Kipungi v State [2014] PGNC 295; N5922 (29 April 2014)

N5922

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (APP) NO. 93 OF 2014

In the Matter of Bail Application pursuant to Constitution,
Sections 4 and 6 Bail Act

WILLIAM KIPUNGI
Applicant

V

THE STATE
Respondent

Wabag: Kawi-iu, AJ.
2014: 25, 29 April

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

29th April, 2014

1. KAWI-IU, AJ: The applicant William Kipungi by his counsel seek bail pursuant to section 42 (6) of the Constitution and sections 4, 6 and 9 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 in custody since his arrest on the 16th of March 2014.
   
3. The brief facts are that on the 10th March 2014 the accused was at Kopen, Wabag District in Enga Province. There was a gathering to discuss the appointment of Kopen Secondary School Principal. In the process arguments flared up and a fight ensured. It is alleged the defendant and four (4) accomplices ran after the deceased Nicholas Tombiam armed with bush knives. The accused chopped the deceased with a bush knife on the head killing him instantly.
   
4. The accused and his four (4) accomplices fled towardsTeremanda village where they escaped. Accused was later apprehended at Wabag town and taken to the Police Station where he was formally charged with the murder of Nicholas Tombiam.
   
5. In support of his application sworn on the 16th April and filed on the 24th April 2014 he relies on his affidavit sworn and filed on the same date. His grounds for the application are:
   

i). The police charge me under section 299(1) CCA alleging that I was involved in the killing of Nicholas Tombiam.

ii). I am raising general denial since I have never at one stage assisted in the killing of the Secondary School Inspector at Kopen Secondary School.

iii). I was unnecessarily implicated in this allegation which compelled me to voluntarily surrendered to the police to ease conflict/tension in the village.

iv). I am a Secondary School Teacher and that my students' education will be affected given my detention.

v). I have voluntarily co-operated with my village elders and surrendered to the police. Thus in any circumstance I will not abscond in the event that bail is granted.

vi) Has two (2) proposed guarantors, Fr. Aron Sakan, Catholic Priest and Amaso Akus, Chairman of Kiwimanda Village Court, Wapenamanda District.

6. The two guarantors are men of high standing in the community, and both have pledged K500.00 and K250.00 sureties' respectively.
   
7. Fr. Aron Sakan states that he had known the accused since their school days at St Fidelis Seminary in Madang for 2 years and 3 years at Bomana Major Seminary. He is willing to be his guarantor because there are some related problems which might affect the Catholic Diocese if the accused is denied bail. He is of the opinion that the accused should be granted bail given his denial to the charge and also to avoid illegal road blocks by the relatives of the accused for the public travellers at Wapenamanda related to accused being locked up. He pledged K500.00 surety for the proposed bail.
   
8. Amaso Akus states that he had known the accused since birth because they came from the same village. He is of the opinion that the accused should be granted bail given his denial of the charge. He pledged K250.00 surety for the proposed bail.
   
9. The accused is willing to pay K2000.00 bail as security for his appearance in court.
   
10. The State was indifferent in its response to the accused application. After referring to section 9(1) (c) of the Bail Act the State conceded to the accused/applicant's purported grounds for his application to bail as deposed in paragraph 6 of his affidavit in support of the application, which have been alluded to in paragraph 5 above. Thus, the State had no objection for the accused to be granted bail.
    
11. 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.
    
12. 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.
    
13. For 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.
    
14. 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.
    
15. 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. 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.
    
16. Notwithstanding the State's no objection to accused application to grant him bail the accused has been charged with a very serious offence, punishable by death if convicted. The offence was committed in company of 4 other accomplices. The offence was committed with the use of offensive weapon namely a bush knife. These are factors in which section 9 of the Bail Act stipulates as consideration for refusal to grant bail.
    
17. 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.
    
18. The applicant's grounds in support his bail application are that:
    

i). The police charge me under section 299 (1) CCA alleging that I was involved in the killing of Nicholas Tombiam.

ii). I am raising general denial since I have never at one stage assisted in the killing of the Secondary School Inspector at Kopen Secondary School.

iii). I was unnecessarily implicated in this allegation which compelled me to voluntarily surrendered to the police to ease conflict/tension in the village.

iv). I am a Secondary School Teacher and that my students' education will be affected given my detention.

v). I have voluntarily co-operated with my village elders and surrendered to the police. Thus in any circumstance I will not abscond in the event that bail is granted.

vi) Has two (2) proposed guarantors, Fr. Aron Sakan, Catholic Priest and Amaso Akus, Chairman of Kiwimanda Village Court, Wapenamanda District.

vii) Will pay K2000.00 bail and

viii) Comply with all bail conditions

20. I am not convinced that the purported grounds alluded to by the accused/applicant are the kind of grounds envisage under the expression exceptional grounds. All the matters raised by the accused are not exceptional grounds and in the main are matters best dealt with during the substantive hearing of the charge. These are not matters that can be raised at the hearing of bail application as grounds to justify grant of bail.

19. I refer to a case by Gauli Aj of 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."
    
20. The applicant's proposed guarantors no doubt are persons of high standing in the community. However, in numerous cases, the National Court has said that proposed guarantors being men of high standing in the community will not make a case an exceptional ground to grant bail: see Martin Aibel v The State (2009) N3636.
    
21. Further it appears the applicant and the two guarantors do not live in the same village or community for purpose of fulfilling their role in supervising the applicant to comply with bail conditions. From the guarantors affidavits in support of the bail application one Amaso Akus, village court magistrate lives in Wapenamanda, and Fr. Aron Sakan is stationed at Mariant Parish, in the Kandep District of Enga Province. The applicant has not given any address of his residence for purpose of supervision by the guarantors. His only address was that he was a Religious Education Instructor at Kopen Secondary School near Wabag Town. This would make it difficult for the guarantors to check on the applicant if bail conditions are being complied with, since the locations of guarantors and applicant are many miles apart.
    
22. The State submitted that the applicant was armed with a bush knife. That all the State witnesses have seen the applicant with his 4 other accomplices armed with bush knives at the time of the commission of the offence.
    
23. 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.
    
24. The applicant had been charged with a serious offence of wilful murder punishable by death if convicted.
    
25. 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.
    
26. 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.
    
27. 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.
    
28. Having considered the applicant's application, conclude that the applicant:
    

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

Ordered Accordingly.

_________________________________________________________
Public Solicitor: Lawyer for the Applicant / Accused
Public Prosecutor: Lawyer for the State / Respondent