Aposol v State [2014] PGNC 240; N5933 (31 July 2014)

N5933

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (APP) NO.143 OF 2014

IN THE MATTER OF BAIL APPLICATION PURSUANT TO SECTIONS 4 AND 6 OF THE BAIL ACT

KEVIN WARO APOSOL
Applicant

V

THE STATE
Respondent

Wabag: Kawi-iu, AJ.
2014: July 24, 31

CRIMINAL LAW – Practice and Procedure – Application for bail – Applicant charged with wilful murder – Bail not available as of right to a person charged with wilful murder – Dangerous or offensive weapon used – Discretion of the court – Must establish exceptional case – Grounds for bail – Whether exceptional case established – Constitution, section 42 (6) – Bail Act, sections 4, 6 & 9 – Bail refused.

Cases Cited:

Fred Keating v. The State [1983] PNGLR 113
Buka Maken v. The State MP 34 of 2012; (dated 7.03.2012)
Martin Aibel v. The State (2009) N3636

Counsel:
R. Bellie, for the Applicant / Accused
D. Mark, for the Respondent/State

RULING ON BAIL APPLICATION

31st July, 2014

1. KAWI-IU, AJ: The applicant Kevin Waro Aposol by his counsel seeks bail pursuant to sections 4 and 6 and of the Bail Act pending determination of the Committal Proceeding in the District Court.
   
2. The applicant was charged with wilful murder, pursuant to section 299 (1) of the Criminal Code Act and has been remanded in custody since his arrest on the 15th of March 2014.
   
3. The brief facts are that on the 23rd February 2014 about 9.30 am the accused was at Pupanga in Teremanda, Wabag District of Enga Province. It is alleged that the accused in the company of about eight others came in a PMV bus registration number P0609K a Toyota Hiace Dark green in colour armed with high powered firearms. The accused shot the deceased namely Pius Lokalyo aged 51 years from Teremanda village on the right side ribs using a factory made gun. The victim was taken to Wabag General Hospital where he was pronounced dead on arrival. Accused was later apprehended and charged with one count of wilful murder of Pius Lokalyo.
   

4. In support of his application he relies on his affidavit sworn on the 25th April and filed on the 20th May 2014. He also relies on the affidavits of Messrs Raim Das, Bob Paulus and Patrick Pyaoen which were sworn on the 23rd April and filed on the 20th May 2014. These three gentlemen were named as guarantors who had each pledged K500.00 surety in the event of the applicant's failure to comply with any bail conditions.

5. Applicant's background:

1. He is a public servant employed as an Acting Officer in-Charge of the Enga Provincial Tuberculosis Ward at the Wabag General Hospital.
   
2. He is married with two children.
   
3. He is a member of the Seventh Day Adventist Church.
   

6. Factors in support of his application:

i) He is the only person in Enga Province medically qualified to provide professional medical treatment to persons infected with multiple drug resistance tuberculosis and his detention is detrimental to the lives of TB patients.

ii) Whilst in detention he has contracted typhoid fever but had been restricted to seek medical treatment. Annexed to his affidavit is a purported copy of a medical treatment note. (genuine?)

3. He seeks bail in order to go home to get appropriate treatment.
   
4. If granted bail he says will comply with all bail conditions.
   

7. Plea of innocence as factor for release:

1. He says that he will definitely prove his innocence in court of law that these allegations are not true as he is confident that he will be acquitted during trial if the matter is committed to the National Court.
   
2. He did not commit the crime as alleged.
   
3. Paragraphs 5 and 6 of applicant's affidavit seems to suggest that at the time of alleged killing of one Pius Lokalyo he was somewhere else and was not involved.
   

8. Applicant's Undertaking if Granted Bail:

1. He will comply with all bail conditions
2. His three guarantors will make sure he appears in court.
3. He will not escape from the court or police.
4. He will live in Wabag Town, Enga Province beside the Wabag General Hospital in his employee residence.
5. Undertake to pay K1000.00 or more as bail surety.
   

9. The three guarantors are men of high standing in the community, and each has pledged K500.00 surety.

1. Mr Raim Das is a councillor of Yaitenges Ward 19, Laiagam District, Enga Province. He had been a councillor for 12 years and this is his third term. He is aware the accused had been charged with wilful murder and remanded at Baisu Jail. He had known the accused for a long time now. He says the accused is a Seventh Day Adventist and a person of good character and peaceful citizen with good Christian background. He is aware of the risks of being a guarantor and the consequences that follows if the applicant breached his bail conditions. He pledged K500.00 bail surety.
   
2. Mr Bob Paulus is a public servant and engaged as a security supervisor at the Wabag General Hospital. He had known the accused for a long time now. He says the accused is a Seventh Day Adventist and a person of good character and peaceful citizen with good Christian background. He is aware of the risks of being a guarantor and the consequences that follows if the applicant breached his bail conditions. He pledged K500.00 bail surety.
   
