State v Undaba [2010] PGNC 51; N3990 (23 June 2010)

N3990

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 208 OF 2010

THE STATE

V

PHIL UNDABA

Mount Hagen: Makail, J
2010: 15th & 23rd June

PRACTICE & PROCEDURE - Bail application - Second bail application - First bail application refused by National Court - Applicant charged for wilful murder and attempted armed robbery - Serious offences - Grounds of - Change in relevant circumstances - Prejudice to welfare of applicant’s family members - Pregnancy of applicant’s wife - Serious ill health of applicant’s wife - Whether exceptional circumstances shown - Application refused - Constitution - Section 42(6) - Bail Act Ch 340 - Sections 4, 6 & 9.

Cases cited:
Papua New Guinea Cases

Re Thomas Markus (1999) N1931
Michael Aia -v-The State (2001) N2124
Malaki Kongo & Joe Akusi -v- The State (1996) N1544
Re Fred Keating -v- The State [1983] PNGLR 133
Kuku Hayara -v- The State Kuku Hayara -v- The State (2008) N3488
Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27th February 2008)

Counsel:

Mr N Nagle, for Applicant
Mr G Konda, for the State

RULING ON APPLICATION FOR BAIL

23rd June, 2010

1. MAKAIL, J: The applicant Phil Undaba is from Koje village in Tufi District of Northern Province and is a policeman based at Mt Hagen Police Station in the Western Highlands Province for the last 15 years. On 11th February 2010, he was apprehended and detained at Mt Hagen Police Station cell. Subsequently, on 16th February 2010, he was charged for the wilful murder of one Jeffrey Sine and attempted armed robbery of cigarettes valued at about K100,000.00, being the property of Pusamo trading at Mainland Holding’s yard at Dobel on the night of 22nd September 2009 contrary to sections 299 and 387 of the Criminal Code. It is further alleged that he committed these offences whilst either assisting and or in the company of other accomplices.

2. Pending committal proceedings before the District Court, he applies for bail. This is his second bail application because the first one was refused on 15th March 2010. The application is made pursuant to section 42(6) of the Constitution and sections 4 and 6 of the Bail Act, Ch 340. It seems the application is based on change in relevant circumstances since the first application was made. The relevant change in circumstances are first, his wife Maureen is 7 months pregnant and is suffering from high blood pressure that may cause complications during delivery of their 7th child. Secondly, she is an asthmatic patient and requires medical treatment: see Re Thomas Markus (1999) N1931.

3. From my perusal of the decision of the Court of 15th March 2010 refusing the first application for bail, it is noted that these two grounds were not raised and considered by the Court. I am, therefore, satisfied that these two grounds are new, nonetheless, they show change in relevant circumstances since the first bail application was refused and must consider them. The issue then is, do they justify a grant of bail or do they establish an exceptional case for the grant of bail?

4. Counsel for the applicant referred me to the cases of Michael Aia -v-The State (2001) N2124 and Malaki Kongo & Joe Akusi -v- The State (1996) N1544 and submits that prolong detention causing adverse effect on welfare of an applicant’s family is an exceptional ground upon which the Court may grant bail in cases where an applicant is charged for wilful murder. I have not received any submission on this point from counsel for the State except a general objection that bail should be refused because first, the applicant’s life is and will be in great danger if he is released on bail. This is because the relatives of late Jeffrey Sine have resented the killing and may avenge his death on the applicant and his accomplices. Therefore, it is in his interest and safety that he be remanded pending the determination of the committal proceedings.

5. Secondly, it is alleged that the applicant was involved with accomplices who are known criminals in the commission of the offences. Two of the accomplices are still at large and a third one has escaped from custody during a mass break out at Baisu CIS in November of last year. Thirdly, the police investigations are still continuing and finally, there is and will be no prejudice to the welfare of the applicant’s family because there is no evidence to suggest that the police department has put the applicant off the pay roll, thus ceasing the family’s fortnightly income to meet their basic daily needs and upkeep.

6. In a case where an applicant is charged with wilful murder, bail is not available as of right: see section 42(6) of the Constitution. It is granted at the discretion of the Court and the Courts have in the past granted bail to applicants charged with wilful murder by applying the exceptional circumstances test. In other words, an applicant charged with wilful murder must establish to the satisfaction of the Court that his or her continued detention is unjustified: see Re Fred Keating -v- The State [1983] PNGLR 133.

7. In my judgments of Kuku Hayara -v- The State (2008) N3488 and Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27th February 2008), I made it clear that prejudice to the welfare of an applicant’s family is not an exceptional circumstance or ground upon which the Court may grant bail where an applicant is charged with wilful murder. In Lawrence Tapi’s case (supra), I considered the case of Michael Aia (supra) which was one of the cases referred to by the applicant’s counsel in his submissions and had respectfully differed from it.

