Thomas v State [2018] PGNC 111; N7184 (9 March 2018)

N7184

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 878 of 2017
&
CR 879 (AP) of 2017

JUNIOR PETER THOMAS & BARA PETER
Applicants

V

THE STATE
Respondent

Lae: Kaumi AJ

2018: 16, 21, 27 February & 1, 9 March

CRIMINAL LAW – Bail Application-Wilful Murder-Prolonged Detention-Considerations under section 9 (1) present-Onus shifts to Applicants to show sufficient cause why continued detention not justified- Insufficiency of evidence of adverse effect caused by prolonged detention prejudicing their defence or denying him the opportunity to adequately prepare his defence.– Onus on applicants not discharged–No exceptional circumstances shown-Bail refused-Constitution-section 42 (6)-Bail Act-sections 4,6 and 9-Criminal Code-section 299.

Facts

Remanded men charged with wilful murder applied for bail. Applicants failed to show sufficient cause why their continued detention not justified.

Held:

[1] Prolonged detention alone is not sole determinative factor.

[2] Applicants must show sufficient cause why continued detention not justified.

[3] Applicants must show by way of appropriate evidence adverse caused by prolonged detention prejudicing their defence or denying him the opportunity to adequately prepare his defence.

[4] Applicants’ affidavits very brief and did not depose to matters pertaining to exceptional circumstances.

[5] Applicants’ pre-trial custody of 2 years 5 months though lengthy did not amount to an inordinate period in pre-trial custody because that pre-trial custody period was punctuated by appearances in both the District Court and National Court, interviews and instructions taking by counsel, pre-trial hearing and the resultant trial dates being fixed for their case.

[6] Applicants have not by way of appropriate evidence discharged the onus of establishing that his continued detention was not justified.

[7] Bail application refused.

Cases Cited:

Bernard Juale v The State (1999) N1887
Re Fred Keating [1983] PNGLR 133
Malaki Kongo and Joe Akusi v The State (1996) N1544
Jacky Anton v The State N7158
John Peng v State (2010) N4134
Kopu Saroa v The State 2018 CR (AP) 877 of 2017 (unreported and unnumbered judgment I delivered on 9 March 2018)
Kuku Hayara v The State [2008] N3488
Martin Aibel v State [2009] N3636
Micheal Aia and Micheal Maneba v The State (2001) N2124
Osara v The State [2001] PGNC 149
Paul Guant v The State (2009) N3576
Re Boram Correctional Institution [2006] N3801
Theo Yausase v State [2014] SC 1381
Triga Kakarabo v The State [1999] N1891

Legislation Cited:

Constitution of Papua New Guinea
Criminal Code 1974
Bail Act 1977

Counsel:
Ms. Matana, for the State
Ms. Katurowe, for the Applicant

RULING ON APPLICATION FOR BAIL

9^th March, 2018

1. KAUMI AJ: This was an application for bail under s. 4 and s. 6 of the Bail Act (Chapter. 340) by two applicants charged with the wilful murder. I heard the application and refused it on 9 March 2018. The reasons for my refusal were given in brief orally. Section 16 of the Bail Act requires that I put the reasons for my refusal in writing necessitating due compliance which I now do.

THE RELEVANT LAW

2. In my judgments on an application for bail by applicants charged with wilful murder in Jacky Anton v The State (2018) N7158 which I delivered on 9 March 2018 and Kopu Saroa v The State (2018) N7185 which I delivered on 9 March 2018, I labored to discuss the relevant law with respect to bail at length and I adopt them and will not repeat them suffice to state Kandakasi. J’s summary of these principles in Osara v The State which I respectfully adopt and reproduce:

“A. A person arrested and charged with an offence is entitled under s.42(6) of the Constitution to bail at any time except for wilful murder and treason but a bail authority still has the discretion to refuse bail “if the interest of justice otherwise requires”.

B. The Bail Act (Chp.340) by s.9 sets out the circumstances in which bail may be refused;

C. The existence of one or more of the circumstances under s.9 of the Bail Act may form the basis to refuse bail but that is not automatic. There is a discretion in a bail authority to grant bail if an applicant for bail is able to show by appropriate evidence that he his “continued detention in custody is not justified”.

D. The burden to produce appropriate evidence to form a foundation for a grant of bail is not a difficult and complicated one because by virtue of s.9(2) of the Bail Act the application of the technical rules of evidence are excluded;

E. The list of circumstances under s.9 of the Bail Act is not exhaustive and other factors such as the following may be taken into account before deciding whether or not to grant bail:

a) “The applicant being a habitual criminal;

b) Whether applicant is a trustworthy person and will meet any bail terms that may be imposed;

c) The number of bench warrants outstanding for bail jumpers for the kind of offence the applicant is held in custody for;

d) The cost and expenses the society may be put through in trying to bring the applicant to justice if he breaches his bail terms which may mean delays in a speedy trail which may have the risk of the State loosing vital evidence supporting the charge against the applicant;

e) The expenses and the trouble the society through the Police Force, has been put through to secure the applicant’s arrest and incarceration;

f) Whether the proposed guarantors are serious in their proposal having regard to the amount of money they are able to pay in sureties;

g) Whether the amount of cash bail proposed has any relative correspondence to the offence with which he has been charged; and

h) Whether the applicant would have already served his penalty without a trial by reference to the offence with which he has been charged and the possible date for his trial”.

THE PRESENT CASE

3. The Applicants are jointly charged with one count of wilful murder and apply for bail pursuant to section 4 and 6 of the Bail Act and advance one ground for the grant of bail. That sole ground is prolonged detention as an exceptional circumstance.

4. They argue that because they have been kept in continued detention for more than a year to date awaiting trial, this detention amounts to prolonged detention and as such is an exceptional circumstance.

5. The Affidavits In Support of both Applicants are identical in the number of paragraphs (12 each), the wording (paragraphs 1, 2 and 4 to 12), paragraph 3 being different for reasons of their personal particulars. I point out these similarities for purposes of reference in the body of my judgment.

6. The Applicants’ ground for bail is particularized in paragraph 5 to 10 of their respective Affidavits in Support, essentially that they were committed to stand trial on the on 27 April 2016 and their case was pre-trialed on 18 August 2017 and trial dates fixed for 14 to 16 May 2019.

7. As an appendix to this ground for bail the Applicants state at paragraph 8 the payment of K9, 000.00 in cash and 3 live pigs valued K1000.00 each to the relatives of the deceased and that they have reconciled. This is a matter that can be put forward in their mitigation on sentence in the event that they are convicted.

8. Paragraph 10 of the Affidavits In Support state their nominated guarantors and their pledge of K250.00 each.

9. With respect to the ground for the application the Applicants state that they do not rely on section 42 (2) of the Constitution for obvious reasons however that by the operation of section 37 (3) of the Constitution they are entitled to be tried within reasonable time which section 37 (14) stipulates is 4 months and further that they have been in custody for more than a year to date awaiting their trial and therefore that their detention amounts to prolonged detention and is consequently an exceptional circumstance. I will address this issue later in my judgment.

10. The first issue I address is whether the State has established by evidence on reasonable grounds to the satisfaction of the court of the existence of one or more of the considerations under section 9 (1). I have perused the Summary of Facts (Annexure A) I am satisfied that there is evidence of the use of a dangerous weapon, a screw driver to stab the deceased in the chest which led to his death and this establishes the consideration under section 9 (1) (c) (i) of serious assault. The Applicant concede to this at paragraph 18 of their Submission on Bail Application. Nevertheless the Applicants contend that given the “presumption of innocence” guaranteed to them by section 37 (4) (a) of the Constitution this consideration should not be taken into account to restrict bail.

11. The question of the innocence or otherwise of an applicant is not a matter for consideration in a bail application. The application or use of the “presumption of innocence” by an applicant in an application for bail is irrelevant as the relevant issue in such proceedings is the grant or refusal of bail. A bail application cannot be premised on such a ground. Such a fundamental question as this is for the trial proper.

