Ken v State [2015] PGNC 210; N6107 (26 October 2015)

N6107

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (APP) No.340 of 2015

IN THE MATTER OF AN APPLICATION FOR BAIL

BETWEEN:

SADRICK KEN
Applicant

AND:

THE STATE
Respondent

Mt. Hagen & Waigani : David, J
2015: 22nd & 26th October

CRIMINAL LAW – application for bail – applicant charged with one count of wilful murder – third year nursing student – expression of desire to do final examinations - failure to do final examinations to have dire consequences - bail granted only in exceptional circumstances – onus on applicant to show cause why continued detention not justified – no exceptional circumstances shown – application refused.

Cases cited:

Bernard Juale v the State (1999) N1887
Bobby Seki v The State (2013) N5358
In the Matter of an Application pursuant to Section 13 of the Bail Act; Bernard
Philip Maru and Arua Oa v The State (2001) N2045
Re Application for Bail by Paul Lois Kysely [1980] PNGLR 36
Re Herman Kagl Diawo [1980] PNGLR 148
Re Fred Keating v The State [1983] PNGLR 133
Re Kou Dua [1984] PNGLR 22
The State v Beko Job Paul [1986] PNGLR 97
Uriap v The State (2009) N3822

Counsel:

Terry Berem, for the Applicant
Joe Kesan, for the Respondent

RULING

26th October, 2015

1. DAVID, J: This is the Court's ruling with regard to the application by Sadrick Ken (the Applicant) to be admitted to bail pursuant to Sections 4, 6 and 9 of the Bail Act.

2. The Applicant relies on the following documents:

(a) Bail Application dated and filed on 21st October 2015;

(b) Affidavit in Support of the Applicant sworn on 20 October 2015 and filed on 21st October 2015;

(c) Affidavit of Guarantor of Pastor Eric Tal sworn and filed on 21st October 2015;

(d) Affidavit of Guarantor of Alfred Kombuk sworn and filed on 21st October 2015.

3. The Respondent did not contest the application. Mr Kesan for the Respondent reasoned that this was because; the offence was allegedly committed during a mob raid involving the Applicant's tribesmen and in the light of the Applicant's assertions in his affidavit denying any involvement; and the Applicant's expression of a desire to do the final examinations which would be most detrimental on his future in so far as his education was concerned if not given the opportunity through his continued detention in custody.

4. The Applicant was arrested on 17th September 2015, and charged with one count of wilful murder under Section 299 of the Criminal Code. The charge is preferred in Information laid by Senior Constable Bill Kundala of the Banz Police Station on 19th September 2015, against 47 defendants including the Applicant. A copy of the Information is annexed to the Applicant's affidavit and marked as annexure B1.

5. The Information is supported by a Summary of Facts, a copy of which is annexed to the Applicant's affidavit and marked as annexure B2. It is alleged that on Thursday, 17th September 2015, the Applicant and 46 others were amongst fellow tribesmen who conducted a raid against the Andapang tribe who reside in the Banz area of the Jiwaka Province between Banz town and the Waghi River starting from Banz town when they burnt down 200 dwelling houses, slaughtered domestic animals, destroyed cash crops and chased anyone in sight at the opposing tribe's village. It is alleged that during the course of the raid at about 1:00 pm at Apa Coffee Plantation at Banz, they wilfully murdered a 15 year old male namely Siwi Kaulo who was on his way home from school. It is further alleged that the deceased was repeatedly chopped on his body namely, at his neck, ear, fingers and an arm with bush knives and was left near a burning house thereafter.

6. The Applicant fervently denies the charge and the allegations contained in the Summary of Facts. He states that he was arrested simply because his tribesmen were involved in a mob fight and he has an alibi.

7. The case is currently before the Committal Court.

8. The Applicant is a 23rd year old male adult from Kudjip in the Jiwaka Province and is single. He is a member of the Nazarene Church. Prior to his arrest and detention, he was a third year nursing student at the Nazarene Nursing College in Kudjip. Two letters from the Principal of the Nazarene Nursing College, Wallace W Kintak dated 14th and 19th October 2015 respectively, copies of which are annexed to the Applicant's affidavit as annexures A1 and A2, confirm his status. The Principal states that final examinations were conducted on 19th October 2015 and he has extended time for the Applicant to do them before the end of the month and that if the Applicant does not do them, he will not graduate at the end of the year and his future will be jeopardised. He therefore expresses the desire that the Applicant be allowed bail.

9. The reasons and circumstances that the Applicant relies on to support his application for bail are set out at paragraph 9 of his affidavit. Amongst these, the Applicant deposes that the dire consequences that his failure as a third year nursing student to do the final exams this month will entail such as not graduating at the end of this year and therefore jeopardizing his future is an exceptional circumstance justifying why his continued detention in custody was unjustified.

10. In his affidavit, the Applicant proposes cash bail of K2,000.00.

11. The Applicant has nominated Pastor Eric Tal of the Kopsip Nazarene Church, Kudjip and Albert Kombuk of Kudjip to be his guarantors. Both proposed guarantors pledge cash surety of K500.00 each.

