Diro v State [2010] PGNC 97; N4074 (12 April 2010)

N4074

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No. 50 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:

KAPI TONY DIRO
Applicant

AND:

THE STATE
Respondent

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

CRIMINAL LAW – Practice and Procedure – Bail application – Practice and – Offence of wilfull murder – Section 299(1) of Criminal Code – Bail Act – Section 9 (1)(c)(i)(ii)(iii) present in commission of the crime – Constitution section 42(6) interests of justice – Interest of community and law abiding citizens. Interests need to be protected – Crime of wilful murder – a serious crime – Nature of the crime operates as sufficient factor against bail being granted.

Cases cited:

Re Fred Keating v The State [1983] PNGLR 133
Re Herman Kagl Diawa [1980] PNGLR 148
The State v. Beko Job Paul [1986] PNGLR 97
The State v. Heisi Tau (1999) N1937

Counsel:

Mr. D. Dotaona, for the Applicant
Mr. A. Bray, for the Respondent

RULING

12th April, 2010

1. KAWI, J: The applicant Kapi Tony Diro applied for bail pursuant to sections 4 and 6 of the Bail Act. He is charged with one count of wilfull murder contrary to section 299(1) of the Criminal Code.

2. The proposed guarantors, Mrs. Sally Mokis and Mrs. Vela Tom both deposed to Affidavits which is relied upon in moving this application. The other affidavit is sworn by the applicant himself.

Statement of Facts

3. The statement of facts is taken from the Police brief annexed to the affidavit of the applicant. It is alleged that on the 25th of November 2009, between 6:00pm and 7:00pm the accused was at Debadogoro village, Rigo, Central Province. The accused was allegedly drunk and was not able to drive and navigate his way through the road leading to his village. As a result his vehicle got bogged down in the mud. So the young youths came to his aid to assist him pull the vehicle out of the muddy area. Whist in his drunken state the accused held up a female passerby and asked for cigarette. His manner and approach to the female was considered highly improper and this provoked a village elder standing nearby who told the accused to refrain from what he was doing to this married woman. When the elderly man stopped the accused, it is alleged that the accused pulled out his bush knife from his vehicle cabin and started hitting the bonnet of his car with the bush knife. He also began swinging the bush knife in a wild and threatening manner to any passerby. At this time, the deceased George Bari came to inquire as to what was happening. The defendant swung the bush knife at the deceased and chopped him over his head causing a deep cut on his head. The deceased was rushed to the nearest Aid post and later to the Port Moresby General Hospital for medical treatment. However, he could not recover but died on the 3rd February 2010.

The Grounds

4. The grounds relied upon are not readily apparent from the materials relied upon. But from counsels submission it is clear that the accused person was emphasizing his presumption of innocence and his right to bail under section 42(6) of the Constitution as providing the basis for this bail application. It was submitted that the accused will also raise self-defence as a defence to the wilful murder charge. In this regard he intends to plead not guilty to any wrong doing.

5. It was argued by his counsel that the accused has a right to bail as enshrined under section 42(6) of the Constitution and this Constitutional entitlement coupled with his presumption of innocence, and the fact that he intends to plead not guilty and raise the defence of self-defence are sufficient grounds for me to exercise my discretion to grant bail. Reference was made to the often cited Supreme Court decision in Re Fred Keating v. The State [1983] PNGLR 133 for the proposition that even if one or more of the considerations under the section 9 of the Bail Act exists, the Court still has the overriding discretion to grant bail.

6. No specific submission was made on the existence or non-existence of the considerations under section 9 of the Bail Act. It was only in passing that counsel submitted that the section 9 factors are not present.

7. The State objected to bail being granted arguing that the serious nature of this case warranted the accused being remanded in custody.

8. It was also submitted that the offence of wilful murder was committed by enlisting the use of an offensive weapon namely a sharp bush knife to cut the deceased on his head and causing a deep wound. It was argued that the commission of this heinous crime involved all the considerations under section 9(1)(c)(i)(ii)(iii) of the Bail Act.

9. It was also argued that there is also the prospect of the accused interfering with State witnesses if released on bail. This is a consideration under section 9(1)(f) of the Bail Act.

10. For all these reasons it was submitted by the State that bail should be refused.

The Law on Bail

11. 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.”

12. 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 Bail Act. 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 exist, the court still has the 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;

(c) 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.

13. Let me address the submissions by learned counsel for the accused and the objections by the learned counsel for the State.

14. It is true that the Constitution guarantees every accused person a presumption of innocence until proven guilty according to law.

15. The same Constitution also entitles every person charged with an offence or detained in custody a right to bail at anytime except when a person is charged for wilful murder or treason, but a bail authority still has the discretion to refuse bail ""if the interests of justice otherwise requires."" A person cannot be unnecessarily detained in custody unless he or she is suspected of having committed a crime, while the whole criminal justice process to determine his or her innocence according to law commences. While an accused person remains innocent until proven guilty according to law, the Constitution also provides for a legitimate process to be set in motion the moment he or she is arrested and taken into custody. There is therefore a presumption that an accused person who is charged and detained in custody is held on some proper legal basis.

