Boas v State [2010] PGNC 245; N3969 (23 March 2010)

N3969

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No. 30 OF 2010

In the matter of an Application for bail under s. 42(6) of the Constitution and s.6 of the Bail Act

BETWEEN:

JERRY BOAS & KARE JUNIOR HENRY
Applicant

AND:

THE STATE
Respondent

Waigani: Kawi, J
2010: 12th & 23rd March

CRIMINAL LAW – Practice and Procedure – Bail application – Offence of willful murder – Section 299 Criminal Code – Bail Act – Section 9 (1)(c)(i)(ii)(iii) established in commission of the crime – Section 9(1)(f) – not established – persons in section 9(1)(f) refers to accused persons and not third persons – Accuseds persons severely beaten by Police and CIS officers, while in custody – Interests of accused persons to be protected – Relatives and family members proposed as guarantors – Guarantors not approved – Conflict of Interests and apprehension of bias a real possibility - Apprehension of real fear for safety while in custody – Exercise of discretion in the interests of justice – Bail granted.

Cases cited:

Re Fred Keating v The State [1983] PNGLR 133
Herman Kagl Diawa [1980] PNGLR 148
Lance Moha v. The State [2009] unnumbered judgment of Kariko, J dated 17th December, 2009.
Re Application for Bail by Paul Louis Kysely [1980] PNGLR 36
The matter of An Application for Bail by Sergeant Pokou Steven & Ors v. The State [1997] N164
The State v. Beko Job Paul [1986] PNGLR 97
Michael Aia and Michael Maneba v. The State [2008] N3511
Cletus Waffi v. The State (2010) unnumbered judgment of Kawi, J dated 2nd March 2010
Casper Wynebegger v. The State (2010) unnumbered judgment of Kawi, J dated 11th March 2010

Counsel:

Mr. D. Dusava, for the Applicant
Mr. D. Kuvi, for the Respondent

RULING

23rd March, 2010

1. KAWI, J: Jerry Boas and Kare Junior Henry applied for bail under section 4 and 6 of the Bail Act. Both are alleged to have wilfully murdered one Marele Kepo at Goilanai village, Alotau, Milne Bay Province on the 18th of December 2009. Following their arrest and being charged for wilful murder under Section 299(1) of the Criminal Code, they were remanded in custody initially at the Alotau Police Station and subsequently at the Giligili Corrective Institution. While in custody they were alleged to have been severely assaulted and beaten up by both Police and CIS officers. It is alleged that the beatings at the hands of CIS Giligili inflicted severe bodily injuries upon them and had it not been for the intervention by the Milne Bay Provincial Police Commander (PPC) Senior Inspector Lincoln Gerari, they would have been killed. The PPC intervened by moving them back to be held in the Police custody at the Alotau Police Station.

2. In making this application the two applicants have both filed their own affidavits which they rely upon. In addition they have nominated their employer, one Mrs. Sahara Ronald Douglas and her husband, Mr. Rumba Minibi who both deposed to affidavits as the proposed guarantors. Both husband and wife pledge K 500.00 each as surety for both applicants in the event of both skipping bail.

THE FACTS

3. The brief facts which I gather from the affidavit materials, is that the two accused and the deceased were all involved in a drinking party when a fight broke out which lasted for 20-30minutes. The fight was over a bottle of beer. After the fight ended, the deceased retreated and as he was going away, he is alleged to have yelled threatening and obscene language at the two accused, whereupon the accused Kare Junior Henry rushed at him and punched him to the ground. As he layed on the ground Kare Junior is alleged to have armed himself with a long bush knife with which he is alleged to have stabbed the deceased in the chest. The deceased died immediately from severe loss of blood. The two accused were then apprehended the next day, and charged with willful murder under s. 299(1) of the Criminal Code.

GROUNDS FOR BAIL APPLICATION

4. The accused through their learned counsel submitted that I take into account the following grounds which should be sufficient to convince me to exercise my discretion in deciding whether or not to grant bail:

(a) Both accused were subjected to very severe and serious assaults from both policemen and relatives of the deceased on the 18th and 19th of December 2009 when they were first taken into Police custody.

(b) They were again severely beaten and their lives threatened by members of the deceased’s family and their friends on the 7th of January 2010 when they were taken to the custody at the Giligili Corrective Institution. The deceased is said to have had many friends amongst the corrective institution staff as after all his father is a Senior Prison Officer.

(c) It is further submitted that any further detention may prejudice their chances of giving appropriate instructions for their defence. In this regard they argue that even before they have the opportunity to talk to their lawyer, the small community of Alotau town is now full of rumour mongers and gossipers all spreading gossips and false rumours that the accuseds had premeditated and planned the murder of the deceased long before the deceased met his fate.

5. It was submitted that in the interests of justice, I should exercise my discretion to grant bail even if the conditions under section 9 of the Bail Act exists. The Supreme Court decision in Re Fred Keating [1983] PNGLR 133 was cited as the authority for this proposition.

STATE’S OBJECTIONS

6. Let me now deal with the State’s objections.

7. The State objected to bail being granted citing the existence of the considerations under section 9 of the Bail Act. To support its contentions, the affidavit evidence of Mr. David Kuvi, learned counsel for the State was submitted and relied upon as laying the factual foundations for the objections.

8. First it was submitted that the wilful murder was committed by using actual violence, threats, serious assaults and an offensive weapon, namely a long sharp bush knife.

9. Hence, the considerations under section 9(1)(c)(i)(ii)(iii) are present. I agree and have no hesitation at all in finding that the commission of the offence of wilful murder involved all the considerations prescribed under section 9(1)(c)(i)(ii)(iii).

10. Secondly, it was submitted that there has already been an interference with State witnesses. In this regard it was submitted that the principal State witness in this case would be one Ms. Liga Boas, the alleged girlfriend of the deceased. The mother Mrs. Sahara Ronald Douglas, who is also a proposed guarantor, never approved of her relationship with the deceased. Hence, when the deceased died, Mrs. Sahara Douglas sent her away to Mt. Hagen allegedly to avoid and evade Police in their investigations. On this basis it was submitted that the consideration under section 9(1)(f) has been made out.

11. It was also submitted that the act of sending her daughter, Ms. Liga Boas, away to Mt. Hagen, apart from constituting the consideration under section 9(1)(f) also called into question the credibility and integrity of Mrs. Sahara Ronald Douglas as a proposed guarantor and the court was asked not to approve Mrs. Sahara Ronald Douglas as a guarantor for that reason. It was argued that Mrs. Sahara Ronald Douglas could not be trusted as a guarantor.

THE LAW ON BAIL

12. The law on bail has been clearly stated in many cases. Section 42(6) of the Constitution guarantees ‘’every person charged, arrested or detained for an offence other than treason and wilful murder to bail at all times from arrest or detention to acquittal or conviction unless the interest of Justice otherwise requires’’. In the case of Herman Kagl Diawa [1980] PNGLR 148, Kearney, DCJ reiterated an accused person’s right to bail as follows:

‘’it is clear from Section 42(6) of the Constitution that an applicant is entitled to bail during the course of his trial, unless the interest of Justice otherwise requires.”

13. The Bail Act then gives effect to Section 42(6) of the Constitution. This right to bail is however not automatic. The right to bail is qualified by the prescriptions enumerated under Section 9 of the Constitution. This means that Section 9 of the Bail Act sets out the criteria which may operate as a bar to the grant of bail. However bail should not be refused for this reason alone. The Supreme Court decision in Re Fred Keating [1983] PNGLR 133 now makes it clear that even if one or more of the considerations under Section 9 are shown to exists, the court still has the overriding and unfettered discretion to grant bail, with the applicant bearing the onus of satisfying the court as to why his continued detention in custody is not justified. Section 9 of the Bail Act is in the following terms;

9. BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

(1) Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:–

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

(b) that the offence with which the person has been charged was committed whilst the person was on bail;

I that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of–

(i) a serious assault; or

(ii) a threat of violence to another person; or

(iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive;

(d) that the person is likely to commit an indictable offence if he is not in custody;

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

(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings;

(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;

(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody;

(j)that the alleged offence is one of breach of parole.

14. I have already found that all the considerations under section 9(1)(c)(i)(ii)(iii) are made out.

15. The other objection is based on section 9(1)(f) – Interference with witnesses.

16. The State as I indicated, strongly submitted that the said Mrs. Sahara Ronald Douglas interfered with the principal witness in this case, one Ms. Liga Boas, who is her daughter by sending her off to Mt. Hagen. This it was argued was a conduct aimed at evading police investigations. The applicant on the other hand submits that Liga Boas is a student attending school in Mt. Hagen. Her going to Mt. Hagen is for educational purposes of attending school and not evading police investigation.

17. Section 9(1)(f) is in the following terms:

(1) Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:–

(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings;(my emphasis)

18. Giving this provision a plain and ordinary construction, I find that the phrase "that the person is likely" refers to the accused person or the person applying for bail.