3. Mr Patrick Pyaoen is a public servant employed as Deputy Assistant to the Pathology Department at Wabag General Hospital and the Officer in-Charge of HIV and AIDS laboratory for eighteen (18) years now. He is aware accused had been charged with wilful murder and remanded at Baisu Jail. He had known the accused for a long time now. He says the accused is a Seventh Day Adventist and a person of good character and peaceful citizen with good Christian background. He is aware of the risks of being a guarantor and the consequences that follows if the applicant breached his bail conditions. He pledged K500.00 bail surety.
   
4. Mr Ezekiel Punta works at the Wabag General Hospital as Senior Health Extension Officer. He also supervises over the Tuberculosis Ward where about 15 to 20 patients are attended to daily. The TB is a killer disease and great care is taken in treating patients. In the beginning of this year a new type of TB broke out. It is called Multiple Drug Resistance Tuberculosis. This new type of TB is worse than the normal TB and has so far claimed a few lives. The accused is the only person and specialist capable of treating this dreadful disease as he has gone through various training to undertake the challenge of treating this disease. He says that the applicant is the only person that takes care of all the TB patients as well and is more competent and knowledgeable than other employees. His request is for the court to grant the applicant bail so he could continue to provide his specialised skills and services for the benefits of his patients.
   

10. Bail is a Constitutional right granted under section 42 (6) of the Constitution to every person charged with any offence except those charged with treason or wilful murder. To those who are charged with treason or wilful murder, bail is not automatically available to them.

11. An applicant seeking bail on a charge of wilful murder the recourse is by section 4 of the Bail Act, where only the National and Supreme Court can consider bail. This section does not confer unfettered right on the accused/applicant, thus the applicant must establish exceptional ground(s) to convince the court to grant him bail. The onus is on the applicant to show why he should be granted bail: see Fred Keating v. The State [1983] PNGLR 113.

12. The section 4 (1) of the Bail Act provides that those charged with wilful murder, murder, rape, abduction, piracy, burglary, armed robbery, stealing with violence, etc or offences punishable by death, bail shall only be granted by the National Court or the Supreme Court. And section 6 of the Bail Act allows the application to be made at anytime.

13.Section 9 (1) of the Bail Act sets out the grounds where the bail authority may refuse bail upon satisfaction on reasonable grounds been shown by the prosecution on one or more of those grounds stated under that provision. The applicant here had been charged with wilful murder, thus bail is not readily available to him as of right, as the same provision s.42 (6) of the Constitution limits that right.

14. However, in Fred Keating v. The State [1983] PNGLR 113, the Court said that the existence of one of the considerations in s.9 (1) of the Bail Act is not a reason to refuse bail. By the same reasoning even if there is only one of the considerations in s.9 (1) of the Bail Act exists; bail may be refused where the applicant fails to establish any exceptional grounds to grant him bail.

15. Are there exceptional Grounds established by applicant?

16.Notwithstanding the State's failure to object bail the accused has been charged with a very serious offence, punishable by death if convicted. The offence was committed in company of 8 other accomplices. The offence was committed with the use of offensive weapon namely a gun.

17. These are factors in which section 9 of the Bail Act stipulates as consideration for refusal to grant bail.

18. I am satisfied that considerations under section 9 (1) (c) of the Bail Act, exist which would be sufficient ground to refuse bail, unless the applicant/accused show exceptional grounds to establish his continued detention unjustified.

19. The applicant's grounds in support of his bail application are that:

i). He was never involved in the killing.

ii). He was unnecessarily implicated in the killing since he was a member of the mediating team and that he was quite vocal in the dispute settlement.

iii). He was unnecessarily implicated in this allegation which compelled him to voluntarily surrender to the police to ease conflict/tension in the village.

iv). After the killing his village was attacked by the deceased relatives where two of his clansmen were killed. He also received pellet wounds to his left thigh, right forearm and head. Currently these pellets are still embodied to his body which requires operation to remove. He had not received any medical attention at Baisu Correctional Institution.

v). Thus he says that he in any circumstance will not abscond in the event that bail is granted.

vi) Has two (2) proposed guarantors, Snr Stg Jack Imala, of Wabag Police Station and Tand Liu, Village Court Magistrate of Teremanda village, Wabag.

6. The applicant is willing to pay K2000.00 bail as security for his appearance in court.
   

20. To further support the applicant's bail application, he states that there has not been any proper investigation by the arresting officer to identify the role he played in killing the deceased. Although acknowledging the seriousness of the charge he contends that the summary of facts failed to provide detailed background of his involvement to support the allegation.

21. He says the summary of facts alleged that he ran after the deceased with the 4 accomplices armed with bush knives and in the process he and the 4 accomplices killed the deceased. The facts did not disclose the names of the 4 accomplices, and the role each acted in killing the deceased.

22. The arrest was made purposely to quell tribal tensions between the Teremanda village and Kamas village where the deceased originated from.