16. It appears that the submissions by learned counsel for the accused proceeded on the basis that because of section 42(6) and the presumption of innocence guaranteed under section 37(4)(a) of the Constitution bail is a matter of course. In other words bail is automatic. Under section 42(6) of the Constitution bail is not automatic. Bail is a qualified right and the qualifications are provided under section 9 of the Bail Act. These qualifications can operate as a bar to the grant of bail, but the Supreme Court in Re: Fred Keating made it clear that even if one or more of the considerations are shown to exist, the court still has the overriding discretion to grant bail, with the applicant bearing the onus of showing why his continued detention is not justified. Therefore it would be erroneous to think that because of these constitutional entitlements bail would come as a matter of course.

17. In the Courts view a bail authority should carefully consider the interest of the applicant to be left out on bail and the wider interests of the community of law abiding citizens to have offenders dealt with according to law once they are brought before the courts in a manner that is prompt, effective and less costly.

18. This involves a bail authority taking into account the considerations prescribed under section 9 of the Bail Act and such other factors the bail authority considers appropriate in deciding whether or not to grant bail.

19. The interests of the society to see offenders deal with promptly and effectively according to law is well encapsulated in the phrase ""interests of justice."" While it is clearly in the interests of an accused person to be out on bail, I must also carefully assess whether it is in society's interests that an accused should be out on bail. The ""interest of justice"" involve in my opinion all those considerations prescribed under Section 9 of the Bail Act, considerations such as the prevalence and the nature of and the seriousness of the offence.

20. In my opinion, the notion ""interest of justice"" as stated in section 42(6) of the Constitution and section 3 of the Bail Act is concerned with the protection of the community at large and the law abiding citizens, from those who offend, or are alleged to have offended against them until such a time when their guilt or innocence is determined according to law. See The State v. Heisi Tau (1999) N1937. In that case of The State v. Heisi Tau, Sakora, J stated that interests of justice may involve a consideration of any one or more of the factors or circumstances enumerated under s.9(1) of the Bail Act. He made it clear that section 9(1) provides that bail should not be refused unless the Bail Authority is satisfied on reasonable grounds as to the existence of one or more of those factors or considerations.

21. In this case a most cursory examination of the prescriptions under section 9 reveals the existence of the considerations under section 9(1)(c)(i)(ii)(iii). It is alleged that the wilful murder was perpetrated upon the victim with the use of an offensive weapon namely a bush knife. Secondly, actual threats and actual violence was used in the commission of the offence. This also included the accused shouting at any passerby, behaving wildly while swinging the bush knife and the aggression displayed when swinging the knife. I therefore find that the factors prescribed under section 9(1)(c)(i)(ii)(iii) are all established and made out.

22. The crime of wilful murder is a serious matter. This court considers that the wilful murder of a person is in effect taking the life of another fellow human being unlawfully. Society''s abhorrence to this crime stems not only from the Ten Commandments in the sacred Scriptures. The modern state has legislated the taking away of another life by another person unlawfully as a serious indictable offence which is punishable by very stringent sanctions and punishments. The Criminal Code prescribes life sentence and in some aggravated circumstances the ultimate penalty of death is prescribed for offenders. This shows society's abhorrence and abomination to this vicious crime.

23. Christian churches and organizations as well as the law abiding citizens of the community recognizes unlawfully taking away the life of another person as a very grave cardinal sin that violates the Ten Commandments of God. And so in my view the interests of the law abiding citizens of the community to be protected against those who offend or are alleged to have offended warrants the continued detention of the accused in custody.

24. Another closely related matter which I also consider is the nature of the crime of wilful murder itself.

25. In Beko Job Paul [1986] PNGLR 97 Wilson J, made it clear that the nature of the offence itself may have the effect of operating as a sufficient factor to refuse bail, unless the Court is convinced that the continued detention is not justified. The crime of wilful murder is therefore no doubt a very serious indictable offence. In my view, the nature of this case falls into a classic statement by Wilson, J in the State v Beko Job Paul which I adopt that ""the interests of justice are not served by failing to give special significance to this type of crime and the consequences that flow, or could flow from it.""

26. I am of the view that the interests of the society has to be protected from those who offend, or are alleged to have offended from roaming around freely. Accused persons must realize, that they have forfeited their right to live and move around freely in the community the moment they are suspected of a crime and are arrested and taken into lawful custody. These interests cannot be protected if the accused is released on bail. The Court finds that the nature of the crime of wilful murder in this case is in itself a serious matter warranting the continued detention of the accused in custody.

27. In the end I find that the accused has failed to discharge the burden of showing as to why his continued detention in custody is not justified. Given the seriousness of this crime, I am of the view that the communal interest of all law abiding citizens would be best served and protected by the continued detention of the accused in custody. I would therefore refuse bail and order the continued detention of the accused.

Guarantors

28. The accused nominated two prominent persons of standing in the community as guarantors. Both these persons are prominent citizens and are in no way related to the accused person. I would readily approve their nominations as guarantors

_____________________________________
Dotaona Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent