Kulang v Police [2017] PGNC 247; N6931 (9 October 2017)

N6931

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 764 OF 2017

IN THE MATTER OF AN APPLICATION FOR BAIL PURSUANT TO SECTION 42 (6) CONSTITUTION AND SECTIONS 6 & 4 OF THE BAIL ACT CHAPTER NO: 340

BETWEEN
TOBIAS KULANG
Applicant

AND
POLICE

Respondent

Kundiawa: Liosi AJ

2017: 06^th & 09^th October

PRACTICE AND PROCEDURE – Application for bail – Bail Act, s.9(1)(c) – wilful murder – Arson – Breaching existing bail conditions – charges of – serious assault – violence used – offensive weapon used – loss of lives – several people injured – substantial damage and destruction to properties – constitutional right to bail – presumption of innocence in favour of bail – right to bail not automatic and readily available to persons arrested or detained on allegation of wilful murder or treason – grounds for bail – dialogue, peace and reconciliation between the parties in the conflict – overall justice warrant granting of bail – bail granted with conditions.

Case Cited:
Bernard Juale v. The State (1999) N1887
Re Fred Keating [1983] PNGLR 133
Re Herman Kagl Diawo [1990] PNGLR 148

Counsel:

M Yawip, for the Accused/ Applicant
J Kesan, for the State/Respondent

RULING

09^th October, 2017
1. LIOSI AJ, This is an application by the applicant Tobias Kulang to be admitted to bail pursuant to an application filed on 4^th October 2017. The application is supported by the affidavits of the applicant himself filed on even date and three (3) guarantors namely Johanes Kola, Mary Banda and Wesley Bigi.

2. The applicant invokes S.4&6 of the Bail Act.

3. The State has opposed bail but submits in the event bail is granted previous bail conditions relating to taking reasonable, proactive and constructive steps as a leader to facilitate dialogue, peace and reconciliation reasonably promptly between the parties involved in the conflict should be ordered to continue.

4. The applicant is currently on bail after been charged with two (2) initial Counts of Wilful Murder and taking part in a riot. He was granted bail on 9^th August 2017 by Goroka National Court and released on 11^th August 2017 with bail conditions. One of the conditions related to taking reasonable, proactive and constructive steps as a leader to facilitate dialogue, peace and reconciliation reasonably promptly between the conflicting parties. After been released the applicant travelled home on 12^th August 2017. It is alleged that upon seeing him his clansman got angered, got rowdy and burnt down several houses belonging to other candidate’s supporters. Some of those houses were 200 meters away and were burnt in the presence of the applicant. The State alleges he did nothing to stop them. Consequently further 14 Counts of Arson were slapped upon him. The State says the offences were committed whilst he was on bail.

Brief Facts

5. It is alleged the offences took place in Kundiawa Simbu Province on Sunday, 30 July 2017. The charges arose from a riot and physical confrontation between various groups supporting rival candidates contesting the Kundiawa/Gembogl Open Electorate in the Simbu Province during the recent 2017 National General Elections.

6. The applicant’s reason for seeking further bail are set out in paragraph 38 of his affidavit. Although not specifically stated I note they relate specifically to leadership responsibilities and restoration of peace and reconciliation amongst the conflicting parties.

7. Under section 42(6) of the Constitution, a person arrested or detained for an offence is entitled to bail at all times. However, this is not the case where a person is arrested or detained on allegation of wilful murder or treason. It is therefore a constitutional right of every person arrested, charged or detained in relation to an offence under the law to be granted bail unless the justice of the case require otherwise. Section 46(2) states:

“(6) A person arrested or detained for an offence (other than treason or wilful murder as defined in an Act of Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interest of justice otherwise requires.”

8. In an application for bail, there is always a strong presumption in favour of an applicant. In Re Herman Kagl Diawo [1980] PNGLR 148, Kapi J (as he then was) said:

“The right to bail is a constitutional right s.42(6) and must be given readily unless the interest of justice require otherwise. The Constitution puts the onus on those who oppose bail to show why bail should not be granted. Section 9(1) (of the bail Act) Sets out the considerations upon which the Court may refuse bail.”