12. The Supreme and National courts have stated on many occasions that it is not relevant in a bail application the question of the innocence or otherwise of an applicant in the commission of an offence. See Martin Aibel v State [2009] N3636 and Malaki Kongo and Joe Akusi v The State (1996) N1544 and as Kirriwom. J in Triga Kakarabo v The State [1999] N1891 aptly put it:

“What does it matter if he denies the charge? There is no question about his innocence until proven guilty. That is a matter for substantive hearing”.

13. The Supreme Court in the case of Dr. Theo Yausase v State [2011] SC 1112 said:

“The question of whether the applicant is innocent or guilty is not before the court. If it appeared that an applicant has been charged without any proper legal basis that might amount to an exceptional circumstance. But that is not the case here. The applicant has recently been committed for trial, so the fact that he is proclaiming his innocence is irrelevant to his bail application”.

14. So the contention by the Applicants that given the “presumption of innocence” guaranteed to them by section 37 (4) (a) of the Constitution the consideration under section 9 (1) (c) (i) of serious assault should not be taken into account to restrict bail I find is misconceived and I disregard it.

15. As a matter of course the next matter I address is whether or not the Applicant has established by way of appropriate evidence why his continued detention is unjustified. See Re: Fred Keating –v-The State.

16. I pose the question, have the Applicants spent an inordinate period in pre-trial custody?

17. Firstly in answering this question I note that the courts have stated regarding an inordinate period in pre-trial custody that in any bail application the court should take into account the length of time the applicant has been in custody, and that an applicant who has been in custody for an inordinate period may be able to show that this constitutes exceptional circumstances. However it is not automatic that an applicant who has been in custody for a longer period must be granted bail on that factor alone and that the bail authority must still consider where the interest of justice lies before deciding to grant or refuse bail. See Malaki Kongo and Joe Akusi v The State (supra), Bernard Juale v The State (1999) N1887, re Boram Correctional Institution [2006] N3801, Dr Theo Yausase v The State (supra), Kuku Hayara v The State [2008] N3488 and Paul Guant v The State (2009) N3576

18. Batari. AJ (as he then was) in Malaki Kongo and Joe Akusi v The State (supra) stated that:

“By the time the accuseds are brought to trial in April, 1997 they would have spent over 12 months in custody if they are not released on bail. This is a relevant consideration in their favour. It is however not the sole determining factor. One may bear in mind also that, despite the long wait, case trials in Waigani could now be expeditiously dealt with through case listings so that the accuseds are not least assured of being brought to trial on fixed dates. There is no uncertainty of their being ever brought to trial.

Besides there is no evidence or suggestion that prolonged detention is adverse to their health, for instance. Similarly a person detained on a wilful murder charge, in my view should show cause that his prolonged detention would either prejudice his defence or deny him the opportunity to adequately prepare his defence. He ought also to show cause that his detention would put his social activities and his family welfare, employment, or business engagement in jeopardy. These are some of the matters that in my view are relevant in the applicants favour and ought to have been covered in their applications. Those family difficulties they each spoke of through their lawyer in my view are not exceptional to them. I also do not see the urgency of such consideration when they have been in custody for some seven months now”.

19. Davani J, followed the decision of Malakai Kongo & Joe Akusi v The State (supra) in Michael Aia & Michael Maneba v The State (2001) N2124 saying:

“What are these exceptional circumstances? The Applicants have not shown any. The affidavit filed by the Applicants are very brief. They do not depose to matters pertaining to exceptional circumstance, some of which may be that, prolonged detention is adverse to their defence or that their social activities, family welfare, employment or business would be in jeopardy. These are matters that are relevant to the applicants and ought to have been covered but were not”.

20. Makail. J in Paul Guant v The State supra said:

“...prolonged detention alone is not a sole determinative factor. An Applicant must also established that due to the prolonged detention, he has being denied the opportunity to properly defend himself or prepare his case, or has suffered from ill health and so forth. Unless an Applicant establishes the adverse effect of prolong detention, it alone is not a strong factor for a successful bail application.”

an applicant has been charged without any proper legal basis that might amount to an exceptional circumstance. But that is not the case here. The applicant has recently been committed for trial, so the fact that he is proclaiming his innocence is irrelevant to his bail application”.

21. Secondly, from the evidence adduced to the court in the instant matter I note the following:

[a] The Applicants were arrested on 19 October 2015 and were committed to stand trial in the National Court by the Lae Committal Court on 27 July 2016:

[b] The Applicant’s case was pre-trialed on the 18^th August 2017;

[c] Trial dates were fixed for their case on the 14^th to 16^th May 2019.

[e] The amount of bail the Applicants are willing to pay should bail be granted is K500.00 each.

[f] The bench warrant list for Lae alone is contained in a National Court 54 page long document dating back to 1983 and records 1235 outstanding bench warrants of which 24 are for the charge of wilful murder.

[g] There are also 191 remandees awaiting trial at Buimo Correctional Institute here in Lae.

22. A pre-trial hearing occurs after counsel for the accused having obtained full instructions from them and informs the pre-trialing court of their instructions pertaining to the defense they raise, the number of defence witnesses to be called and prosecution witnesses who would be required for cross-examination, documentary evidence such as the record of interview, medical report, etc. that would be tendered by consent or objection raised and the basis for such objection and the estimated duration of trial and so forth. The State Prosecutor also prepares and submits in a pre-trial hearing on behalf of the State. Trial dates are then fixed for a particular case in terms of its date of committal.

23. I make particular mention of the pre-trial process because it is an essential part of the due process accorded to accused persons and in this matter the applicants were no different.

24. Having highlighted these matters I make the following observations:

[a] The applicants were charged on a proper legal basis and committed for trial;

[b] The Applicant’s case was pre-trialed on 18^th August 2017 and they were given fixed trial on the 14^th and 16^th May 2019. What this means is that despite their lengthy pre-trial period they were not prejudiced in their defence nor were they denied the opportunity to adequately prepare their defense. Their case has been accorded due process and the obvious reason why their trial dates were set to those dates was due to the huge backlog of remandees in Buimo. The sheer number of remandees (191) to date awaiting trial has seriously overwhelmed the justice system in recent history especially in light of the fact that Lae had only two judges until 2018. Trial dates have been set to 2020 as a natural consequence of the sheer number of accused persons committed for trial.

[c] Fairness dictates that for the expeditious dealing of cases the allocation of trial dates operates on a “first come first serve” basis and this basically entails the court through the due process of case listing allocating trial dates to those accused who were committed earliest so they are at the top of the queue in terms of trial dates while more recent committals join the queue and are given trial dates accordingly. This eliminates the uncertainty of their ever being brought to trial. There is no such thing as “jumping the queue”. More recent committals can have their matters disposed of earlier by choosing to plead guilty or if the Public Prosecutor decides to file a Nolle Prosequi or a declaration in their matters.

[c] The Chief Justice Sir Salamo Injia in his wisdom has in 2018 specifically assigned a total of three judges to the crimes track in Lae to address this backlog and so there is certainty of their matter being trialed as scheduled or earlier.

[d] The Chief Justice further in his wisdom decided for and which the Judiciary duly funded the construction of a court building right in the middle of premises of the prison, bringing its services right to their doorstep so to speak. Therefore they cannot argue that the justice system has not done its part as in my view it has played its part in ensuring that their case will be brought to a finality on the trial date or earlier;

[e] Their pre-trial period in custody has been punctuated by appearances in both the District Court and National Court, interviews and instructions taking by counsel and the resultant trial dates being fixed for their case. It is not as though they have been locked up, the key thrown away and them being lost in the general scheme of things. They have been accorded due process.

[f] The Applicants argue prolonged detention as an exceptional circumstance as the ground for bail but the mere statement of prolonged detention alone does not determine the grant or refusal of bail. There must be a clear establishment by way of appropriate evidence by the Applicants of adverse effect of prolong detention such as them being denied the opportunity to properly defend themselves or prepare their case or have suffered ill health and so forth. To argue prolonged detention without substantiating it does not assist the Applicants in their quest to be granted bail.

[g] The Applicants have not provided appropriate evidence to substantiate their ground of prolonged detention.

