Saroa v State [2018] PGNC 112; N7185 (9 March 2018)

N7185

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 877 of 2017

KOPU SAROA
Applicant

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 Applicant to show sufficient cause why continued detention not justified- Insufficiency of evidence of adverse effect caused by prolonged detention prejudicing his defence or denying him the opportunity to adequately prepare his defence.– Onus on applicant not discharged–No exceptional circumstances shown-Bail refused-Constitution-section 42 (6)-Bail Act-sections 4,6 and 9-Criminal Code-section 299.

Facts

A remanded man charged with wilful murder applied for bail. Applicant failed to show sufficient cause why continued detention was not justified.

Held

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

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

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

[4] Applicant’s affidavit very brief and did not depose to matters pertaining to exceptional circumstances.
[5] Applicant’s pre-trial custody of 18 months did not amount to an inordinate period in pre-trial custody.

[6] Applicant has 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
John Peng v State (2010) N4134
Kuku Hayara v The State [2008] N3488
Malaki Kongo and Joe Akusi v The State (1996) N1544
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
Re Fred Keating [1983] PNGLR 133
Theo Yausase v State [2014] SC 1381

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 the applicant 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 the reasons which I now give in full in due compliance.

THE RELEVANT LAW

2. In my judgment on an application for bail by a man charged with wilful murder in Jacky Anton v The State (2018) N7158 which I delivered on 9 March 2018, I discussed the relevant law with respect to bail in this country after considering the principles stated in twenty six (26) Supreme and National Court cases spanning 35 years from 1980 to 2018.

3. I adopt and reproduce the pertinent parts of my judgment in Jacky Anton v The State (supra) that state these principles on bail at paragraphs 15, 16, 17, 18, 23, 24, 25, 26, 27, 31 and 32:

“15. In Papua New Guinea, the law on Bail finds its genesis in its Constitution. Section 42(6) (liberty of the person) of the Constitution provides:

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

16. The entitlement to bail by this Constitutional guarantee is not automatic as it is qualified by the phrase “unless the interests of justice otherwise require”. And the determination on an issue of this qualification is by the bail authority i.e. as to whether or not, “the interests of justice otherwise requires” a refusal of bail.

BAIL ACT

17. “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 will not appear at his trial if granted bail; or

(b) That the offence with which the person has been charged was committed whilst the person was on bail; or

(c) That the alleged act or any or the alleged acts constituting the offence in respect of which the person is in custody consists or consists of:

(i) A serious assault; or

(ii) A threat of violence to another person; or

(iii) Having or possessing a firearm, imitation firearm, other offensive weapon or explosive;

(d) That the person is likely to commit an indictable offence if he is not in custody; or

(e) It is necessary for the person’s own protection for him to be in custody, or

(f) That the person is likely to interfere with witnesses or the person who instituted the proceedings; or

(g) That the alleged offence involves property of substantial value which has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property.

(2) Subject to subsection (3), a bail authority shall not refuse bail on the basis of a consideration specified in Subsection (1) unless facts relating to that consideration have been established to the reasonable satisfaction of the bail authority either of its own knowledge or on the evidence furnished by a credible person.

(3) 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.”

18. The Supreme Court in Keating v The State [1983] PNGLR 133 (24 May 1983) held that:

1. An application for bail by a person charged with wilful murder is to be determined pursuant to s. 9 of the Bail Act only, i.e. without reference to the interest of justice.

2. The grant or refusal of bail pursuant to s. 9 of the Bail Act is discretionary in all cases other than wilful murder and treason.

3. The grant or refusal of bail to s. 9 of the Bail Act is discretionary in cases of wilful murder (and treason)

4. Once one or more of the considerations in s. 9(1) are proved bail should be refused unless the applicant shows cause why his detention in custody in not justified.

5. There are two categories of bail applicants

A. Those who are charged with wilful murder or treason; and

B. Those charged with other offences.

6. Category A applicants

A. They must appear to the National Court and the Supreme Courts for bail.

B. Their applications for bail are not subjected to the interests of justice [see s.42 (6) Constitution]

7. Category B applicants

A. They are guaranteed bail at all times under s.42 (6) of the Constitution.

B. Their applications are subject to the “interests of justice” by s.42 (6) of the Constitution.

C. They can apply to Police, Local Courts and District Courts for bail.

23. Andrew J. in Re Fred Keating (supra) stated the correct position in law (and which I subscribe to) with respect to the use or otherwise of discretion in bail applications by applicants charged with wilful murder:

“The use of the word in s. 9(1) that the bail authority “shall not refuse bail unless satisfied...”illustrates that prima facie one is entitled to bail. That is the intent of the Constitution and the Bail Act. When one or more of the considerations in s.9 (1) is shown to exist then there is a ground for refusing bail. The use of the word “shall” does not mean, in my opinion that bail must as a matter of course be refused when those matters are proved. To read it that way would be contrary to the whole scheme and intent of the constitution and the Bail Act. Whether or not bail is refused is a matter of discretion.

