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Bosman v State [2014] PGNC 75; N5629 (7 May 2014)

N5629


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 96 – 111 OF 2014
IN THE MATTER OF A BAIL APPLICATION PURSUANT TO THE BAIL ACT 1977 ON BEHALF OF CHARLES BOSMAN AND FIFTEEN OTHER APPLICANT/DEFENDANTS


BETWEEN


CHARLES BOSMAN, JEFFERY HENRY, KULUAH SETH, JUNIOR SCHULZ, WISE HARIRIAN, WESLEY ESROM, MARTIN ASKANAROM, PIUS BOSMAN, POKOT HARIRIAN, MARIT SIWIN, JAPHET JOHN, FIDELIS KIAPMELER, TOHORIS KUPE, GURI KIAPMELER, ALEX HARIRIAN AND SIMON HARIRIAN
Applicants/Defendants


AND


THE STATE
Respondent/Informant


Kokopo: Oli AJ
2014: 2nd, 7th May


CRIMINAL LAW – Practice and Procedure – Bail Application – Pending Committal proceedings at District Court before committal to the National Court – Offence wilful Murder – Principles applicable on bail application – Discretion – Bail Act 1977, s. 9(1).


CRIMINAL LAW – Practice and Procedure - Bail Application – Pending Committal proceedings at District Court before committal to the National Court – Offence wilful Murder – Principles applicable on bail application – Discretion – Bail Act 1977, s. 9(1) - Considered bail application is refused, except four (4) applicants with special medical pre-existing conditions - Bail granted with nominated guarantor's with strict conditions attached - Court Orders accordingly.


Cases Cited:


Fred Keating v State [1983] PNGLR 133
John Jaminen v State [1983] PNGLR 122
Re Samir Taleb Abdullah Jaber Anabtawi [1980] PNGLR 195


Counsel:


Wesley Donald, for the Applicant/Defendants
Lukara Rangan, for the Respondent/Informant


RULING ON BAIL APPLICATION


17th May, 2014


  1. OLI, AJ. The Applicant/Defendants each and severally seek:
  2. The Applicants each and severally being accused that on the 11th March 2014 at about 11.30pm at Sohun No 2 village they did each and severally with intent to cause the death of a person, namely EREMAS TOPITAL, unlawfully killed EREMAS TOPITAL, a male person. Thereby contravening section 299 of the Criminal Code Act as amended.

FACTS


  1. The brief facts as alleged against the applicants/defendants is that on the 11thMarch 2014 at Sohun No 2 Village about11.30 pm in the night, did unlawfully kill the deceased through mobbed attack, are now before the Court from Matanakala Village, Namatanai, New Ireland Province. The deceased EREMAS TOPITAL of Sohun No 2 Village, Namatanai, New Ireland Province, was brutally mobbed and attacked and died on the way to Kavieng General Hospital.
  2. The deceased died from serious injurious sustained to his head and other parts of his body that resulted in losing much of his blood. The deceased, earlier in the year 2014 was blamed by the Community, especially those related to the three deaths for committing sorcery act on them from the three village people in the same area. The applicants/defendants now before the Court were alleged to have been involved in conspiring and planning to kill the deceased, and to execute their assassination plan accordingly.
  3. On the first night the applicants/defendants, armed themselves with dangerous weapons went to search for the deceased at his parents' house but they did not locate him [deceased]. On the second night, the applicants/defendants went again in search for the deceased but didn't succeed in finding him. On the third night on 11th March 2014, the applicants/defendants found the deceased at his sister's resident, beat him up with sticks, pieces of timber, knives, spears, iron bars, stones, tied him up like a pig, ready to be slaughtered and left him on the road. The deceased relatives come to his rescue and rushed him to the Namatanai Health Centre, but due to the serious nature of injuries sustained, he was immediately referred to Kavieng General Hospital. Whilst on the way to Kavieng General Hospital for further specialised medical attention and treatment, the deceased died on the way.
  4. On the 10th April 2014, these applicants/defendants were picked up from their village, according to a prepared list of accused persons, and they were brought to Namatanai Police Station where they were cautioned, arrested and charged with wilful murder of the deceased Eremas Topital. The applicants/defendants were also told of their Constitutional rights and escorted to Kavieng Police Station where they were locked up in Police custody.

