Kange v State [2016] PGNC 127; N6321 (16 June 2016)

N6321

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 225 OF 2016

BETWEEN:
FELIX KANGE
Applicant

AND

THE STATE
Respondent

Waigani: Salika DCJ
2016: 16 June

Cases cited:
The State v Justin Parker N6191
The State v Theo Yasause N4871

Counsel:
Mr C Nidue, for the Applicant
Mr P Kaluwin and Ms Malo, for the State

RULING ON BAIL APPLLICATION

16^th June, 2016

1. SALIKA DCJ: This is an application for bail pursuant to S.42 (6) of the Constitution and Sections 6 and 9 of the Bail Act. S42(6) says;
   

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.

2. The Constitutional declaration is clear a person charged for an offence or arrested for an offence, other than for treason or wilful murder is entitled to bail at all times, unless the interest of justice otherwise require.
   
3. Section 6(1) of this Bail Act says;
   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.

4. Section 6 of the Bail Act gives effect to s.42 (6) of the Constitution by making applications for bail to a court at any time after arrest or detention or at any stage of the proceedings.
   
5. This application therefore invokes s.42 (6) of the Constitution and s.6 of the Bail Act. When considering bail consideration under s.9 of the Bail Act will be considered.
   

6. Before I address the substantive bail application the State raised a preliminary issue of jurisdiction on the basis that an earlier bail application was made before Manuhu J and the application was refused and therefore applicant now go to the Supreme Court. The applicant submitted that, yes, he did apply for bail before Manuhu J and that it was refused but he says the first bail application was on a charge of manslaughter but the charge has now been upgraded to murder and therefore the application now is a first bail application on a charge of murder.

7. I agreed with the applicant’s submission that this is a first application on a charge of murder and therefore there is no issue of jurisdiction. This Court sitting is a National Court has jurisdiction to his bail application.
   
8. The application for bail is supported by affidavits filed by;
   1. Felix Kange, the applicant.
   2. Emmanuel Kange
   3. Joseph Lai
      
9. The applicant was charged with manslaughter or unlawful killing charge but a new charge of murder has been preferred against him which will be laid before the Committal Magistrate today 16^th June 2016 in Waigani.
   
10. The brief facts concerning this application as can be deduced from the applicants affidavit filed on 15^th June 2016 are:- The applicant is a Lawyer having been admitted to practise as a lawyer in late 2003. He started working as a lawyer with Paul Paraka Lawyers from 2004 and 2006. Then in 2007 he worked with Poro Lawyers as a Senior Associate. In 2010 he set up his own practice under the name Kange Lawyers and has been so practicing as such until this incident.
    
11. The Summary of facts which I assume were prepared by police allege the following facts;

“That on the 14^th of May 2016 at about 8.00 pm the accused now before the court was in his residence at Section 514 Lot 7, Garden Hills, NCD. With him was his wife Regina Morove (deceased), his wife’s cousin sister Samantha Genia Sidhu and her boyfriend Jarron Bray, his six (6) month old baby boy and their baby sitter, Linnet Uma. They were all getting ready to go to a dinner at Lamana Motel. The deceased and her sister were inside the bedroom doing their makeup when this accused went into the room and went to the dresser and pull out a gun (pistol) from the drawer and pushed the magazine into the butt of the pistol handle and all of a sudden the pistol went off (fired) and that very moment she deceased was standing at the side of the bed, the baby was sleeping on the bed. Samantha was sitting on the floor and Jarron was standing at the doorway into the room when the gun hit the deceased on her mouth and she fell down and could not move.

The accused was shocked and put the pistol on the dresser and did not say anything. Samantha and Jarron then checked on the deceased and found out she was losing a lot of blood so they demanded for a car key to take the deceased to the hospital. The accused assisted and both him and Jarron carried the deceased to the vehicle where this accused and his relatives then took the deceased to the 2K Medical Centre at Boroko but she was already dead so the accused then took her to Erima Funeral Home and left her there. This accused later reported the matter to the Hohola Police Station and registered his complaint that he accidently shot his wife (deceased). CID Homicide and Forensic members later attended to the scene, took photos and also confiscated the pistol from the accused. The matter was fully investigated and this accused was then called into the office where he was questioned in relation to this incident and he admitted so he was later arrested, charged, cautioned, was informed of his Constitutional Rights under Section 42(2) of the Constitution and was placed in the cells for one count of Manslaughter.

12. From these above facts I extract the following pertinent facts;
    
    1. At about 8:00pm the applicant, his wife Regina Morove, his wife’s cousin sister Samantha Genia Sidhu, Jarron Bray, Linnet Uma and a 6 months old baby were in the house at Garden Hills. 5 adults were in the house with a baby. Altogether 6 people in the house.
       
    2. Regina and Samantha were in the bedroom, I presume the bedroom of the applicant and Regina.
       
    3. Regina and Samantha were grooming themselves adding on make ups in the bedroom.
       
    4. The applicant then went into the bedroom where his wife Regina and Samantha were doing make ups.
       
    5. The applicant went into the bedroom where the ladies were doing their make ups and went to the dresser and pulled out a pistol from the drawer.
       
