever being brought to trial.

25. Secondly, the Applicant's ground that the prolonged detention is adverse to his health as a result of overcrowding in the remandee cells. Whilst there may be overcrowding in the holding cells, it must be evidenced to show that the over crowding situation poses serious health problems however, there is no medical evidence to suggest that the cells are unfit for human habitation. However, a more relevant consideration would be to assess any adverse effect the prolonged detention is having on his personal health, family, business and welfare or in the preparation of his defence. Her Honour Davani J, followed the decision of Malaki Kongo & Joe Akusi (supra) in Michael Aia & Michael Maneba -v- The State (2001) N2124 where she said at p 3:

"What are these exceptional circumstances? The Applicants have not shown any. The affidavits filed by the Applicants are very brief. They do not depose to matters pertaining to exceptional circumstances, some of which may be that, prolonged detention is adverse to their defence or that their social activities, family welfare, employment or business would be in jeopardy. These are matters that are relevant to the applicants and ought to have been covered but were not". 

26. This was further applied in the more recent judgment of my brother Makail AJ as he then was in Guant v. State (2009) N3576

"Similarly a person detained on a wilful murder charge, in my view should show cause that his prolonged detention would either prejudice his defence or deny him the opportunity to adequately prepare his defence. He ought also to show cause that his detention would put his social activities and his family welfare, employment, or business engagements in jeopardy. These are some of the matters that in my view are relevant in the applicant's favour and ought to have been covered in their applications." 

27. Secondly, that the Applicant enjoys the constitutional presumption of innocent until proven guilty. The States affidavit opposing bail contains statements to the fact that the Applicant is identified as the principal offender in the killing and therefore bail should be refused. It would be erroness for me to take into account such statements on this bail application. To do so would be to contradict the constitutional right to presumption of a person's innocence until proven guilty particularly when considering this bail application before me. 

28. In this case the Applicant has shown that the detention has kept him away from his good job and that meant his family who has been depended on him have suffered without means of support. 

29. I am of the view that the Applicant has shown cause, why his detention is not justified.

Guarantors

30. I now move to the guarantors. All five guarantors proposed by the applicant are of standing in the community. 

31. Paulus Moka of Komun Construction, employed as a Public Relations Officer of Komun Construction, attached with the Shorncliffe Company says he knows and speaks well of him as a popular well mannered figure Sales Supervisor with Brian Bell in Hagen. He has no hesitation in pledging K500 as a guarantor for the applicant.

32. Willie Samai – Finance/Auditor Inspector of Department of Finance and Treasury Mt. Hagen been employed over 27 years and has known the Applicant for over 10 years and he is willing to be a guarantor quite well appreciating the consequence of being a guarantor in the event that the Applicant absconds bail. He is willing to pledge K500.00.

33. Reverent Thomas Kennick of The Church of Nazerene is based at Kami, South Waghi who says the Applicant is of good character and is one that is unlikely to abscond bail. 

34. ER TAL is a Councilor & Chairman to the Peace and Good Order Committee for Anglimp South Waghi is also willing to be a guarantor for the Applicant.

35. Wusik Wapi Deputy Chairman of the peace and Good Order Committee of South Waghi has also pledged to be a guarantor for the Applicant. He has pledged K500.00

36. The last three guarantors have been objected too by the State as unsafe guarantors as they are related by blood or by marriage. The Courts have held that relatives and family members are unsafe guarantors. However, in some situations where family members possess reputable status and character and who the community have high regard for such as a Village Court Magistrate, Councilor, Pastors, Peace Mediators, Businessmen and persons with high positions in government and non government organizations can become safe and secure guarantors. This is because when a respected member of the family with standing in the community agrees to be a guarantor it imposes a greater degree of obligation and respect on the part of the Applicant to answer bail. 

37. Not only has the applicant produced relatives or family members as guarantors but another extra two independent people ie. Paulus Moka who is a Public Relations Officer of Komun Construction. While Willii Samai is an Audit Inspector with Finance and Treasury Department in Mt . Hagen. These two are persons of credibility and I accept to be safe and secure guarantors. 

CONCLUSION

38.	I am satisfied that the applicant has shown cause why his detention in custody is not justified and grant the applicant bail on conditions. The conditions I impose here will reflect the seriousness of the charge. The applicant is granted bail on the following conditions:-

1.	The Applicant is admitted to bail for a cash sum of K1500.00 each;

2.	Willie Samai & Paulus Moka are to act as guarantors and shall pay cash surety of K500.0 each.

3.	The Applicant will report to the report to the National Court Registry at Mt. Hagen every Monday between the hours of 9.00am to 3.00 pm and attend all Call overs until his case is dealt with according to law.

4.	The Applicants are to reside at Fispond Mt. Hagen whilst on bail.

5.	The Applicant is not to interfere with any known State witnesses in any way, manner or form whilst on bail.

6.	The Applicant is not to associate himself or be in the company of any known criminals whilst on bail.

7.	The Applicant is not to consume alcohol or any intoxicating substance or drugs whilst on bail

8.	The Applicant is to keep the peace and be of good behavior in the community whilst on bail

9.	The Applicant is not to commit another offence whilst on bail

10.	The Applicants shall not leave Western Highlands Province whilst on bail except with the approval of the Court.

11.	The Applicant shall be released from custody upon production of an official or an original receipt issued by the appropriate authority (Department of Finance) evidencing payment of bail monies of K1500.00 and guarantors surety monies of K500.00 each.

_____________________________________________
Acting Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Applicant