Pipilak v State [2017] PGNC 133; N6771 (26 May 2017)

N6771

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 153 OF 2017

JACK PIPILAK
Applicant

V

THE STATE
Respondent

Kimbe: Miviri AJ
2017: 23^rd & 26^th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail Act - Bail application –Whether in interest of justice to refuse bail –-substantial grounds meaning of - satisfaction on reasonable grounds meaning in law not contrary S9 –manslaughter.

Cases:

Re-Fred Keating [1988] PNGLR 133,
Warun, The State v [1988-89] PNGLR 327
Kasi v The State [1999] PNGLR 566

Counsel:

R. Luman, for the State
B Popeu, for the Defendant

RULING ON BAIL APPLICATION

26^th May, 2017

1. MIVIRI AJ: Jack Pipilak of Tinganagalip, Gazelle Peninsula East New Britain Province you are applying for bail pursuant to Section 42 (6) of the Constitution and invoking Section 4 and 6 of the Bail Act Act from custody after being charged with Unlawful killing in that you on the 5^th day of May 2017 at Sarakolock in Papua New Guinea unlawfully killed one Clive Nick Sitban contrary to Section 302 of the Criminal Code Act.
   
2. Your application is not opposed by the State who asks that strict conditions be imposed and that the guarantors pay up front rather than pledge.
   
3. Your affidavit dated 15^th May 2017 in support filed attaches as annexure “A” the information laid by Police informant Detective Chief Sergeant Oscar Tobing particulars of the charge I have set out above contrary to Section 302 of the Criminal Code Act.
   
4. At the back of the information your annexure “B” of your affidavit are facts to the charge that state that on the 5^th day of May 2017 between the hours of 9.30am and 10.00pm you were a policemen attached with the Task Force unit and on duty with other members of the unit. You were driving a Toyota Land Cruiser white registered number KAI 213. With you in the vehicle were a CIS officer, a civilian girl, and three other police officers. Who were all on duty searching for recent 16 prison escapees from Lakiemata Corrective Institution as well as normal patrol of town and nearby oil palm block areas. After having attended to a dart game at Lakiemata you were on your way to Saraklock Section 4 dropping off a sick Corrective Institution Officer. On your way to Section 4 at the junction, your vehicle was stoned. You stopped the vehicle, reverse back to where you were stoned, got off the driver’s side went to the front of the vehicle where the light was on and opened fire to where the deceased was running. It is alleged that both you and your off sider Hillary Simeri were both armed with guns shot and wounded the deceased Clive Nick Sitban. The bullet penetrated the left side of the deceased body and exited on the right side, just below the deceased right breast. After having wounded the deceased the police officer rushed him to Kimbe General Hospital where he died. You were told to report to the criminal investigation where you were charged.
   

Law

5. The combined effect of Section 42 (6) of the Constitution and Section 6 of the Bail Act are that you are entitled to bail at all times along the criminal justice process, “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”.
   
6. Where a person to whom Subsection (6) applies is refused bail –
   • (a) the court or person refusing bail shall, on request by the person concerned or his representative, state in writing the reason for the refusal; and
     
   • (b) the person or his representative may apply to the Supreme Court or the National Court in a summary manner for his release.
     
7. You are entitled to bail at all times by virtue of the sections 42 (2) of the Constitution and 6 of the Bail Act.
   
8. Section 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–

(d) a serious assault; or

(e) a threat of violence to another person; or

(f) having or possessing a firearm, imitation firearm, other offensive weapon or explosive;

(g) that the person is likely to commit an indictable offence if he is not in custody;

(h) it is necessary for the person’s own protection for him to be in custody;

(i) that the person is likely to interfere with witnesses or the person who instituted the proceedings;

(j) 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;

(k) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;

(l) 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;

(m) 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.

Unless the interest of Justice otherwise require you are entitled to bail at all times.

Re-Fred Keating [1988] PNGLR 133, states, “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 Rv. Slough Justices; Ex Parte Duncan and Another [1982] 75 Cr. App. R 384”

Issue

9. Am I as an authority on bail satisfied on reasonable grounds that one or more of the grounds under section 9 (1) has been made out for you to be refused bail?
   

Facts

10. You are charged with manslaughter where the maximum penalty is life years and a gun was used. You are a police constable attached with the Response unit here in Kimbe.
    
11. Medical affidavit by HEO Chris Vagelo, a Health Extension Officer at the Children’s outpatient Kimbe General Hospital has filed an affidavit for you that you are suffering from TB, wherein your test for TB was confirmed positive that you were to commence TB treatment and medications.
    
12. In that affidavit he has annexure “A” titled medical report of Jack Pipilak M/A wherein he states:
    

“you came presented on the 24^th April 2017 with history of blood stained Sputum. A chest x-ray V2232 was ordered and was suggestive of having pulmonary tuberculosis. Also with that his sputum specimen was positive of TB. With the results he was commenced on TB treatment on the 27^th April 2017 reg# 4857. With the results he is highly infected with TB and he can easily infect other who are close to him. He is required to review every month. For your information. Yours sincerely, HEO Chris Vagelo.”

13. This letter is dated the 15^th May 2017 referenced 11-4-2-41 from the adult outpatient Department of the West New Britain Provincial Health Authority.
    