    6. Regina was standing at the side of the bed. Samantha was sitting on the floor, the baby was sleeping on the bed. Jarron was standing on the doorway into the room. I consider this to be strange because Jarron appeared to be allowed to see into the bedroom of the applicant and Regina – where Regina and Samantha are still grooming themselves.
       
    7. The applicant pushed the magazine into the butt of the pistol handle and the pistol suddenly went off or fired.
       
    8. The bullet hits Regina and she falls to the floor.
       
13. There is nothing in the summary of facts of events before 8:00pm. What happened prior to 8:00pm on 14^th May 2016
    
14. There is nothing in the summary of facts what time the gun went off, what time Regina was taken to the 2K Medical Centre at Boroko, what time Regina’s body was taken to the Funeral Home in Erima and what time the applicant reported the matter to Hohola Police Station.
    
15. While the summary of facts say the matter was fully investigated, I do not know what exactly that means. Did the police take statements from Samantha, Jarron and Linnet Uma. If so those statements are not before this court.
    
16. Some aspects of the actions of the applicant requires a closer scrutiny. They are – 2 women were in the bedroom with the baby. I assume the door to the bedroom was closed or was it closed?
    
17. Why go into the bedroom while the 2 women were still in there dressing up. It is even more strange – why take your pistol out when 2 women and a child are in the room. What do you need the gun for? What was the threat? It is even more strange to start loading the pistol in the presence of the women and while the women are still in the room at a very close proximity. Was the applicant showing off with his weapon or what was it that prompted him to load the pistol in the presence of the 2 women in the room. I consider this to be a negligent act at a highest degree.
    
18. Section 288 of CCA says it is unlawful to kill a person unless the killing is authorised or justified or excused by law. In this case there is no suggestion that the killing was authorised or justified. The applicant on paragraph 7 of his affidavit says that;

“the charge stem from an incident at my family home at Garden Hills which resulted in my licensed firearm being accidentally discharged and hitting my wife which then resulted in her death.”

19. The applicant pleads accident presumably under s.24 (1) (6) of the Criminal Code. This provision however has no relevance when criminal negligence is involved. I have alluded to some aspects of the summary of facts that made me to ask questions as to why get your gun and load it in a room where there are 4 or 5 people present. The summary of facts suggests to me that criminal negligence may be involved. S.287 of the Criminal Code comes into play here. Case authorities say that s.24 of the Criminal Code has no relevance to a case where the offence charged rests upon the omission of a duty of care or that reasonable precautions are required by s.287 of Criminal Code Act. Liability is determined without resort to s.24 of Criminal Code Act. (Evgeniou v R (964) PNGLR 277 at 289). The conduct of the applicant as described in the summary of facts is indicative of negligence, carelessness or recklessness. In R v Aivei Iemeam Momu Mori (1973) PNGLR 1. Pretence J (as he then was) expressed an opinion that the defence of accident under s.24 of the Criminal Code was not available where criminal negligence had been proved.
    
20. This is an application for bail. I have had regard to matters disposed in paragraphs 9 and 11 of the applicant affidavit. I am indeed mindful of those factors.
    
21. I have also considered the factors under s.9 of the Bail Act. The only relevant considerations are s.9 (1) (c) (i) and (ii).
    
22. The law is that even when any considerations under s.9 of the Bail Act are established the Court still has discretion to grant bail.
    
23. Section 42 (6) of the Constitution directs that a person charged with offences other than treason and wilful murder are entitled to bail at all times unless the interest of justice otherwise require. I have discussed s.24 and s.287 of the Criminal Code.
    
24. In paragraph 9 of his affidavit the applicant says he needs to be out on bail to pay the salaries of his employees and that his employees will be greatly prejudiced and inconvenience. This unfortunately is not an uncommon occurrence when someone is in custody or imprisoned. What follows from detention and charging is a natural consequence. There are many examples but only two were mentioned in by Counsel. The case of The State v Theo Yasause and The State v Justin Parker. Justin Parker is a businessman and is charged for wilful murder. He advanced the argument that he needed to be out on bail to continue with the operation of his business. The Court paid no attention to that ground. He also raised health issues which were also denied by the Court.
    
25. The Yasause case was also the same. The applicant’s predicament is self inflicted. His employees and children will no doubt be affected. They had nothing to do with this matter, yet no doubt they will suffer. I will render consistency by also rejecting the grounds mentioned in paragraph 9 of his affidavit, for reasons that the facts indicate negligence, carelessness and a reckless disregard for human lives. In the interest of justice, I will refuse to grant bail.
    
    26. I would think that his children will be taken care of by his relatives. The applicant can still sign cheques from where he is.
        
27. Having discussed s.24 and s.287 of the Criminal Code and considering the “interest of justice otherwise require” of s.42 (6) of the Constitution requirement, I am now mindful to refuse bail.
    
    28. Bail is refused.
        

_____________________________________________
Nidue Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State