[h] Though the Applicants have spent a lengthy period of time in pre-trial custody it must be noted that it was not without proper cause as explained above and there are now three judges specifically assigned to the crimes track here in Lae, and their case has trial dates fixed for it so their trial will be dealt with expeditiously. This effectively eliminates the uncertainty of their being ever brought to trial.

[f] The reasons I have alluded to form the basis for my finding that the Applicants have not been unreasonably delayed in having their trial dealt within four months as per the requirement by section 37 (4) of the Constitution. Conversely I find their trial has been reasonably delayed and that the Applicants have not spent an inordinate period in pre-trial custody.

25. The amount of bail (K500.00 each) proposed by the Applicants is in my view inadequate and does not in any way correspond to the seriousness and gravity of the charge they face which is one of wilful murder contrary to section 299 of the Criminal Code. I am fortified in my view by what Kandakasi J said in Lester v The State [2001] PGNC 148; N2044 when commenting on the amount of bail being proposed by applicants and their guarantors which I endorse and respectfully adopt in the following terms:

“I also note with an appreciation of the provisions of s. 9 (2) of the Bail Act that, there is no credible evidence to show that the applicant if granted bail, will meet whatever terms may be imposed for his bail. I consider this very important because of the long list of outstanding bench warrants adding to almost 300, most of who appeared to have jumped bail. This calls for more care and caution to be exercised before acceding to an application for bail. In my view, a bail authority should first be satisfied that as a matter of fact the applicant if granted bail will faithfully meet any terms that may be attached to it including his appearing in court to be further dealt with in relation to the charge against him until excused by the Court. It would defeat the whole purpose of law enforcement efforts of bringing offenders to the Courts to be dealt with according to law if bails are granted without any certainty of the offender answering bail and therefore continue to submit to the jurisdiction of the Courts to be further dealt with, given the number of people breaching bail conditions.

I do not believe that, it was intended that bail should be granted without regard to the question of whether or not the applicant for bail will ever answer bail until excused by the Court in the due course of time and process. Indeed, s. 9 of the Bail Act does not have provisions relating to that issue. The practice of calling for guarantors and people giving guarantees and undertaking to ensure bail conditions being met seem is in line with that. Yet those who have been giving such guarantees perhaps and undertakings have not been serious with their undertakings and or guarantees perhaps because of the penalty or the consequences they stand to face appear no to be serious. It is high time now for cash bails and sureties to be increased upward to the thousands to give some seriousness and importance to the need to meet bail conditions. If most other jurisdictions impose such higher conditions, I see no reason why the level of cash bails and sureties should not be increased in our jurisdiction to either eradicate or minimize the number of bail jumpers.

I do appreciate that some may argue that imposing such terms may effect amount to the refusal of bail because of inability of offenders to raise the amounts required and therefore a breach of the Constitutional right to bail. Such an argument has to be viewed in the overall interest of the society and serious negative impacts crime in general is having on our society. One should also need to consider the large number of people breaching bail terms after the police have done their best in apprehending offenders and bringing them before the Courts. Granting bails without any regard to the difficulties and expenses the society through the police go through to bring offenders to the Courts would amount to injustice to society for the sake of an offender. The courts are required to administer justice and it behoves the courts to consider and take such issues into account before granting bails in the interest of justice not only from the perspective of an offender but also the society, which are not necessarily the same.”

26. I find therefore that their lengthy time spent in pre-trial custody does not amount to an inordinate period and therefore not an exceptional circumstance.

27. For the reasons alluded to above:

[i] I find that there is certainty in the Applicants’ case in that trial dates has been fixed for it;

[ii] I find that the Applicants have not shown sufficient cause as to how their prolonged detention has either prejudiced their defence or denied them the opportunity to adequately prepare their defence.

[iii] I find that the Applicants’ affidavits were very brief and did not depose to matters pertaining to exceptional circumstances.

CONCLUSION

28. The applicants have not by way of appropriate evidence discharged the onus of establishing that their continued detention is not justified.

29. Accordingly I refuse bail and the applicants are remanded to await their trial dates.
___________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Applicant