...In my judgment the use of the word “shall” in s.9 (1) of the Act shows that it can be seen that the bail authority must refuse bail if one or more of the conditions are proved unless the applicant shows cause why his detention in custody is not justified. Such an exercise is always discretionary.

...There is nothing in the terms of the Bail Act to except wilful murder from the categories of bailable offences and bail prior to conviction is to be determined by the National Court or Supreme Court as the case may be in accordance with s. 3 and s. 4 and the conditions of s.9 of the Act, There is nothing in s.9 which refers to special and exceptional circumstances.”

24. Kirriwom. J in the case of Bernard Juale v The State (1999) N1887 stated:

“There is one school of thought that says that once I have found that one of the grounds in s.9 (1) has been established, I have no discretion to grant bail if the charge is that of wilful murder. I beg to differ with this view, even if this is the correct interpretation of the law In re Fred Keating. If that is what the law is, in my respectful view, it needs to be corrected. I think there will be, as is always the case, exceptional circumstances such as those alluded to by Andrew J in his judgment in the same case that would warrant bail even in wilful murder. The question is always on of degree. Each case must be decided on its own peculiar circumstances”.

26. Makail. AJ (as he then was) in John Peng v State (2010) N4134 said:

“Further and more importantly, section 42(6) of the Constitution states that bail is not available as of right to a person charged for wilful murder. It is granted at the discretion of the Court and the Courts have in the past considered bail for applicants charged for wilful murder by applying the exceptional circumstances test. In other words, an applicant charged with wilful murder must establish to the satisfaction of the Court that his or her continued detention is unjustified: see Re: Fred Keating –v-The State (supra)

27. Kandakasi. J in the case of Osara v The State [2001] PGNC 149 succinctly summarized the legal principles emanating from various cases which I respectfully adopt. And he did so in these terms:

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”.

31. The determination that there exists an exceptional circumstance is not an automatic guarantee to a grant of bail as the prevailing consideration is the interests of justice. There might still exist good reasons for refusing bail.

32. In the words of Batari (AJ) (as he then was) in Malaki Kongo and Joe Akusi v The State (1996) N1544 “the applicants must show “sufficient cause” why their detention in custody is not justified. As to what may amount to detention not justified, will be assessed from a case to case basis, and the bail authority has discretion to grant bail”.

THE PRESENT CASE

4. The Applicant is charged with one count of wilful murder and applies for bail pursuant to section 4 and 6 of the Bail Act and advances two grounds for the grant of bail. Firstly he relies on prolonged detention as an exceptional circumstance and the second ground he relies on is that the summary of facts are an exaggeration.

5. The Applicant’s grounds for bail are set out under paragraph 6 to 13 of his Affidavit in Support that he was committed to stand trial on the 1^st of February 2017 but was never brought before the National Court for more than a year. Secondly that his charge has been exaggerated to Wilful Murder when he should have been charged with a lesser charge of Manslaughter or Murder given the circumstances at the material time as outlined in the summary of facts.

6. With respect to the first grounds the Applicant argues that an injustice was done to him in that to date he has not appeared before the National Court either for call-over or pre-trialing for more than a year and because of this it amounted to prolonged detention.

7. The first matter 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 dried piece of wood to hit the deceased twice on the head causing him to fall to the ground which allegedly caused his death and which establishes the consideration under section 9 (1) (c) (i)-serious assault. Be that as it may the Summary of Facts are essentially a summary of the allegations against the Applicant nevertheless it is still evidence properly before the court to consider and by the operation of section 9 subsection (2) this court may act on such information.

8. 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 (supra).

9. Has the Applicant spent an inordinate period in pre-trial custody? From my research on what amounts to an inordinate period I have found that the courts have stated generally 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 supra, re Boram Correctional Institution[2006] N3801, Dr Theo Yausase v The State [2014] SC 1381, Kuku Hayara v The State [2008] N3488 and Paul Guant v The State . (2009) N3576

10. 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”.

11. 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”.

12. 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.”

13. The Applicant was arrested on 21 September 2016 and was committed to stand trial in the National Court by the Lae Committal Court on 1 February 2017.

14. The Applicant advances prolonged detention as an exceptional circumstance albeit that the system has failed him as he said in paragraph 6 of his Affidavit in Support:

“I was subject to injustice by the justice system of this country in that I was initially apprehended and arrested on the 21 September 2016 at Wau Police Station”.

15. And further at paragraph 7 he states: “The last time I appeared before the Lae Committal Court was on 1st of February 2017 in which I was committed to the National Court”.

16. The applicant was charged with proper legal basis and committed for trial. Going by the dates given by the Applicant he has been in custody for a little over one year and six months. Given this is the period he has spent in pre-trial custody the next question to be asked is what steps has the Applicant or his counsel taken to progress his case to an early trial if as he argues the justice system has subjected him to injustice or failed him. I also note from the Applicant’s affidavit in support at paragraph 10 that the Applicant had the services of not one but two counsels during this period so it wasn’t as if he was unattended to. Further if as he attests to in his affidavit at paragraph 10 that his initial counsel Mr Kusip did nothing for him then the Office of the Public Solicitor’s lawyers were always available to represent his interests. Accused persons can’t have their cake and eat it in a manner of speaking. He must show evidence that he was interested in securing a trial date, he can’t just sit back, hold his arms and expect things to happen on their own. And certainly it is not the function of the court to go to a prison and obtain instructions from accused persons and thereafter represent them in securing trial dates for them.

17. There should be genuine and serious steps taken by the Applicant to secure an early trial albeit the system has failed him. I highlight some of these steps in the form of questions:

[a] During this period of 1 year 6 months have his counsels visited him in prison to confirm instructions from him pertaining to his defence?

[b] if so how many times have his counsels gone to see him over a period of 1 year six months?

[c] have his counsels spoken to the State prosecutor regarding the instructions he gave?

[d] have his counsels raised his concern with the National Court registry with the view to having a call-over of his matter?

[e] what other steps have his counsels taken to secure an early trial date?

16. The Applicant argues prolonged detention as an exceptional circumstance so as a 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 Applicant of adverse effect of prolong detention such as he being denied the opportunity to properly defend himself or prepare his case or has suffered ill health and so forth. To argue prolonged detention without substantiating it does not assist the Applicant in his quest to be granted bail.

17. I have certainly not been privy to any such evidence whatsoever and given that the operation of section 9 (2) of the Bail Act makes the burden to produce appropriate evidence to form a foundation for a grant or refusal of bail less onerous on the applicants.

18. The Applicant has not provided appropriate evidence to substantiate his ground of prolonged detention.

19. Justice as they say is a double edged sword meaning it cuts both ways, so whilst as he argues that the system may have failed him it may equally be asked of him, what you have done to secure an early trial date. The days of casting the responsibility of ensuring an early trial date for an accused solely on the court should be a thing of the past as all stakeholders in the administration of justice should diligently work together in ensuring justice is not only done but is seen to be done.

20. Though the Applicant has spent a period of time in pre-trial custody it must be noted that there are now three judges specifically assigned to the crimes track here in Lae, and so his trial can be expeditiously dealt with through the due process of case listing and be assured of a fixed date. This effectively eliminates the uncertainty of his being ever brought to trial. Therefore the justice system cannot be found wanting and it has certainly not failed him.

21. I find that the Applicant has not spent an inordinate period in pre-trial custody.

22. With respect to the second ground of the Applicant’s application arguing an exaggeration of the summary of facts my response to this ground is simple, the applicant was arrested on a proper legal basis and dealt with by his committal by the District Court and the summary of facts was part of the committal depositions the committal court considered in its decision to commit. The veracity or otherwise of an allegation in a summary of facts or charge are not matters a bail authority such as a court should be burdened with. Certainly such matters are the property of the trial court to decide and not a bail authority. Therefore an allegation that a summary of facts is an exaggeration cannot be a ground for application for bail by accused persons charged with wilful murder and I am not prepared to read in such a prescription as suggested by the Applicant. It is not even a technical error as stated by the Applicant’s counsel and I have great difficulty trying to reconcile this ground let alone comprehend just how the Applicant or his counsel can use such an argument as this to support his bail application. I have been made none the wiser by the absence of a plausible explanation by counsel as to what an alleged exaggeration of the summary of facts or a technical error has to do with an exceptional circumstance. I have been urged by the Applicant’s counsel to accept this ground as a valid one just because another court has granted bail on the basis of it. I do not find this to be valid enough a reason to follow suite for the reasons aforementioned. It is trite law that I am not necessarily bound by what another court of similar jurisdiction has decided on a similar issue.

23. I make the following observations:

[i] I consider a period of 24 to 36 months to be an inordinate period;

[ii] I note that there is certainty in the Applicant’s case in that a date has been allocated for its call-over;

[iii] I note the Applicant’s affidavit was very brief and did not depose to matters pertaining to exceptional circumstances.

[iv] I note that the Applicant has not shown sufficient cause as to how his prolonged detention has either prejudiced his defence or denied him the opportunity to adequately prepare his defence.

CONCLUSION

24. I find that the Applicant has not by way of appropriate evidence discharged the onus of establishing that his continued detention was not justified.

25. I refuse bail and the Applicant shall be remanded until his date of trial as scheduled or earlier.
_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Applicant