Ngotngot v State [2016] PGNC 187; N6377 (9 August 2016)

N6377
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR (AP) NOs.273, 274, 275 & 276 OF2016

BETWEEN

JOE NGOTNGOT, JOHN ERIC, JACK BEMAU & DAVID HARO

Applicants

AND

THE STATE

Respondent

Kokopo: Higgins, J
2016: 5^th & 9^th August

BAIL APPLICATION – prior refusal – need to show a change in circumstances favouring bail – subsequent presentation of police brief followed by committal for trial – shows less strength in State case – accused police officers – capacity to protect accused in custody – further information on that topic – bail granted.

CASES CITED:
Re Thomas Markus [1999] PGNC 82; N1931
Ngotngot v State [2016] PGNC 138; N6264

COUNSEL:
Mr. P. Kaluwin, for the Applicants
Mr. L. Rangan, for the Respondent

DECISION

9^th August 2016

1. HIGGINS, J: This is an application for bail by 4 accused, namely, Senior Constable Joe Ngotngot, Constables John Eric and Jack Bemau and First Constable David Haro.
   
2. They stand charged with wilful murder. They have been committed to stand trial on that charge.
   
3. Bail may be granted only by the National Court on such a charge. Each of the accused made application for bail before Anis AJ before committal. Bail was refused.
   
4. It follows that, whilst it is open to the accused to make a further application, it is accepted that they must demonstrate a change in circumstances favouring bail (Re Thomas Markus [1999] PGNC 82; N1931).
   
5. Since that decision (Ngotngot v State [2016] PGNC 138; N6264), the matter has been heard at the District Court to determine if the matter should proceed to trial.
   
6. At that point, the accused had been informed of the case against them only via a police Summary of Facts. It appears from that Statement (Annexure A), that the 4 officers accused were part of a police team, partly uniformed and partly in civilian clothes “with wool hats over their heads and faces”. They were searching for a marijuana plantation. The deceased was severely assaulted apparently to persuade him to reveal its location. It is also alleged that the accused officers ignored at first the serious distress the deceased was suffering as a result of the assaults.
   
7. Nevertheless, it is then alleged that the accused officers “... realising that the deceased was bleeding profusely and by then was having difficulty in breathing (sic – breathing), they rushed him to Warangoi Health Center (sic – Centre)”.
   
8. It was, however, too late as, despite treatment, the deceased passed away.
   
9. These facts raise issues to be explored a trial, both as to identification and as to intent to kill as opposed to unintentional homicide.
   
10. The reasons delivered by Anis AJ in denying bail, have been produced. It was submitted to him that detaining the accused officers had already resulted in threats and abuse being directed toward them in Kerevat. It was also in evidence that reasonable sureties were made available. It was not suggested that the accused represented a flight risk or any risk to the public including potential witnesses. Nevertheless, his Honour was satisfied that the accused could be held in protective custody and that the serious nature of the case against them warranted a denial of bail. It is undeniable that the case against the accused involves serious assault upon the deceased. It was not contended by the State that the accused were at risk in the community.
    
11. Mr. Kaluwin, for the accused, submits that there are changed circumstances in that the accused have been committed for trial and the police brief disclosed. Of itself, the fact of committal for trial for wilful murder would favour refusal of bail. However, Mr. Kaluwin submits that the statements of the witnesses confirm the weakness in the State case.
    
12. The father of the deceased, Joe Nolu, attested that he was awakened by police on 11 July 2015. He recognized the accused John Eric as a relative of his wife. He asserted that he could recognize Joe Ngotngot if he saw him again. There was a civilian present. A policeman addressed as ‘Elijah’ tied the deceased’s hands. None of the accused is named ‘Elijah’. There was a marijuana plantation discovered nearby to his residence but the deceased denied having anything to do with it. Mr. Nolu attested to the accused, John Eric assaulting the deceased and other police joining in. They had their faces covered. He himself was assaulted by the accused, Joe Ngotngot. He saw a police officer he identified as Jack Bemau. That officer arrested another son of his (Nigel). The accused Joe Ngotngot, he stated, struck the deceased with his gun butt so the deceased fell into floodwaters, though he was dragged out of those waters to safety by his cousin.
    
13. Ms. Maria Nolu recognized the accused David Haro, who, she said, punched her. Joseph Nigel, a cousin of the deceased, recognized one officer who had assaulted him, as Jack Bemau. However, he does not link him to the assault on the deceased.
    
14. Another cousin, Eddie Keteng, identifies the accused John Eric, as one of those police who assaulted the deceased.
    
15. The medical report indicated that the deceased died as a result of a ruptured spleen and consequential bleeding.
    
16. There is a strong State case to support the contention that the deceased was seriously assaulted by police and that the two of those who assaulted him were John Ngotngot and John Eric.
    
17. The relevant changes in circumstances are the strength of the State case against the accused and the capacity of the Correctional Service to protect the accused in Kerevat.
    
18. Those circumstances do address two of the grounds for refusal of bail which his Honour articulated.
    
19. It is trite law, as Injia J (as he then was) noted in Re Markus (supra) that even those charged as co-offenders may have a different case for refusal or grant of bail than another co-offender.
    
20. There is no evidence of accused Jack Bemau or David Haro assaulting the deceased. To that extent, that portion of Mr. Kaluwin’s submission is supported by the committal statements. However, accused Joe Ngotngot and John Eric are implicated as assaulting the deceased. Those are serious assaults whether or not they caused the fatality.
    
21. I accept that the information given to Anis AJ as to the prospects for protective custody was presented differently than it was before me. Indeed, that latter information is consistent with my own knowledge of the Kerevat Correctional facility.
    
22. The evidence does not disclose the identity of the officer/person who struck the deceased with a cocoa stump, arguably an assault that could have caused the splenetic rupture.
    
23. In those circumstances, I find that the police brief has revealed further information that significantly reduces the strength of the State’s case as I have indicated above. In combination, those matters persuade me that the accused have made out a case that there are matters now revealed in evidence favouring the grant of bail.
    
24. I will however, hear counsel on the conditions to be imposed.
    

______________________________________________________________
Public Solicitor’s Office : Lawyers for the Applicants
Public Prosecutor’s Office: Lawyers for the Respondent