9. However, the presumption does not favour a person who has been arrested or detained in connection with the offence of wilful murder or treason. The right to bail is not automatic or readily available to persons arrested or detained on allegations of wilful murder or treason. Bernard Juale v. The State (1999) N1887.

10. A bail authority must consider s.9(1) of Bail Act where one or more considerations under s.9(1) is present. Court may refuse bail. Ultimately the power to grant bail is discretionary.

11. I note from earlier bail that one of the conditions was to take reasonable proactive and constructive steps as a leader to facilitate, dialogue, peace and reconciliation reasonably, promptly between the parties involved in the conflict. The State has objected to bail on the grounds that the applicant was already on bail when he allegedly committed some more serious offences namely, 1 count of wilful murder of Michael Dimiyagl, breaching of terms 3 of the previous bail conditions and 14 Counts of Arson.

12. Whilst noting that I also note the applicant’s response to the charges as set out in his affidavit in support. He says at paragraph 10 that whilst he was approaching his village, he noticed 3 homes were being burnt at Govenigle bridge junction. At paragraph 11 he says when he proceeded to his village, his tribes had already gathered to make contribution towards compensation and peace ceremony that was to take place for the late Michael Dimiyagl who was one of the casualties of the Kundiawa fight. Late Dimiyagl is from the neighbouring Kulkane Tribe. At paragraph 13 he says people from the Kulkane and Inagugl Tribes were also there to contribute to the peace and reconciliation ceremony.

13. At paragraph 14 he deposes that after addressing and thanking the people for taking the initiative to foster peace and reconciliation he invited the leaders into the meeting to discuss and plan how to progress further. After coming out of the meeting, he found out about 40 other houses being burnt. He immediately addressed the people that all outstanding issues must be dealt with through court of disputed returns.

14. As to whether he is guilty or not of the current charge for which he now makes this bail application is a matter for trial for the appropriate court. For purposes of the bail application, I note from the applicant’s affidavit that he indeed has taken proactive steps to bring normalcy and peace to the conflicting communities.

15. Notwithstanding the fact that the allegations are serious where there is presence of consideration in S.9(1) of the bail Act the court ultimately can still exercise its discretion to grant bail. The onus lies with the party opposing bail in all cases except wilful murder and treason cases Herman Kagl Diawo [1980] PNGLR 148. This is based on the constitutional right and presumption of innocence. In wilful murder and treason cases however the onus lies on the applicant and where considerations under s.9(1) are present the applicant must show exceptional circumstances.

16. I have perused the affidavit material relied upon by the applicant. I note the violence that ensured is election related and I also note that lives have been lost and properties destroyed. I further note the applicant is yet to be committed to stand trial on the charges. The allegations are serious and I note the State has also opposed bail. I further note that the alledged offences for which the accused has been further charged are offences arising out of the same set of facts and circumstances for which he was initially charged and was granted bail of K3, 000.00. The applicant appears to be a well-known person been a former Minister in the National Government. In the circumstances I am satisfied that there are sufficient reasons given for me to grant bail using my discretion. I therefore grant bail on the following conditions.

1. Bail is granted in the amount of K5, 000.00.
2. The Court approves Mary Banda, Johannes Kola and Wesley Bigi who are appointed as guarantors.
3. Each guarantors shall pay cash surety of K600.00 each before the

applicant is released.

4. He shall reside at his residence at Section 388 Allotment 8 Boroko
   NCD.
5. Whilst in Simbu, the applicant shall reside at Kegla Lodge in Kundiawa Gembogl Distirct.
6. He shall attend all hearings of the Committal Court in Kundiawa as

scheduled whilst his charges are pending in the said Committal Court.

7. The applicant shall report to the Clerk of Court at Waigani Committal

Court every first Monday of each month whilst his case is pending before the Committal Court in Goroka and Kundiawa.

8. He shall not interfere with any state witnesses.
9. He shall not commit any other offence whilst on bail.
10. Applicant shall not leave the country without leave of the National
    Court.
    

Ordered accordingly.
_______________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State