8. In Michael Aia’s case (supra) Davani, J gave some examples of what would amount to exceptional circumstances where an applicant is charged for wilful murder and applies for bail. They were first, the adverse effect or prejudice to the applicant’s defence due to prolong detention, secondly, the prejudice to the applicant’s social activities, thirdly, the prejudice to the welfare of the applicant and family and finally, the prejudice to the employment and business welfare of the applicant. In differing from the views expressed by Davani, J in Lawrence Tapi’s case (supra) in relation to the ground of prejudice to an applicant’s family welfare, this was what I said at p 12:

"Thirdly, as for the Applicant’s family welfare, I again beg to differ from my sister. I am of the view that the prejudice to the Applicant’s family welfare is not an exceptional circumstance. Again, I consider that the prejudice to the Applicant’s family welfare is a natural or direct consequence of being charged and detained for committing an alleged offence. In this present case, again it is my view that the prejudice to the Applicant’s family welfare is a direct result of being charged with two (2) counts of Wilful Murder and one (1) count of Attempted Murder. In my view, it is not an exceptional circumstance which would justify an exercise of discretion in favour of the Applicant."

9. In my view, welfare of an applicant’s family members is a general expression used to describe the well being of an applicant’s family members and extents to and includes a spouse or child’s serious ill health and wife’s pregnancy. When it comes to the question of prejudice, an applicant’s family welfare is not confined to the prejudice that may arise for the daily upkeep and needs of the applicant’s family like buying of food, clothes, accommodation and school fees but involves all facets of a family unit like serious spouse’s or child’s ill heath and wife’s pregnancy.

10. In the present case, the applicant’s wife has produced two medical reports, one by Dr Samuel Maima of Mt Hagen General Hospital dated 11th March 2008 as confirmation of her asthmatic patient status and the other by Dr Sylvester Tati of Mt Hagen General Hospital dated 17th April 2010 as confirmation of high risk of complications at pregnancy. I have perused them but I am not persuaded that her 7 months pregnancy and suffering from high blood pressure which may increase the likelihood of complications during delivery of their 7th child amounts to an exceptional ground for grant of bail. In my view, the likelihood of developing complications causing serious risk to her and her 7th child’s life is an unfortunate event. It has occurred at a time where the applicant as the head of the family is not readily available and cannot be with her at this time of need due to being detained.

11. It is a genuine concern but I cannot say it is exceptional because it is a trial or adversity that occurs in every day life. I mean, sometimes, trials and adversities like this do happen in our lives and we must deal with them as they come. Where trials and adversities of this nature occur at a time where an applicant is in custody for committing an alleged offence or offences, they do not change the status quo of the applicant. The prejudice or adverse effect on the family welfare of an applicant caused by his prolong detention is a natural consequence of being arrested, charged and detained for committing an alleged offence or offences. At the same time, trials and adversities like this cannot justify a grant of bail for someone like the applicant who has been charged for allegedly committing two very serious offences. Neither is her asthma an exceptional ground for the same reasons.

12. On the other hand, where a person is charged with wilful murder, the interest of justice requires that the applicant must be held in custody because it is a very serious offence. In that regard, I must agree with some aspects of the State’s submissions because first, as it is alleged that the applicant was involved with accomplices who are known criminals in the commission of the offences. Whether the accomplices are known criminals, I do not know because there is no evidence to verify the State’s assertion but two of the alleged accomplices are still at large while a third one has escaped from custody during a mass break out at Baisu CIS in November of last year and is still at large, it would not be in the best interest of justice that the applicant should be released on bail.

13. From my perusal of the brief allegations of fact giving rise to the two charges against the applicant, it is alleged that the applicant was involved in the commission of the attempted robbery at Mainland Holding’s yard at Dobel that led to the killing of late Jeffery Sine. First, he was alleged to have been involved in the planning of the armed robbery at Mainland Holding’s yard at Dobel with his accomplices by being in their company and driving around Mt Hagen town and nearby villages picking up accomplices and discussing ways to commit the robbery, secondly in the supplying of a police issued firearm, namely an M16 to his accomplices to use in the robbery and thirdly, the monitoring of police units’ and personnel’s movement at the duty counter and communication room at Mt Hagen police station while his accomplices carried out the robbery. Finally, in the process of executing the plan, one of his accomplices shot dead late Jeffery Sine.

14. While I accept that these are mere allegations and respect his right of innocence until proven guilty by a Court of law under section 37(4)(a) of the Constitution, I cannot simply ignore them. In my view, they are very serious allegations and go to show that the applicant was alleged to have been involved in a well planned and organized crime such that it would not be in the best interest of justice to grant bail. Secondly, in so far as the charge of attempted armed robbery is concerned, it is alleged that weapons (firearms) were used in the attempted robbery by the applicant’s accomplices leading to the shooting dead of late Jeffrey Sine. He is therefore, disqualified for bail under section 9(1)(c) of the Bail Act, Ch 340.

15. Thirdly, while the applicant claims that police investigations have been completed, I am not satisfied that this is entirely true because it must not be forgotten that there were other accomplices allegedly involved in the attempted robbery and shooting of late Jeffrey Sine and investigations by police must extend to and include them to complete the investigations. No evidence has been put before me by the applicant that investigations in relation to his accomplices have been completed. In the absence of such evidence, I accept the State’s submission that investigations are still continuing and an early release of the applicant might prejudice the investigations. Finally, there is and will be no prejudice to the welfare of the applicant’s family because there is no evidence to suggest that the police department has put the applicant off the pay roll, thus ceasing the family’s fortnightly income to meet their daily needs and upkeep.

16. For these reasons, I am not satisfied that the applicant has established that his case is an exceptional one that bail should be granted. Bail is therefore, refused.

Ruling accordingly.

______________________________
Paul Paraka Lawyers: Lawyers for the Applicant
Acting Public Prosecutor: Lawyers for the State