19. In this case that person would have to be the two accuseds namely Jerry Boas and Kare Junior Henry. This provision cannot be constructed to mean second or third persons such as Mrs. Sahara Ronald Douglas as was submitted by the State.

20. The word "likely" as used in section 9(1)(f) was held to mean likely in the sense of a "tendency or a real possibility." – See case Re Application for Bail by Paul Louis Kysely [1980] PNGLR 36.

21. Mrs. Sahara Ronald Douglas is not the accused and so section 9(1)(f) is not intended to cover her conduct. This section cannot be constructed to mean second or third persons. Such a construction would render an absurd result and would not be in accordance with the intent of this provision. -See Re: Application of Lance Moha v. The State [2009] unnumbered judgment of Kariko, J dated 17th December, 2009.

22. How can Mrs. Sahara Ronald Douglas be said to have likely interfered with State witnesses, when she is not accused of any wrong doing or having committed an indictable offence?

23. I am satisfied that Ms. Liga Boas was sent to Mt. Hagen for the purpose of attending school and not to evade police investigations as alleged by the State.
24. I therefore find that the State has not established the ground under section 9(1)(f).

OTHER CONSIDERATIONS

25. But I must readily accept that section 9(1) of the Bail Act does not contain any exhaustive or conclusive lists of matters a bail authority can take into account to decide whether or not to grant bail. There may be other factors or circumstances that should be considered to determine if the "interests of justice" otherwise requires. See The matter of An Application for Bail by Sergeant Pokou Steven & Ors v. The State [1997] N164 per Akuram, AJ and The State v. Beko Job Paul [1986] PNGLR 97 per Wilson, J.

26. Are there other factors and circumstances that I should consider before granting or refusing bail in the present application?

27. One of the considerations that was taken into account by Her Honour Davani, J when considering bail in the willful murder case of Michael Aia and Michael Maneba v. The State [2008] N3511 was that the welfare of the applicants and family may be prejudiced.

28. Indeed counsel for the accused submitted that I should consider the grounds I outlined above.

29. The first is that the two accused persons were severely beaten, intimidated, harassed and abused initially by Police personnel when they were taken into police custody at Alotau and subsequently by prison officers when they were taken into custody at the Giligili Correctional Institute. The two accuseds alleged that the Policemen and Prison Officers who bashed them up were either the family members or friends of the deceased. This is especially true when the deceased is the son of a Senior Prison Officer. These beatings at the hands of Police and Prison Officers have created real fears in the minds of the accused persons over their security and safety while in custody.

30. Their employer and proposed guarantor, Mrs. Sahara Douglas in fact wrote to the Provincial Police Commander Senior Inspector Lincoln Gerari complaining of the serious assaults on the accuseds. As a result of her protest, the PPC Senior Inspector Lincoln Gerari intervened and brought the accused back to the Alotau Prison for their own safety.

31. The accused submit that even though they are now locked up at the Alotau Police cell, their safety is still not guaranteed. During submissions, I enquired with Defence counsel as to whether the assaults are still continuing or not. I was advised that since their transfer back to Alotau, there are no longer any assaults on them. The State then capitalized on my inquiry to submit that with the transfer of the accused from Giligili back to Alotau Police station cells the assaults have abated. There is no longer any need for the accused to fear for their safety as the assaults are no longer continuing. There is therefore no need to fear for their safety anymore.

32. While the accused did not produce any medical reports to verify the kind of injuries they sustained as a result of the beatings from Police and Correctional service personnel, I find as a fact that the accused were threatened, harassed and severely beaten by both Police and Prison Officers. These beatings from the very people whose responsibility it is to look after inmates and suspects, no doubt created a real fear in the minds of accused persons of their safety even in the hands of law enforcing officers. It does not have to be a continuing assault on the accused persons to create an apprehension of fear at the hands of law enforcing officers. I would therefore accept this as a legitimate fear and concern. I cannot simply ignore their welfare and pretend that everything is fine when it is not. The welfare of the accused is also important if they are to properly instruct their lawyer to run their defence in Court.

33. I would accept that the fear for their lives and safety is a genuine one and does not have to be continuing assaults to create this fear. It does not matter whether the accused persons have been moved back to the Alotau Police station custody, or not the fear created by the severe beatings at the hands of law enforces is a genuine and continuing fear. The accuseds fear that by being in custody their safety is and will not be guaranteed. I accept these as continuing and legitimate fears and would exercise my discretion to allow the accuseds to go on bail in the interests of justice. I am satisfied that the continuing detention of the accused in custody is not justified and the accuseds have discharged the onus placed on them.

34. Another ground that was relied upon by the Defence counsel is that the accused if released would consult their lawyers and give their instructions to him to prepare their case.

35. On its own this is not a good convincing ground for me to exercise my discretion to grant bail. However, as I have already decided to grant bail, the accused can have all the time to talk to their counsels, and also take steps to dispel the rumour mongering that the death of deceased was premeditated.

GUARANTORS

36. The accused persons have nominated their employer, Mrs. Sahara Ronald Douglas and her husband, Mr. Rumba Minibi as their guarantors. The State objects to their nominations and submits that both husband and wife are related to the accused persons, and so there is a fear of apprehension of bias and conflict of interest involved here when family members are nominated as guarantors. A number of both Supreme and National Court judgments were cited as authority for the proposition that relatives and family members should not be nominated as guarantors for fear of placing themselves in a conflict of interest situation and apprehension of bias. Counsel for the State also argued that by sending her daughter, Ms. Liga Boas to Mt. Hagen, Liga being the principal State witnesses, in the case involving the accused, Mrs. Sahara Ronald Douglas has interfered with State witnesses already and so her integrity and credibility is called into question. On this basis also the State also opposes the proposed guarantors. In relation to the issue of interference with witnesses, I have already dealt with this issue, above and I do not see how a third person like Mrs. Douglas can be caught by section 9(1)(f) of the Bail Act.

37. In relation to relatives being nominated as guarantors, I have consistently held that because of the possibility of placing themselves in conflicts of interest situations and creating an apprehension of bias, relatives and family members have not been approved by me as guarantors. In this case, the affidavit of David Kuvi, learned counsel for the State does indicate that the accused Jerry Boas and Ms. Liga Boas are brothers and sisters. And if Mrs. Sahara Ronald Douglas is the biological mother of Ms. Liga Boas, then I must also find that she should also be the biological mother of Jerry Boas, the accused. In other words, the accused is the son of the proposed guarantor, Mrs. Sahara Douglas she has on her part sworn an affidavit in which she says that Jerry Boas is causally employed by herself. She never admitted that she is her biological son. She only deposes to an employer – employee relationship between herself (Mrs. Sahara Douglas) and Jerry Boas.

38. Section 9(2) of the Bail Act empowers me not to apply strict and technical rules of evidence when dealing with a bail matter, but "to act on such information as is available to me."

39. Going by section 9(2) of the Bail Act, then I will accept that Jerry Boas is the biological son of Mrs. Sahara Ronald Douglas as contended for by the State.

40. This then leads me to determine the inevitable: Do I approve the proposed guarantors?

41. In Cletus Waffi v. The State (2010) unnumbered judgment of Kawi, J dated 2nd March 2010 and Casper Wynebegger v. The State (2010) unnumbered judgment of Kawi, J dated 11th March 2010, I refused to approve certain family members as guarantors. In both cases I said;

'Being family members, I am very mindful that there may be some bias and conflict of interest involved. The risk of the applicants absconding bail is very real here than if the guarantors were neutral persons. As much as possible applicants for bail must be very careful when nominating relatives and family members as guarantors. Persons who accept to be guarantors should be neutral persons. I do accept that because these are all family members there is a reason to argue that there may possibly be some apprehension of bias and conflict of interest involved. The fear of absconding bail is real here than if a neutral person was nominated.''

42. I say the same thing here. The chances of placing oneself in a conflict of interest situation is real here, than it would be in an ordinary employer – employee relationship.

43. For this reason I would refuse to approve Mrs. Sahara Ronald Douglas and her husband Mr. Rumba Minibi as guarantors.

44. In view of the above findings and reasons, I hereby order that bail be granted subject to the following conditions; -

(1) the accused Jerry Boas and Kare Junior Henry shall be released on bail subject to Order No. 4.

(2) The cash bail shall be K 800.00 for Jerry Boas and K 800.00 for Kare Junior Henry.

(3) Jerry Boas and Kare Junior Henry shall report to the District Court Registry in Alotau anytime between 9:00am to 3:00pm every Monday until trial of this matter.

(4) The two accused Jerry Boas and Kare Junior Henry shall only be released from Police custody upon satisfying the Court of two neutral persons being nominated as guarantors and the Court approving such guarantors. The two neutral persons shall be nominated and approved by the Court within a week as from today's decision.

(5) Upon the Court approving the two nominated guarantors, they shall pledge a surety of K 500.00 each for both accused, in the event of the accused skipping bail.

Sarea Soi & Co. Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent