Aibel v State [2009] PGNC 51; N3636 (21 May 2009)

N3636

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 115 OF 2009

IN THE MATTER OF THE BAIL ACT CHAPTER 340

AND

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

BETWEEN

MARTIN AIBEL
Applicant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Wabag: Makail, J
2009 : 8th & 21st May

CRIMINAL LAW - Bail - Applicant charged with wilful murder - No exceptional circumstances shown - Alleged offence consists of serious assault and violence to another person - Security of applicant under threat - Real likelihood of absconding bail - Application refused - Constitution - Section 42(6) - Bail Act - Sections 4, 6 & 9(1)(a),(c)&(e) - Criminal Code - Section 299.

Cases cited:
Re Fred Keating -v- The State [1983] PNGLR 133
Re Kou Kua[1984] PNGLR 22
Steve Lester -v- The State (2001) N2044
Mathew Yukai Mandalo -v- The State: MP No 420 of 2008 (Unnumbered & Unreported Judgment of 18th November 2008)
Malaki Kongo & Joe Akusi -v- The State (1996) N1544
Michael Aia & Michael Maneba -v- The State (2001) N2124
Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27th February 2008)
Paul Pawa -v- The State: MP No 491 of 2008 (Unnumbered & Unreported Judgment of 9th January 2009)

Counsel:
Mr. P. Kumo, for the Applicant
Mr. S. Kesno, for the Respondent

RULING ON APPLICATION FOR BAIL

21 May, 2009

1. MAKAIL J: This is an application for bail by the Applicant 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 Jerry James of Takeanda village on 9th September 2008 contrary to section 299 of the Criminal Code. The application is made pending trial in the National Court.

BRIEF ALLEGATIONS OF FACT

2. According to the Affidavit of the Investigating Officer First Constable Gideon Gipson sworn on 23rd March 2009 and filed on 24th March 2009, it is alleged that the Applicant from Takeanda village in a remote area in the Wabag District of this province was seen in the company of three other persons at Takeanda village on 08th September 2008 between the hours of 9:00 am and 10:00 am. There was an argument between the deceased’s family and the Applicant over the Applicant’s pigs destroying the deceased’s garden during the night. The Applicant and the three others attacked the deceased whereby the Applicant produced a shot gun and shot the deceased on his head, killing the deceased instantly. The Applicant was apprehended and charged for killing the deceased.

GROUNDS FOR APPLICATION

3. The Applicant has vigorously denied the offence. He said that he had not meant to kill the deceased. It was an accidental killing and will be raising the defence of accident. He sought bail because he wanted to return to school as at the time of the alleged killing, he was doing Grade 5 at Karapusmanda Primary School.

4. The Applicant has also proposed two guarantors. They are:

1. Steven Kalyingi; and

2. Iso Willy.

5. Steven Kalyingi in his Affidavit sworn on 17th March 2009 and filed on 18th March 2009 deposed that he is a step father of the Applicant and a teacher at Karapusmanda Primary School in the Wabag District. He resides at the school and said that he is aware that the Applicant had been charged with a very serious offence of wilful murder and promised to ensure that the Applicant would reside with him at the school and comply with all the bail conditions in the event that bail is granted. He also pledged to be one of the guarantors of the Applicant and is prepared to put up K300.00 as cash surety if the Applicant is given bail. He is fully aware of the duties and responsibilities of a guarantor and knows the risks involved if appointed by the Court as one of the guarantors of the Applicant.

6. Iso Willy deposed in his Affidavit sworn on 17th March 2009 and filed on 18th March 2009 that he works with the Department of Primary Industry based in Wapenamanda as a Rural Development Officer. He is aware that the Applicant has been charged with a very serious offence of wilful murder. He pledged to be one of the guarantors of the Applicant and is prepared to put up K300.00 as cash surety if the Applicant is given bail. He is fully aware of the duties and responsibilities of a guarantor and knows the risks involved if appointed by the Court as one of the guarantors of the Applicant.

7. The State has filed four Affidavits in reply and made submissions in opposition to the application. These Affidavits are for the following persons:

1. First Constable Gideon Gipson, the police investigator of the alleged killing;

2. Jacob Neah, the father of the deceased;

3. Palus Kakiyo, a village leader and member of Pina Catholic Church; and

4. Nickolas Penao, a village leader and elder of Takeanda Lutheran Church.

PARTIES’ SUBMISSIONS

8. Counsel for the Applicant submitted that the first, Applicant has denied committing the offence and will vigorously defend the charge. Secondly, he submitted that the guarantors of the Applicant are men of standing and have prepared to risk their own lives to act as guarantors of the Applicant. That in itself constitutes an exceptional circumstance and based on the Re Fred Keating [1983] PNGLR 133, bail should be granted to the Applicant. Finally, the Applicant suffers from a nasal blockage as a result of an alleged assault by the relatives of the deceased. As a result, he does not sleep well. He needs medical treatment.

9. The State prosecutor opposed the application for bail. He gave three reasons for opposing the application for bail. They were:

1. the Applicant is unlikely to appear for trial if granted bail because he does not have a fixed address and is disqualified by section 9(1)(a) of the Bail Act;

2. the alleged offence consists of serious assault to another person and use of weapon, thus is qualified by virtue of section 9(1)(c) of the Bail Act; and

3. for the Applicant’s safety and protection, he should be held in remand by virtue of section 9(1)(e) of the Bail Act.

ISSUES

10. From the evidence and the submissions of both counsel, the first issue is whether the Applicant has shown that none of the considerations under section 9(1) of the Bail Act are present in his case. But even if they are present, the second issue is, whether the Applicant has shown an exceptional case for the Court to exercise its discretion to grant bail.

