N7230
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 883 OF 2017

DAVID JAMES GEORGE

V

STATE
Lae:	Numapo AJ
2018:	20th March
2018 & 17th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail Application – Wilful Murder – s. 299 Criminal Code – Bail not readily available for wilful murder - s.42 (6) Constitution - Prolonged detention not a sole determining factor – Exceptional circumstances must be shown – Onus on the applicant - Grounds for refusing bail not exhaustive– s 9 Bail Act -  Interest of Justice - Discretion of Bail Authority – Bail refused

Facts
The applicant was charged with wilful murder under section 299 (1) of the Criminal Code. It was alleged that on the 28th October 2008 at Gurakor village, Mumeng LLG, Bulolo District in the Morobe Province he wilfully murdered another person by the name of Graham Wanema. He was committed to stand trial on the 07th September 2016 and has been awaiting his trial since.  He has been in custody for more than a year. 

Held:
(i)	Bail is not readily available for wilful murder.

(ii)	The presumption on the right of bail does not equally apply to wilful murder cases. 
(iii)	Prolonged detention is a relevant consideration in the applicant’s favour but not the sole determining factor.  

(iv)	The decision whether to grant or refuse bail for wilful murder remain matters for the discretion of the Court.

(v)	Applicant’s brief affidavit did not disclose matters to show exceptional circumstances that make his continued detention unjustified in order for the Court to exercise its discretion in his favour.

(vi)	Applicant has not satisfactorily discharged the onus placed on him by way of appropriate evidence to show prolonged detention would adversely affect the preparation of his defence, his health and well-being including the welfare of his family as well as his employment.

(vii)	Bail is refused.

Cases cited:
Bernard Juale v State (1999) N1887
Fred Keating v State [1983] PNGLR 133
John Peng v State (2010) N4134
Kuo Dua v State (1984) PNGLR 22
Malaki Kongo and Joe Akusi v The State (1996) N1544
Osara v The State [2001] PGNC 149
Paul Guant v State (2009) N3576
Re: Boram Correctional Institution [2006] PGNC 176; N3801 
Seki v State (2013) N5358
Theo Yausase v State (2011) SC 1112

Legislation Cited:
Constitution of Papua New Guinea
Criminal Code 1974
Bail Act 1977

Counsel:

S. Katurowe, for the Applicant
J. Done, for the State

17th April, 2018
1.	NUMAPO AJ: 	This is the ruling on a bail application made by the applicant David James George charged with wilful murder pursuant to section 299 (1) of the Criminal Code Act.  He was committed to stand trial by the Bulolo District Court on the 07th September 2016.  He first appeared for mention at the National Court on the 06th March 2017. He has been in custody for more than a year. He raised prolonged detention to seek bail. This is his first bail application.
2.	In his brief affidavit, the applicant stated that he is 44 years old and is married with three children and lives in Gurakor village, Mumeng LLG, Bulolo District, Morobe Province. He is employed as a PMV driver along the Lae-Wau highway at the time of his arrest and detention. He has been in custody for more than a year after his committal. He is willing to pay a cash bail of K1000 and have nominated two guarantors who each have pledged cash surety of K500. He undertakes to comply with all the bail conditions if granted bail.
Bail Application – Wilful Murder 
3.	The applicant applied for bail under ss 4 and 6 of the Bail Act. Section 4 vest power in the National and the Supreme Court in respect of the right to bail for persons charged with wilful murder, treason, murder or an offence punishable by death and such application can be made at any time after a person has been arrested or detained or at any stage of the proceedings pursuant to section 6 (1).  
4.	Section 4 (1) (a) of the Bail Act states that: “A person charged with wilful murder, murder or an offence punishable by death shall not be granted bail except by the National or the Supreme Court.” 
5.	Section 42 (6) states: ‘’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.” Section 3 of the Bail Act give effect to s 42 (6) of the Constitution.  
6.	The Constitutional provision (s 42 (6)) avails bail at all times to all persons charged with a criminal offence except for wilful murder and treason where the right to bail, although available, is not automatically granted as of right to those charged with wilful murder (or treason). It is granted at the discretion of the Court and for the Court to grant bail in his favour the applicant must show exceptional circumstances.  A number of case laws developed over the years stated clearly the requirement to show exceptional circumstances. The leading case authority on this is the case of Fred Keating v The State [1983] PNGLR 131. In that case the Court held that; “an applicant must show exceptional circumstances by appropriate evidence why his continued detention is not justified. And the requirement of exceptional circumstances places the onus on the applicant.”  The decision was adopted and followed in a number of recent cases. See Kuo Dua v The State (1984) PNGLR 22; Malaki Kongo & Joe Akusi v The State (1996) N1544; Bernard Juale v The State (1999) N1887; and John Peng v State (2010) N4134.
7.	Section 9 (1) (a) – (j) of the Bail Act sets out the grounds on which bail may be refused if one or more of the considerations is present. However, the guidelines under s 9 is not exhaustive as there are other considerations such as the interest of justice to refuse bail or discretion of the bail authority to grant bail if exceptional circumstances can be shown by the applicant. See Re: Fred Keating (supra).
8.	Generally speaking, bail is not readily available to a person charged with wilful murder. He does not enjoy the presumption on the right to bail under s 42 (6) of the Constitution and s 9 (1) of the Bail Act. And bail is not granted simply because the application is correctly under s 4 of the Bail Act. In the recent case of Seki v The State (2013) N5358, the Court held that; ‘’for applicants charged with wilful murder, bail is not available as of right and for that right to be invoked the applicant must show exceptional circumstances; per Bernard Juale v The State (supra).
9.	To show exceptional circumstances the applicant must by appropriate evidence show that prolonged detention is adverse to his health and wellbeing and that it would deny him the opportunity to adequately prepare his defence. He ought to also show that his detention would put his social activities and his family’s welfare, employment or business engagement in jeopardy. These are matters relevant for consideration by the Court. See Re: Malakai Kongo & Joe Akusi v The State (supra).
10.	In summing up the right to bail (s 42 (6) Constitution) together with grounds for refusing bail (s 9 (1) Bail Act) the Supreme Court in Yausase v The State (2011) SC 1112, held that;
 “an applicant charged with wilful murder does not enjoy the presumption in favour of bail arising from s 42 (6) of the Constitution that operates in favour of bail for an applicant charged with any offence other than wilful murder or treason. However, the applicant does enjoy the benefit of s 9 (1) of the Bail Act which means bail can only be refused if the Court is satisfied that one or more circumstances in that provision apply. However, if one or more of them do apply, the Court is not obliged to refuse bail, the decision whether to grant or refuse bail remain matters for the discretion of the Court. Unless one or more considerations set out under s 9 (1) (a) – (j) of the Bail Act is present that may form the basis to refuse bail. The presumption on the right of bail does not equally apply to wilful murder cases.” 

Present Application

11.	The applicant is seeking bail on the ground of prolonged detention. He has been in custody for 1 year, 8 months and 11 days to be precise to the day this application was made. Generally speaking, it is not unusual for a person charged with wilful murder to be held in custody for that kind of period. 
12.	According to Court records the applicant first appeared before the National Court on the 06th March 2017, five months after he was committed to stand trial by the Bulolo District Court on the 07th September 2016. I am not able to ascertain from the file endorsements why it took five months from the date of his committal to appear for mention in the National Court. In line with current practice the applicant’s case should have been listed for call-over on the first Monday of the following month after committal and in this case, it would have been the first Monday of October 2016 but for some reasons this did not happen. When the matter was raised the State informed the Court that such delays are not unusual especially in transmitting committal files from Bulolo and other outline districts of the province to the National Court Registry in Lae. I do not necessarily accept the explanation given and it is obvious to me that someone at the District Court registry is not doing his or her job. I discovered later that Bulolo District Court has been without a magistrate and a clerk of Court for almost a year. The resident magistrate was suspended from duty and few weeks after he resumed duty he passed away. The clerk of Court was hospitalized following a car accident. All these contributed to the delay in dealing with the matter expeditiously.
13.	The Counsel for the applicant correctly pointed out that bail is not available to her client as of right because s 42 (6) of the Constitution does not give automatic right to bail for a person charged with wilful murder. The applicant must show exceptional circumstances why his continued detention is not justified. Counsel however, raised prolonged detention stating that it constitutes exceptional circumstances and referred to the case of Re: Boram Correctional Institution [2006] PGNC 176; N3801 (31 May 2006). In that case 50 out of 61 remandees of Boram Correctional Institution were granted bail out of which 6 were charged with wilful murder and who were in custody for periods ranging from ten months to three years. The applicants sought to be released on bail because they were detained for a prolonged period of time without being brought to trial within a reasonable time. The Court took into account the length of time the applicants have been in custody and held that generally, the longer the period in remand the more likely it is that an applicant will be granted bail. An applicant who has been in custody for an inordinate period may be able to show that this constitutes exceptional circumstances. In addition, if any of applicant’s rights under s 42 of the Constitution is breached then this will work in favour of the granting of bail. In summing up the Court held that; 

“the worse the conditions of detention (breach of rights) and the longer the period in custody (exceptional circumstances) the more likely it is that bail will be granted”.

 However, even if these exceptional circumstances are present the decision to grant or refuse bail remain matters for the discretion of the Court. See Re: Yausase v The State (supra).  
  
