Ewam v State [2017] PGNC 264; N6935 (6 October 2017)

N6935

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 690 & 689 OF 2017

LONCIA EWAM & STEPHANIE KAUKEN
Applicant

V

THE STATE
Respondent

Kimbe : Miviri AJ
2017 : 5^th & 6^th October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail Act - Bail Application S13 –Change in circumstances ––new reputable guarantors–no objection—bail allowed.

Cases:

Idon v The State [2001] SC669
Re Thomas Markus [1999] N1931

Counsel:

A. Bray, for the State
D Kari, for the Defendant

RULING ON BAIL APPLICATION

6^th October, 2017

1. MIVIRI AJ: This is the ruling of the court in an application for bail made by the applicants pursuant to section 6 of the Bail Act and section 42 (6) of the Constitution. Both applicants are in custody on remand since being charged on the 22^nd February 2017 with wilful murder committed allegedly at the Kimbe Market on the 3^rd January 2017 where they purportedly identified the deceased to one Ben who they stabbed on his back with a scissors and he died from blood loss at the Kimbe General Hospital.
   
2. Both applicants made this application before this court on the 24^thApril 2017 in Loncia Ewam & Stephanie Kauken v The State (2017) N6728 and bail was refused there because they did not have guarantors of standing to oversee them whilst they were on bail.
   
3. Both are now making that same application invoking change in circumstances in that they both now have two guarantors of standing which is a change in circumstances from that initial circumstances and application then. The authority is by section 6 and 7 of the Bail Act for the application to be made as they are now doing: Re Thomas Markus [1999] N1931.
   
4. Both these guarantors have filed affidavits, firstly one Edwin Batari dated the 19^th August 2017 who swears that he is of the Kimbe Diocese, is a Catechist of the Kimbe Diocese Church. He knows the applicants since childhood and that they are of good character in the community. And that the applicant is charged with wilful murder. He is willing to be their guarantor and knows the responsibilities of being a guarantor. He pledges the sum of K500 as surety as guarantor of the applicants. He says that the applicant Stephanie Kauken will reside with her parents at Section 2 Bush Camp, Kimbe, West New Britain. And the applicant Loncia Ewam will reside at Section 4, Sarakolok, Mosa LLG, Kimbe with her parents.
   
5. The second proposed guarantor who has filed an affidavit dated 17^th August 2017 is Samson Ipiu of the village court Kimbe Urban LLG. He deposes that he is a village court magistrate of the Kimbe Urban. He knows the applicants since their childhood and that both have no criminal record or of wrong doing in the community. He pledges the sum of K500 as surety for their bail and appreciates the responsibilities of being a guarantor and will ensure both applicants adhere. He says that the applicant Stephanie Kauken will be resident at section 21 Bush Camp with her family. And that the applicant Loncia Ewam will reside at section 4 Sarakolok, Mosa LLG, Kimbe with her parents.
   
6. I have viewed the affidavits of both guarantors proposed and adjudge that there has been a change in the circumstance from the initial application made. And this I do so based upon the decision of this court in Loncia Ewam & Stephanie Kauken v The State (2017) N6728 with particular reference to the proposed guarantors there and now. That the sworn and filed affidavits of the proposed guarantors now Edwin Batari, Catechist of the Kimbe Diocese and Samson Ipiu of the village Court Kimbe Urban LLG show change in circumstances in that both persons are of standing and repute in the community and will ensure by that fact to ensure applicants are observant of their obligations of bail if granted.
   
7. The State has not objected to the application in view of the court’s decision on bail last and also does not object to the proposed guarantors now.
   
8. I am satisfied that the change in circumstance has been shown with the insertion of the proposed new guarantors which will ensure the observance of bail conditions that the court imposes upon the applicants.
   
9. I am satisfied that the requirements of section 9 of the Bail Act have been satisfied with the proposed guarantors. And I approve the proposed guarantors Edwin Batari, Catechist of the Kimbe Diocese Church and Samson Ipiu of the Village Court, Kimbe Urban LLG as guarantors pledging the sum of K600 each for the bail of the applicants Loncia Ewam and Stephanie Kauken.
   
10. Consequently I grant the application made for bail and order as follows :-
    
    • (i) Both applicants Loncia Ewam and Stephanie Kauken are granted bail on the following conditions that each applicant shall pay the cash sum of K1000 each a total of K2000 forthwith and upon production of receipt individually to be released from custody.
      
    • (ii) Both Edwin Batari Catechist of the Kimbe Diocese and Samson Ipiu are approved as guarantors for both applicants with individual pledges of K600 to be paid should the applicants breach the bail conditions.
      
    • (iii) Both applicants shall report to the Kimbe National Court registry every government payday Friday between the hours of 8.00am and 4.00pm.
      
    • (iv) Both applicants shall reside at the following locations: Loncia Ewam at section 4 Sarakolok, Mosa LLG, Kimbe with her parents; and Stephanie Kauken at section 21 Bush Camp with her family at all times during the course of bail.
      
    • (v) Both applicants shall not leave Kimbe or their residences - Loncia Ewam at section 4 Sarakolok Mosa LLG Kimbe with her parents; and Stephanie Kauken at section 21 Bush Camp with her family without the leave of the Kimbe National court.
      
    • (vi) Both applicants shall attend every call over of the Kimbe National court call over every first Monday of every month during the course of their bail.
      
    • (vii) Both applicants shall be of Good behaviour at all times during the course of their bail.
      
    • (viii) Both applicants shall not interfere with any state witnesses in the matter.
      

Orders Accordingly,
__________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Defendant