12. The constitutional right to bail accorded to persons arrested or detained for an offence (other than treason or wilful murder) and qualified by reference to the interests of justice which is premised on the presumption of innocence does not apply to persons arrested or detained for treason or wilful murder under Section 42(6) of the Constitution: Re Application for Bail by Paul Lois Kysely [1980] PNGLR 36; Re Herman Kagl Diawo [1980] PNGLR 148. In cases of wilful murder, bail is granted only in exceptional circumstances and the onus is on an applicant to show by appropriate evidence why his continued detention in custody is not justified: Re Fred Keating (1983) PNGLR 133; Re Kou Dua [1984] PNGLR 22; Bernard Juale v the State (1999) N1887. What constitutes an "exceptional circumstance" is always a question of degree to be assessed in the light of the peculiar circumstances of a particular case: Bernard Juale; In the Matter of an Application pursuant to Section 13 of the Bail Act; Bernard Uriap v The State (2009) N3822.

13. According to Section 4(1) of the Bail Act, only the Supreme and National Courts can entertain applications for bail involving treason, wilful murder and other serious offences listed there.

14. Section 9(1) of the Bail Act sets out the circumstances in which bail may be refused by a bail authority. The list however is not exhaustive: Philip Maru and Arua Oa v The State (2001) N2045. In Philip Maru and Arua Oa, Kandakasi, J suggested eight other factors that may be taken into account before deciding whether or not to grant bail and they are:

1. the applicant being a habitual criminal.

2. whether the applicant is a trustworthy person and will meet any bail terms that may be imposed?

3. the number of bench warrants outstanding for bail jumpers for the kind of offence the applicant is held in custody for.

4. the costs and expenses the society may be put through in trying to bring the applicant to justice if he breaches his bail terms which may mean delays in a speedy trial which may have the risk of the State loosing vital evidence supporting the charge against the applicant.

5. the expense and the trouble the society through the Police Force, has been put through to secure the applicant's arrest and incarceration;

6. whether the proposed guarantors are serious in their proposal having regard to the amount of money they are able to pay in sureties?

7. whether the amount of cash bail proposed has any relative correspondence to the offence with which he has been charged?

8. whether the applicant would have already served his penalty without a trial by reference to the offence with which he has been charged and the possible date for his trial.

15. In Re Fred Keating, the Supreme Court said that in wilful murder cases, only circumstances set out in Section 9(1) of the Bail Act apply and no others, i.e. without reference to the interests of justice in Section 3 of the Bail Act.

16. It was also held in Re Fred Keating that the existence of any one or more of the considerations under Section 9 of the Bail Act does not necessarily mean that bail must automatically or readily be refused. This is because the grant or refusal of bail is discretionary which is exercisable only on exceptional circumstances.

17. In The State v Beko Job Paul [1986] PNGLR 97, it was held that the nature of an offence itself may have the effect of operating as a sufficient factor to refuse bail unless the court was convinced that the continued detention of an applicant was not justified.

18. Of the reasons and circumstances set out at paragraph 9 of the Applicant's affidavit as to why he should be allowed bail, the Applicant advances only one principal ground for a grant of bail, that is, the failure for him as a third year nursing student to do the final examinations will be detrimental to his chances of completing his studies and graduating at the end of the year and his future generally. Mr Berem for the Applicant submitted that the Court should accept and treat this ground as an exceptional circumstance and allow bail.

19. The Applicant further deposes in his affidavit that if granted bail, he will; not abscond to avoid prosecution; not interfere with potential prosecution witnesses; and will not commit any indictable offence. He also deposes that his safety will not be prejudiced as normalcy has been restored following his arrest, detention and charged for the killing; and that he will reside with his parents at Kudjip and go nowhere without the leave of the Court.

20. From material before me, I am satisfied that the considerations under Section 9(1)(c)(i) and (iii) of the Bail Act are present and the serious nature of the offence are sufficient factors for me to refuse bail unless I am convinced by the Applicant that his continued detention in custody is not justified.

21. The Bail Act is a complete code dealing with the grant or refusal of bail and the principles governing the grant or refusal of bail apply to all applicants and are treated like adults irrespective of the status of an applicant: Re Herman Kagl Diawo; Re Fred Keating; Bobby Seki v The State (2013) N5358. In Bobby Seki however, I held that the very young age of an applicant is an exceptional circumstance. I am not aware of any case in this jurisdiction and none has been pointed out to me by counsel that being a student per se is an exceptional circumstance or that the adverse effect or the detrimental consequence on the Applicant of not doing a final examination by a final year student on his future in so far as his education was concerned is an exceptional circumstance. It is in fact a natural consequence of being arrested, charged and detained for allegedly committing such a serious offence with others. I am not persuaded that they amount to exceptional circumstances.

22. With regard to the reason advanced by the Respondent for not contesting the application against the backdrop of a mob raid involving the Applicant's tribesmen and his denial as to involvement, I take that as inferentially inviting the Court to delve into the merits of the case and express an opinion. That is premature and best left for trial, should the case go that distance.

23. Has the Applicant shown cause through an exceptional circumstance why his continued detention in custody is unjustified? No.

24. For all these reasons, I will refuse the application for bail.
_____________________________________________________________
Public Solicitor : Lawyer for the Applicant
Public Prosecutor : Lawyer for the Respondent