LAW


  1. The applicants/defendants through their learned counsel Mr. Donald filed application for bail with supporting affidavits pursuant to s. 42 (6) of the Constitution and ss. 4, 6 & 9 of the Bail Act 1977. These provisions read:

42. Liberty of the Person.

(6)A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.


AND relevant sections of the Bail Act 1977 refer to as ss. 4, 6 & 9 and the said provisions are referred to hereunder read:


4. ONLY NATIONAL OR SUPREME COURT MAY GRANT BAIL IN CERTAIN CASES.


(1) A person–


(a) charged with wilful murder, murder or an offence punishable by death; or

(b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or breaking and entering a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence, shall not be granted bail except by the National Court or the Supreme Court.


(2) For the purposes of Subsection (1), "firearm" includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile.


6. APPLICATION FOR BAIL MAY BE MADE AT ANY TIME.


(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.


(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.


(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section 9.


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;


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


(2) In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.


(3) For the purposes of Subsection (1) (i), "narcotic drug" has the meaning given to it in the Customs Act 1951.


8. The applicant/defendants each and severally have filed affidavits in support of their bail application and raised the legal defence of alibi. They all generally claim that they were never at the crime scene nor they participated in the execution of the common unlawful purpose and act, they all have been accused to have carried out, and that is, to kill the deceased Eremas Topital. The defence is required under Order4 Rule 4 of the Criminal Practice Rules to give notice of such defence; it intended to rely on before the commencement of the trial before the National Court, if the Committal Court commits the matter to the National Court. The applicants/defendants learned Counsel submits that they all qualify under the grounds provided under s. 9 (1) (a) to (g) of the Bail Act 1977, therefore the applicants/defendants should be granted bail accordingly with strict conditions attached.


ISSUE


The issue is whether the applicants/defendants who are charged with wilful murder has shown that they are entitled to bail and have shown that their detention in custody is not justified?


APPLICATION OF FACTS TO THE LAW


9. The applicants/defendants are entitled to bail under s. 42 (6) of the Constitution as of right, except the charge with wilful murder and treason. However, Bailing Authority is restricted to bail conditions and grounds under s. 9 (1) of the Bail Act 1977. If, a person is charged with any one of the offences stipulated under s. 4 of the Bail Act 1977, the Bail Application can only be determined by the National and Supreme Court as the ultimate Bailing Authority. Whilst the applicants/defendants have guaranteed right to bail under s. 42 (6) of the Constitution, the applicants/defendants must apply for Bail under s. 6 of the Bail Act to the National and Supreme Court to consider and may grant or refuse Bail, subject to clear provisions and grounds stipulated under s 9 (1) of the Bail Act, of which is quite explicit and imposes strict conditions attached. That is the case in this case now before the Court.


10. The learned Defence Counsel advance a Supreme Court case authority on Re Fred Keating v State [1983] PNGLR 133 (SC257). The applicant is charged with the wilful murder of his wife. He is in custody pending his trial in the National Court. His application for bail in the National Court was refused on 22nd April 1983. He applied to this Court under s. 13 (2) of the Bail Act 1977, but the Supreme Court also refused him bail. His Honour CJ Kidu (as he then was) in responding to the bail application and grounds that the applicant submits for Court to consider and claim that he should be allowed bail because:


  1. He had surrendered his passport (he is a British citizen) to the District Court at Goroka and therefore was unlikely to leave the country.
  2. His life was not threatened nor was it likely to be threatened.
  3. He was unlikely to violate any one of the grounds specified in s. 9(1) (a) to (g) of the Bail Act 1977.

In the majority decision the Court held that:


  1. An application for bail by a person charged with wilful murder is to be determined pursuant to s. 9 of the Bail Act only, i.e. without reference to the interest of justice.
  2. The grant or refusal of bail pursuant to s. 9 of the Bail Act is discretionary in all cases other than wilful murder and treason.

Re Samir Taleb Abdullah Jaber Anabtawi [1980] PNGLR 195, not followed.


  1. (By Kidu CJ and Andrew J, Kapi DCJ not deciding). The grant or refusal of bail pursuant to s. 9 of the Bail Act is discretionary in cases of wilful murder (and treason).
  2. (By Kidu CJ and Andrew J, Kapi DCJ not deciding). Once one or more of the considerations in s. 9(1) are proved bail should be refused unless the applicant shows cause why the detention in custody is not justified.

Re Samir Taleb Abdullah Jaber Anabtawi [1980] PNGLR 195, not followed.


11. The defence counsel drew the courts attention that in the above case the applicant's bail application after committal to National Court and his bail application was refused because the applicant used a dangerous weapon to kill his wife and there was evidence that the applicant was likely to interfere with one of the known State witnesses Miss Anne Thomson. In this case the defence counsel submitted that though there are evidence of wide range of murder weapons used, there is no evidence of a known potential witness that the applicants/defendants were likely to interfere with, if they were granted bail by the Court with strict conditions attached.


12. Even, if prosecution prove one or two of the grounds under s. 9 (1) of Bail Act, the Court has the discretion to consider the merit of the case and existence of exceptional circumstances in it to grant or refuse the bail. The Prosecution submits to the contrary, and I accept that view that the onus is on the prosecution to show that one or two of the grounds is present under s. 9 (1) of the Bail Act and it is sufficient to refuse the bail application. In this case the prosecution has established that murder weapons used were sticks, pieces of timber, knives, spears, iron bars and stones under s. 9 (1) (c) (i) & (ii) and (f) of the Bail Act in paragraph 4 &5 of the affidavit by Senior Sergeant Robert Romulus.


  1. Whilst this case can be distinguished with the Fred Keating's case on the issue of a known one of the State witnesses, but in this case there is no known State witnesses, but the State witnesses are amongst the community at Matanakala Village and Sohun No 1 & 2 villages. Since, there has been mass arrest from the other rival group, the deceased, Eremas Topital's relatives are very anxious and are apprehensive of possible retaliation from the applicants/defendants themselves upon their immediate release now or from their relatives who are in their Sohun and Matanakala Villages. In order to maintain the status quo and to maintain peace whilst the Police investigation is still progressing, it is in the interest of both parties that police investigation must be allowed to progress without any further disruption, to reach its finality and Committal files on Hand Up Brief are thoroughly completed and delivered to each and every applicant/defendant, then this subject matter can be revisited again, if need be.
  2. However, at this early stages of the Police investigations are still progressing and whilst the tension in the village community is still tense, the paramount consideration is to maintain peace and harmony and protection of life and property from both sides, enhance both parties their best spirited co-operation to allow police to complete their thorough investigation without fear and undue intimidation from both parties not to interfere and pervert the natural cause of justice. It is undeniably a fact that applicants/defendants are presumed innocent until proven guilty through the due process of the law before the Court. The onus is on the prosecution to prove every element of the wilful murder charge beyond reasonable doubt, the requisite standard of proof in criminal matters.
  3. The learned Defence Counsel further submits that he has two categories of

applicants/defendants who wish to be granted bail. The first category is applicants/defendants with ill health and the second category are Village leaders in their own right and some are senior church officers and members with Liberty Bible Baptist Church at Matanakala Village and some from Sohun Village. The defence counsel submit that the applicants/defendants have met all the requirements under s. 9 (1) of the Bail Act 1977, therefore they are entitled to bail and this Court has the power under s. 4 of the Bail Act to grant bail for the charge of wilful murder under s. 299 of the Criminal code Act 1975.