REASONS FOR DECISION

11. Having heard both counsels’ submissions for and against the application, I am satisfied that this application has no merits. It is clear from the evidence of the State witnesses that the Applicant is disqualified by the presence of the considerations under section 9(1) of the Bail Act, in particular of subsection 1(a), (c) & (e), that is they are those considerations that the State prosecutor has alluded to in his submissions when opposing the application. I need not repeat them here suffice to say that the Applicant has not disproved them. I give my reasons hereunder.

12. First, it is clear from the evidence of the State witnesses that the Applicant hails from a village located on the Sambemanda mountain range overlooking the Aiyel valley and Tsak valley. It is a remote area with no road access, thus making it unlikely that the Applicant will appear at his trial if granted bail. The Applicant has proposed an alternative place of abode in the event that he is granted bail and that is that he will reside with his step father, Mr. Kalyingi, who is one of his proposed guarantors at the school at Karapusmanda Primary School whilst awaiting this case to be completed. That may be well and an ideal alternative proposal, but I have a problem with that proposal.

13. This leads me to the second ground raised by the State in opposing the application for bail and that is, the Applicant’s safety and protection. It is clear from the State witnesses’ evidence that first the situation after the alleged killing of the deceased by the Applicant is still tense, noting that the alleged killing only took place about 8 months ago. Secondly, no customary compensation has been paid by the Applicant and his relatives to the family and relatives of the deceased. It is also said that no peace and reconciliation ceremony has taken place between the Applicant and the deceased’s family and relatives. Thus, any acts to encourage or acerbate the already tense situation on the ground should be avoided at all costs.

14. In my view, releasing the Applicant out on bail and allowing him to go and reside at proposed location where it is readily accessible to the relatives of the deceased is to place the Applicant’s personal safety in great danger. In my view, the Applicant’s personal safety is a matter that the Court should not brush aside lightly. Once it is raised by the State, it must be given serious consideration and in this case it has been raised by the State and I am satisfied that the Applicant’s security is under threat. Thus, it is in his best interest that he be remanded until the Court decides the charge against him.

15. Finally, in respect of the State’s claim that the alleged offence consists of serious assault and violence to another person, again the Applicant has not disproved the claim by the State. The allegations against the Applicant are serious because it is alleged that the Applicant killed the deceased by shooting him on his head with a shot gun. Therefore, I am satisfied that the State has shown that the alleged offence consisted of a serious assault and threat of violence to another person. The consideration under section 9(1)(c) of the Bail Act is present in this case, hence the Applicant is disqualified.

16. Turning to the second issue now, has the Applicant shown an exceptional case that bail be granted to him? The offence of wilful murder is a very serious offence. It is a deliberate act of termination of one’s life by another. That is why Parliament decided that bail is not readily available to a person charged with this offence. See section 42(6) of the Constitution. The reasoning behind this law is that, persons accused of committing this offence must be separated from the society by being locked away so that the society is freed from such persons until the Court decides their guilt or otherwise.

17. If persons accused of committing wilful murder think that they ought to be freed for the time being whilst awaiting their trial, they do have a right to apply for bail to the Supreme and National Courts pursuant to section 4(1) of the Bail Act. This provision gives jurisdiction to only the Supreme and National Courts to entertain applications for bail. But, whilst 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 are present, the onus is on the Applicant to show why his detention in custody is unjustified: See Re Fred Keating’s case (supra) and Re Kou Dua [1984] PNGLR 22.

18. In my view, the onus is an onerous one and falls on the Applicant to discharge it. In Re Kou Dua’s case (supra), a case of wilful murder at p 23 of the judgment, the late Chief Justice Sir Buri Kidu stated that:

"In the Re Keating [1983] PNGLR 133, the Supreme Court last year held that in the case of a bail application of a person charged with willful 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."

19. See also Steve Lester -v- The State (2001) N2044 and Mathew Yukai Mandalo -v- The State: MP No 420 of 2008 (Unnumbered & Unreported Judgment of 18th November 2008).

20. Can it be said that the two proposed guarantors, being men of high standing in the community make this case an exceptional one? The short answer to that question is, no, it is not. For what is exceptional grounds, see Malaki Kongo & Joe Akusi -v- The State (1996) N1544, Michael Aia & Michael Maneba -v- The State (2001) N2124 and Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27th February 2008).

21. Secondly, whether he is innocent or has denied the allegations made against him is not an exceptional ground for the Court to grant bail. It has been said many times by the Court in the past that denial or innocence of an Applicant to the commission of the alleged offence is not relevant in an application for bail. Therefore, I reject the Applicant’s submission that his case is an exceptional one.

22. Finally, I accept that the deteriorating medical condition of an Applicant is an exceptional ground for bail. In this case, the Applicant deposed in his Affidavit sworn on 17th March 2009 and filed on 18th March 2009 that he suffered a nasal blockage as a result of an alleged assault by the relatives of the deceased. As a result he does not sleep well and requires medical treatment.

23. I am not satisfied that the Applicant has sufficiently proven this ground because there is no evidence in a form of a Medical Report to verify the Applicant’s claim that he suffered a nasal blockage. That is, there is no Medical Report from a doctor to first, confirm such an injury, secondly, the extent and seriousness of the injury and finally, whether special treatment is required and the urgency of it. I distinguish this case from Paul Pawa -v- The State: MP No 491 of 2008 (Unnumbered & Unreported Judgment of 06th January 2009) where in that case, I had granted bail because I was satisfied that the Applicant suffered a serious illness associated with high blood pressure. He had produced a Medical Report and an Affidavit from a doctor to verify the seriousness of the illness and the need for close observation and treatment. Here, there are none of these evidence to support the Applicant’s deteriorating medical condition.

CONCLUSION

24. In the end, I am not satisfied that the Applicant has made out his application for bail and I refuse it accordingly. He shall be remanded until then.

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Applicant