23. The issues or the grounds raised by the accused/applicant relates to matters unrelated to the application he intends to pursue. In this application he is seeking release on bail pending determination of committal proceeding in the District Court. The issues raised are more relevant to the determination of the substantive matter. Bail application is therefore not about sufficiency of evidence to prove guilt or otherwise of the applicant. It is concern with the right to bail as guaranteed by the Constitution and Bail Act. It is not the intention of the law to detain a person prior to the determination of the guilt or innocence of a person by a court of law, because every person is innocent until proven guilty by the court.

24. A decision by His Honour Gauli AJ in the case Buka Maken v. The State, Cr. 34 of 2012 (07.03.2012) that:

"Whether the applicant is innocent or has denied the allegations made against him, it is not an exceptional ground for granting bail. Denial or innocent of the applicant of the alleged charged is not relevant in the application for bail: see Martin Aibel v. The State (2009) N3636."

25. For applicants seeking bail pursuant to section 4 of the Bail Act they must satisfy the court that the provision of section 9 of the Bail Act which restricts automatic right to bail does not apply. However, in the present case the applicant has been charged with wilful murder which attracts provision of section 9 (1) (c) (i) (ii) (iii) according to the brief statement of facts.

26. The copy of the summary of the facts attached to this bail application shows that the applicant chopped the deceased with a bush knife on the head killing him instantly.

27. The applicant had been charged with a serious offence of wilful murder punishable by death if convicted.

28. At the time of the commission of the offence the applicant was in possession of a dangerous and offensive weapon namely a bush knife. He was in the company of 4 other accomplices who were also armed with bush knives.

29. On a charge of wilful murder an accused has no automatic right to bail and the only right is by invoking section 4 of the Bail Act where only the Supreme and National Court can consider bail application. However, because a wilful murder charge involves serious assault it attracts provision of section 9 of the Bail Act which if not for the discretionary power of the judge will mean an end to bail application.

30. Notwithstanding provisions of section 9 of the Bail Act the judge still has discretion to consider and grant bail to those charged with wilful murder. This can happen only when the applicant can show exceptional case to satisfy the court that their continued detention is not justified.

31. The only evidence of some substance relates to the health condition of the applicant. Applicant states that after the killing of the deceased in March 2014 his village was attacked by the deceased relatives where two of his clansmen were killed. He was also shot and received pellet wounds to his left thigh, right forearm and head. He alleged the pellets are embedded in his body which requires operation to remove. He has not received any medical attention since his detention at Baisu Correctional Institution.

32. A Dr. Micheal Maia of the Wabag General Hospital visited the applicant at the Baisu Jail on the 8th May 2014 (8th April 2014 Medical Report) at the request of the Public Solicitor. The Doctor's Report reveals that:

"Upon examination he was obviously noted to be sick looking, mildly pallor, and not that active and robust. His vitals were within the upper limits of normal, and complained of intermittent fevers especially in the night. Grossly he had suffered about ten (10) pallet wounds; from his left leg, from his thighs, to his lower abdomen, his left forearm and on the right supra-orbital region. The wounds have slowly healed up but he has developed associated headaches and left ankle joint pains. In addition he has developed productive cough for three weeks now, some loss of appetite, some weight loss and lately this week some degree of night sweats.

Thus with no proper investigations to do blood checks, sputum microscopy and chest x-ray it is not conclusive if he has developed Pulmonary Tuberculosis with the prison ground or not. If tuberculosis is confirmed then he will need counselling, support and regular checkups. Other diagnosis includes pneumonia or upper respiratory infections. It is not known either how many pellets have penetrated the skin and the extent of the damage on tissues alone or if there are any bony structures involved.

It is therefore recommended that the patient should be sent to the hospital for a full assessment and better access to medical care. It is noted that, because he was never treated initially prior to his attack and lock up."

33. After considering the applicant's affidavit in respect to the pellet wounds and the Doctor's Report, I am unable to find the date in which the alleged shooting of the applicant took place. If he had in fact been shot, the question is why he has not raised the alarm soon after so he could be taken to the hospital for treatment.

34. There appears to be no finding as to the extent of the injuries or the likely effect of the pellet wounds if not treated. The medical report did not conclusively identify the severity of the type of injuries and the diagnosis as to the extent of such injuries. It does not indicate or suggest that the accused detention in custody may be detrimental to his health. In any case the Doctor's final assessment and recommendation was for the "patient/applicant should be sent to the hospital for a full assessment and better access to medical care ... because he was never treated initially prior to his attack and lock-up".

35. Having considered the applicant's application, I find that he has been:

1. charged with a very serious offence of homicide; and
   
2. that he was in possession of an offensive weapon namely bush knife; and
   
3. in the company of others who were also armed with bush knives; and
   
4. has failed to establish any exceptional ground(s),
   

36. I am therefore not satisfied that the prevailing circumstances allow me to exercise my discretion to grant bail. Thus it follows that the application for bail is dismissed and the applicant be remanded in custody until his charge is determined by the Court.

Orders Accordingly
_______________________________________________________
Public Solicitor: Lawyer for the Applicant / Accused
Public Prosecutor: Lawyer for the State / Respondent.