  1. The learned Defence Counsel finally pleaded that special consideration be given in considering bail for his clients because the Kavieng cell is filled to capacity and conditions of the cell blocks are not conducive to hold inmates more than it can hold. The Court is of the view that the holding cell capacity is the main concern for the State to improve and increase the holding cell capacity at Kavieng Police Station. It cannot be used as a valid reason and the legal basis to seek bail and be granted bail nor any amount of plea for considerations for loss of employment opportunity and good character reference nor performance of church responsibilities will legitimate the applicants'/defendants' grant of bail from custody. To put it simply, any considerations and grounds do not satisfy the grounds enumerated under s 9 (1) of the Bail Act 1977 and other family suffering reasons advanced are not justifiable grounds for Court to grant bail.
  2. The learned defence counsel finally submit that a number of his clients are with serious medical conditions and their continued stay under police custody will affect their medical conditions greatly hence, they should be given due consideration for bail. This submission is consistent with Prosecutors attitude to these class of applicant/defendants with pre-existing medical conditions and therefore they should be granted bail with strict conditions attached. The medical reason under this category of applicants/defendants bail application is the only justifiable reason that bail application should not be refused.
  3. However, the learned Prosecutor Mr. Rangan submit that he object to the Bail Application by the applicant/defendants' based on the affidavit filed by one of the Investigation Officer, as the case officer, Senior Sergeant Robert Romulus, who is attached to Criminal Investigation Division at Kavieng Police Station. Senior Sergeant Robert Romulus, who categorically object to the applicant/defendants bail application on the grounds enumerated under s. 9(1) of the Bail Act 1977. The learned Prosecutor made reference to grounds under s. 9 (1) (c) (i) & (ii) and (f) of the Bail Act in paragraph 4 &5 of his affidavit and states that:
  4. The learned Prosecutor also alerted the Court that State may consider laying charges under new amendment recently passed by Parliament to Criminal Code Act on Sorcery Related Killings. This is the option Case Officers are awaiting confirmation on the amendments, and once the main perpetrators are clearly indentified who cause the death of the deceased Eremas Topital. The rest of the group members will be charged for participation in the execution and prosecution of the common unlawful purpose under ss. 7 & 8 of the Criminal Code Act 1975.
  5. It is for these reasons and including the obvious breaches under s 9 (1) of the Bail Act 1977, as per the affidavit by Senior Sergeant Robert Romulus. The learned Prosecutor Mr Rangan in passing made reference to the case of John Jaminen – v – State [1983] PNGLR 122. Pratt, J. This was an application under s. 11 of the Bail Act 1977 for bail by a Member of Parliament who was convicted on four count of rape and sentenced to four years imprisonment on each count by Woods A.J at the sitting of the National Court in Mt Hagen. The applicant represents the people of Yangoru-Saussia electorate. On application for bail by an appellant, a Member of Parliament, who had been convicted on four charges of rape, one of the grounds relied upon was that the applicant would not be able to attend the sitting of the Parliament to be held before the appeal was heard and his electors would thereby be deprived of their due representation. The Bail Application was dismissed. The Court held that applicant needed to show "exceptional circumstances" to be granted bail pursuant to s. 11 of the Bail Act 1977. The Court went further to expound what is "exceptional circumstances" it held that: "Whilst "exceptional circumstances" must in some way be related to the particular applicant, they need not be confined to matters entirely personal to the applicant such as health, financial situation or previous good character, but they cannot include that which flows as a natural consequence of the conviction because of the particular status of the convicted person."
  6. The case on foot can be distinguished with the above case, but the reasoning process is somewhat the same. In respect to the John Jaminen case, the applicant was required to show exceptional circumstances under s. 11 of the Bail Act 1977, before bail could be granted. The Court finds the applicant did not show exceptional circumstances, because he brought it upon himself the situation that he was in that he deprived his electorate Yangoru-Saussia representation in the Parliament, which was the consequence of his own action, not someone else. In the present case on foot, the applicant/defendants' upon their arrest are held in custody charged with the serious offence of wilful murder. They need to satisfy the requisite requirements under s. 9 (1) of the Bail Act 1977, why they should not be held in custody. Hence, they must go through the due process of the law and may be vindicated by being found not guilty during the trial proper or otherwise, as the case may be.
  7. My brief recollection of the summary of facts and the background to this wilful murder case, connect to previous suspicion over sorcery related death to deceased Desmond Haririan toward the end of February 2014. According to the applicant/defendants, they claim that, it became a public knowledge in the community that his death was caused through sorcery by two brothers, namely Gordon Kolmau and his brother Toilip Kolmau plus the deceased Eremas Topital. The immediate family reported the matter to Namatanai Police Station but there was no action taken by Police until this latest event on 11th April 2014.
  8. The event of 11th April 2014, took place after much planning as to how to execute the planned attack on the deceased. It took the applicant/defendants and their relatives three solid days to comb down the Matanakala Village and Sohun Villages to execute their plan on the deceased, and they eventually located him at his sister's house and there he was manhandled and viciously attacked, tied both his legs and hands like a pig and ready to be slaughtered and left him helpless on the road. Whilst the defence counsel very strongly voice the applicant/defendants' plea for their innocence in this matter, this is the issue that the trial court will determine. This is not a trial, but Bail Application by applicant/defendants for Court to ascertain whether they have satisfied the grounds and the requirements under s.9 (1) (a) to (g) of the Bail Act 1977, that they should not be held in custody.