14. There is very strong credible grounds upon which you should be out of bail from the jail. You will infect others that you are in the cell together with. TB is curable and you must be strictly set on your medications without failure therefore you must be near the hospital for review every month. It is not your own assertion but is independently confirmed by a medical officer a Health Extension officer of the West New Britain Provincial Health Authority. And is a very good basis to grant you bail. And as a bail authority I am satisfied and it is safe that there a good grounds made out here to grant you bail.
    
15. You personally swear that you are from Tinganagalip village, Gazelle District, East New Britain, you will reside at Section 15 single quarters Police Barracks in Kimbe, West New Britain. That your case is still in the investigation stage and that you appeared in the committal court on the 12^th May 2017 but no file was served on you.
    
16. In your duties as a policeman, you have served the community needs and have been involved in apprehending many hard core criminals and detainees who have been convicted and serving time in Lakiemata Corrective Institution. You are under constant threat and intimidation in prison. You pledge K1000 as cash bail should bail be granted.
    
17. In satisfaction of Section 9 (1) (a) you have filed an affidavit of one Andrew Arua Branch Manager Post PNG dated 15^th May 2017 filed 17^th May 2017 wherein he states that he resides at Section 21 Second Street, allotment 23 and is from Waima village, Central Province. He knows you as a Policeman with Kimbe Police Station Rapid Response Unit. He is willing to be your guarantor and pledges to ensure your appearance in court and not to interfere with witnesses and to be resident in Kimbe and to attend court and to be of good behaviour and to keep the peace and comply with all bail conditions that are imposed.
    
18. He swears that he can be reached on the phone number 72041100 or at the Kimbe Post Office Branch Office and also at his home address that he has given. He pledges the sum of K500 in cash as surety for the bail if granted.
    
19. He is a man of standing who can be located at a fixed location should there be need to ensure compliance with bail conditions. He is independent and therefore a good guarantor.
    
20. A further guarantor that you have nominated and who has filed an affidavit dated the 15^th May 2017 filed 17^th May 2017 is of Pastor Willie Peter of Capstone Ministries, P. O. Box 958, Kimbe, West New Britain resident of Kimbe Town for over 20 years at Ruango Customary Land Block originally from Nissan Island, Autonomous Region of Bougainville and Kokopo East New Britain Province.
    
21. He deposes that he operate and co-ordinate the Capstone Ministries here in Kimbe and is a Pastor of the United Church here in Kimbe, West New Britain. He knows the applicant as he used to be his Sunday School Teacher and he is a member of the church congregation here in Kimbe. He is willing to be his guarantor should bail be granted and to ensure that applicant does not interfere with witnesses and resides here in Kimbe and attends court and keeps peace and be of good behaviour. And that he complies with his bail conditions. He can be reached on mobile phone [phone] and pledges K500 as surety for bail if granted.
    
22. He is a credible guarantor of standing in the community and has influence necessary to ensure your compliance and observance of your bail conditions whilst on bail. He has a fixed place of abode where he can be located and has the contact where he can be easily reached should there be urgent need to ensure bail compliance.
    
23. Both guarantors are respected persons of influence and standing and can ensure your appearance and adherence to the conditions of bail if granted and imposed. Both are also independent persons. The court will endorse the nomination that you have made of Andrew Arua, Branch Manager, Post PNG and Pastor Willie Peter of Capstone Ministries, P. O. Box 958, Kimbe, West New Britain as your guarantors in your application.
    
24. The court is satisfied that Section 9 (1) (c ) can be safe and satisfactorily administered by the guarantors that you have nominated of Andrew Arua Branch Manager, Post PNG and Pastor Willie Peter of Capstone Ministries P. O. Box 958 Kimbe West New Britain.
    
25. There is no reason to keep you in custody, it is safe and satisfactory that all grounds under Section 9 (1) on bail has not being made out to refuse your bail. I am satisfied sitting as a bail authority that your application should be granted based on all the material that you have put before me. In the exercise of my discretion, I grant your application for bail and make the following orders as conditions of your bail:
    
    1. You shall pay cash surety of K1000.
       
    2. Andrew Arua Branch Manager Post PNG and Pastor Willie Peter of Capstone Ministries shall be appointed Guarantors for the Applicant.
       
    3. Andrew Arua Branch Manager Post PNG and Pastor Willie Peter of Capstone Ministries shall each individually pledge the sum of K500.00 each which shall be payable to the State if the applicant absconds bail or breaches any of the conditions set out in the Bail Certificate.
       
    4. The applicant shall obey, comply and abide by the commands of the Guarantors at all times whilst on bail.
       
    5. The applicant shall report to the National Court Registry every government fortnight Wednesday between the hours of 9.30 am and 3.30 pm.
       
    6. The applicant or his associates shall not interfere with any State witnesses.
       
    7. The applicant shall reside at section 15 single quarters Police Barracks whilst on bail and shall not change his address without leave of the court.
       
    8. The applicant shall attend his committal in the Kimbe District Court until the matter is dealt with according to law.
       
    9. The applicant shall not leave Kimbe at any time without the leave of court at any time until his case is dealt with according to law.
       
    10. The applicant shall not consume any form of alcohol or beverages or other illegal drugs whilst on bail.
        
    11. The applicant shall be of good behaviour at all times until disposal of his matter according to law.
        
        • (a) Bail granted
          
        • (b) Defendant to be released upon production of receipt of K1000 cash payment.
          

Orders Accordingly.

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant