Umar v State [2016] PGNC 176; N6366 (13 July 2016)

N6366

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 141 OF 2016

PETER UMAR

V

THE STATE

Kundiawa: Liosi, AJ
2016: 13^th July

CRIMINAL LAW – Bail – Applicant charged with wilful murder – Offence consists of serious assault and violence to another person – means test of guarantors not complied with – effect of – Section 19 Bail Act – Whether exceptional circumstances shown.
Prosecution to establish considerations under Section 9 Bail Act

Cases cited:
Fred Keating v The State (1988) PNGLR 133
R v. Slough Justices; Ex Parte Duncan and Another [1982] 75 Cr. App. 384
Vela Vari Vele v. The State (2004) N 2701

Counsel:
Mr. J. Biki, for the Applicant
Mr. K. Umpake, for the Respondent

Ruling on Bail Application

13^th July, 2016

1. LIOSI, AJ: This is an application for bail by the applicant pursuant to section 42(6) of the Constitution and section 4 and 6 of the Bail Act.

2. The Applicant is charged with 1 count of murder of one Gagme David at Lasdombil village Kerowagi on 21^st September 2012 contravening section 300 (1) (a) of Criminal Code.

3. The brief allegations of fact are that on Friday 21^st September 2012 between 12 midnight and 1:30 am, the accused was at Lasdombil village, Kup at Kerowagi District in Simbu. The accused mobilised his boys from the village and ordered them to hit anyone there. In the process of doing that he approached the deceased who was an old man. He hit the deceased with the barrel of the gun very hard on his left side of the ribs two times. The accused is young and strong compared to the deceased. The blow felled the deceased. He was unwell for one week and could not eat. He was consequently brought to the Kundiawa hospital but died. The accused was not arrested until 24^th January 2015 at Kerowaghi Township and charged.

4. In support of the application the applicant has filed an affidavit sworn 31^st of March 2016 and filed on 13^th April 2016. He says he is from Lasdombil village, Kerowaghi District. He is a former councillor of Kup Local Level Government, 45 years old married with two wives, 14 children and grandchildren. From perusal of the affidavit the applicant has not stated any grounds of his application for bail. The applicant only tries to explain the commotion of that night. I can only conclude from the contents of his affidavit that he denies the offence.

5. The applicant says that he has paid compensation of K1, 900. 00 and seven pigs all valued at K1, 000. 00 each to the deceased family. Again the payment of compensation in my view only becomes significant if the accused is found guilty of the offence. The payment of compensation then becomes a mitigating factor in sentencing.

6. The applicant has proposed two guarantors in support of his application. They are Wamil Christopher and Elly Paul. Wamil Christopher is 46 years old and married with 6 children. He is a Pastor with Assemblies of God church and says he knows the applicant very well. He is prepared to undertake to ensure that all bail conditions are observed. He has undertaken to pay K300. 00 as guarantors fee.

7. Elly Paul says she is 45 years old and married with 3 children. She is a community leader at Bari/Kup Local Level Government, Kerowaghi District. She witnessed and was part of the mediation team when the applicant paid compensation to the deceased relatives. She undertakes to pay K300. 00 as surety if the applicant fails to comply with bail conditions.

8. The state has objected to bail pursuant to section 9 (1) (a). There is an affidavit relied upon by a Detective Senior Constable Julie Gale of Criminal Investigation Division Kerowaghi Police Station. The affidavit was not filed but was admitted after counsel relied on section 9 (2) of the Bail Act, that technical rules of evidence should not be applied by the court in considering a matter under this section. The officer in charge says that it almost took two years to arrest the accused. The offence was committed on the 21^st September 2012 and the arrest occurred on Thursday 24^th January 2015. Secondly if the accused is released there is likely to be more trouble with the immediate family members of the deceased. Thirdly if released on bail he might go into hiding again.

9. From the evidence the considerations under section 9 (1) are present. That is that the assault leading to the death involved a serious assault, a threat of violence to another person using an offensive weapon namely a gun.

10. The Issue then is has the applicant shown any exceptional circumstances for him to be granted bail.

11. As alluded to earlier on, the applicant’s affidavit does not specifically set out any grounds for bail. However I only draw conclusion from the general reading of the affidavit that the applicant has denied the offence. The courts have time and again held that denial of the offence or pleading innocence is an irrelevant consideration in a bail application. That is a matter for substantive hearing.

12. In relation to the existence of considerations under section 9 (1) (c) of the Bail Act, the State has not shown any material evidence that the matters are present. I am not satisfied that the State has established the considerations against the applicant under section 9 (1) (c) of the Bail Act.

13. In any bail application it is vital for the State to establish that one or more matters under section 9 is present. In this case whilst there is an affidavit of senior constable Julie Gale deposing that it took more than two years to arrest the accused, she does not say why.

14. The State must establish the existence of substantial grounds for the bail that one or more of the matters under section 9 are present. This was highlighted in the case of Fred Keating v. The State (1988) PNGLR 133 where Andrew J said;

“before the discretion to refuse bail arises, the court has to be satisfied that there are substantial grounds for believing that one or more of the matter described in section 9 (1) (a) to (g) are present. It is the existence of substantial grounds for the belief, not the belief itself, which is the crucial factor: see R v. Slough Justices; Ex Parte Duncan and Another [1982] 75 Cr. App. 384”

15. In Vela Vari Vele v. The State (2004) N 2701 Mogish J said “It is not enough for the state to state it’s belief, it is obliged to call or rely on credible evidence to substantiate its reason.”

16. Having said that I exercise my discretion to grant bail to the applicant. Whilst I will exercise that discretion to grant bail. I am very mindful of the fact that the accused has been charged with a very serious offence, whatever bail conditions I will impose must reflect the seriousness of the offence so that the public should know, appreciate and understand the significance of where when, and why bail should be granted.

17. The applicant must realise, know and appreciate that he has been charged with a very serious offence. The offence involves a life being taken away forever. People must be made to realise that you just can’t apply for bail and get it easily when you are charged with a very serious offence.

18. On the same token the guarantors must fully understand and realise the consequences of being a guarantor. Section 19 of the Bail Act clearly states that a guarantor must state his financial means. That information in my view must be stated in the affidavit of the guarantor. If this is not done the court can refuse a guarantor which ultimately can lead to refusal of bail. It also means that the court can impose an amount which the guarantor will not be able to meet.

Having made those comments, I grant bail on the following conditions

1. Bail is granted in the amount of K5, 000.00.
2. The guarantors are to each pay upfront the amount of K600.00 cash before the applicant is released.
3. The applicant shall reside at Lasdombil village.
4. He shall not interfere with any state witnesses.
5. He shall report to Kundiawa National Court every Friday between the hours of 9 am and 3:30 pm until hearing of his case.
6. He shall attend at every Criminal Call Over until his case is heard.
7. He shall keep the peace and be of Good Behaviour.
8. He shall not leave Simbu without leave of the court until his case is heard.

Orders Accordingly,

_____________________________________________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Applicant