CONCLUSION


  1. The bail application is made pursuant to s. 42 (6) of the Constitution and ss. 4, 6 & 9 of the Bail Act 1977. However, the main consideration and the special feature about this case is that applicants/defendants are alleged to have planned and mobilised and comb down Sohun Village in search of the deceased for two clear days for sorcery related death of their relative in February 2014. The relatives of the deceased Desmond Haririan have lodged a formal complaint to the Namatanai Police Station over the suspect of two brothers namely, Gordon Kolmau and his brother Toilip Kolmau and the deceased Eremas Topital, who they claim were responsible for the death of their relative, Desmond Haririan in February 2014.
  2. However, on the third day on 10th March 2014, the search continued and found the deceased Eremas Topital, at his sister's house at 11.30pm in the night, and mercilessly attacked him and tied his hands and legs like a pig and left him lying helplessly on the road. Relatives of the deceased came to his rescue and rushed him to Namatanai Health Centre and he was referred to Kavieng General Hospital for much needed specialist medical intervention for serious injuries sustained, but the deceased died on the way to Kavieng General Hospital.
  3. The State Prosecutor strongly objected the Bail application except to those with special medical conditions supported by Medical Report that justified their release on bail with strict conditions attached. The Court is mindful of the fact that Police investigations are still continuing and the Record of Interview of the applicants/defendants have not being completed as highlighted by the affidavit of Senior Sergeant Robert Romulus of Criminal Investigation Division attached to Kavieng Police Station. The Senior Sergeant Robert Romulus echoed great caution in Court exercising its discretionary power on bail that this type of group committing wilful murder charge is a first of its kind in the province. And the applicants/defendants early release on bail is likely to trigger further community instability and possible retaliation whilst the situation is still tense, and this will greatly have adverse effect on Police Investigation team completing their investigation process and further arrest on those who were involved, but still at large.
  4. The Court in exercising its discretionary power, have considered the

applicant/defendants bail application and refused their bail application and they be remanded under custody. However, the Court also considered the bail application by four (4) applicant/defendants amongst the (16) applicant/defendants, with special medical conditions referred to hereunder. I am satisfied that these applicants/defendants, who have provided medical evidence and medical report showing their current pre-existing medical conditions, support their bail application. If, on the contrary that their bail applications are refused, they are likely to suffer deteriorated health status in custody, and they may end up with worse life threatening medical conditions, when they can get help now. There is a saying in medical profession that: "Prevention is better than cure", and these class of applicants/defendants bail application is hereby granted, and they are:


(i) Junior Schulz – CR No. 99 of 2014 has Surgical Intervention on Appendix Operation about (2) months ago. He is under on-going medical standard treatment.

(ii) Wise Haririan – CR No. 100 of 2014 with Diabetes Mellitus type 2 medical conditions. He is on medical standard treatment.

(iii) Pius Bosman – CR No. 103 of 2014 with Hypertension (High Blood Pressure) medical condition. He is on standard medical treatment for his condition.

(iv) Japhet John – CR No. 106 of 2014.He is known TB patient, and it's an airborne communicable disease. He is under on-going medical standard treatment.
  1. The Court grants bail in the sum of K1000.00 with two nominated guarantors with K1000.00 cash surety with strict conditions attached. Both counsel will provide and agree with strict conditions, including reporting conditions to sub-registry in Kavieng National Court to be imposed on the applicants/defendants bail and to their respective nominated guarantors for Court's endorsement.

The Court Orders accordingly.
_______________________________________________________


Public Prosecutors Office: Lawyer for the State
Donald & Company Lawyers: Lawyer for the Applicants/Defendants

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