14.	It is well established in a number of case laws that prolonged detention is a relevant consideration in the applicant’s favour, but not the sole determining factor. See: Re: Malaki Kongo and Joe Akusi (supra). Prolonged detention is a relevant consideration in support of a bail application but not the basis upon which bail may be granted.  Applicant must show how prolonged detention might for example; deny him the opportunity to properly prepare and defend himself or that his health has suffered or likely to suffer or that his family’s welfare is affected as a result of his continued detention. And unless the applicant establishes the adverse effect of prolong detention, it alone is not a strong factor for a successful bail application. See Paul Guant v The State (2009) N3576.    
15.	In the present case the State did not raise any considerations in s 9 (1) of the Bail Act to oppose bail and basically relied on s 42 (6) of the Constitution that the applicant is not entitled to bail and therefore should not be granted bail.  
16.	The applicant stated in paragraphs 3 and 4 of his affidavit that he is married with three children and lives in the village with his family. In paragraph 5 he stated that that he is employed as a PMV driver and in paragraph 7 he raised prolonged detention as a ground to seek bail. 
17.	The applicant and his family live in the village in a subsistence lifestyle and depend mainly on their gardens for food. They live a simple and unsophisticated life. I imagine that the cost of living in monetary terms would be very minimal. The income that the applicant receives as a PMV driver is not the only means or source of their survival but an added bonus, so to speak, to supplement their subsistence lifestyle. The applicant did not say how long he has been in the job and if this was a part-time or full-time job and how many days a week is he required to drive. He also did not say how much he earns a week, or fortnightly or monthly. However, it is common knowledge that PMV drivers are mostly paid on casual or commission basis depending on the number of runs they do in a week and how much money they make. They do not have a static fortnightly or monthly income per se. 
18.	The applicant’s brief affidavit only stated his personal circumstances and background it did not disclose matters that give rise to exceptional circumstances to show that his continued detention is unjustified. He ought to show sufficient cause that his prolonged detention would have an adverse impact on his welfare and that of his family including his employment. These are relevant matters in favour of the applicant and ought to have been covered in the bail application but were not. See Re: Malaki Kongo and Joe Akusi (supra). His loss of employment and the effect it has on his family are not exceptional circumstances peculiar to his case. This is expected of anyone who is detained in custody and the applicant is no exception. The applicant has not shown exceptional circumstances in his affidavit for me to exercise my discretion in his favour. And I adopt what Davani J (as she then was) said in Michael Aia & Michael Maneba v The State (2001) N2124 where her Honour asked: 
“What are these exceptional circumstances? The applicants have not shown any. The affidavits filed by the applicants’ are very brief. They do not depose to matters pertaining to exceptional circumstances, 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’’.  
19.	I have considered the applicant’s personal circumstances and background and also that of his family but found no evidence suggesting that his continued detention has adversely affected his health or welfare or that of his family’s welfare and wellbeing. Furthermore, with respect to the welfare of his family, I have no doubt in my mind that a father-figure will quickly emerge from within the applicant’s own immediate family or clan to fill in the vacuum to support the family if and when the need arises and this is not unusual in the Melanesian society given the extended family support network that we have which effectively caters for everyone in the village. In that respect I cannot see how his family’s welfare will suffer as a result of his continued detention.
20.	The applicant ought to realize that he does not enjoy the right to bail guaranteed under s 42 (6) of the Constitution for an offence of wilful murder and therefore it won’t be an easy walk in the park for him to get bail. He must put in the extra effort to show by appropriate evidence exceptional circumstances why his continued detention is not justified. And the onus is on him to convince the Court that exceptional circumstances makes his continued detention unjustified. See Re John Peng v The State (supra); Kuo Dua v The State (1984) PNGLR 22. He has not shown any exceptional circumstances to convince me why his detention is not justified for me to exercise my discretion in his favour to grant him bail.
21.	The applicant also asked the Court to consider the interest of justice and grant bail on that basis. The applicant submitted that the bail authority must consider all options and if interest of justice lies in favour of granting of bail then bail should be granted. It referred to Re: Yausase v The State (supra) where the Court held that; 
“…..it is not automatic for an applicant who has been in custody for a longer period to granted bail on that factor alone. The bail authority must still consider where the interest of justice lies before deciding to grant or refuse bail. If the interest of justice lies against granting bail then it must be refused even though the applicant has been in custody for a lengthy period. Such a conclusion is giving effect to s 42 (6) of the Constitution.” 
22.	In my view, interest of justice and discretion of the bail authority operates in the opposite directions, so to speak. Interest of justice normally lies against granting bail giving effect to s 9 of the Bail Act and s 42 (6) of the Constitution. See Osara v The State [2001] PGNC 149. On the other hand, the discretion of the bail authority lies in favour of granting bail. See Re: Yausase v The State (supra). Section 9 does not automatically prevent bail, there is always a discretion in the bail authority to grant bail. Case laws developed over time have considered exceptional circumstances as a ground on which the Court, if convinced, can exercise its discretion in favour of granting bail especially for offences where bail is not a right such as wilful murder and I have covered much of that already at the outset. For this reason, I am not able to see how the applicant can be successful by advancing the argument on the interest of justice as a ground to seek bail because it does not operate in favour of an applicant who is seeking bail. 
23.	Finally, Bulolo currently has a total of 98 pending cases going back as far as 2014. However, the number has since been reduced following a recent court circuit there in March of this year. The applicant was committed to stand trial in the later part of 2016 so it is considered a recent case under the new case management strategy we adopted recently to address the long criminal lists in Morobe Province. Priority is given to cases based on their date of committal. Those committed earlier are given trial dates ahead of those committed recently on a ‘first come first serve basis.’ Trial dates for the applicant was initially fixed for the 12th to 15th August 2019 but it is currently being reviewed with the possibility of bringing forward the trial to this year. With an additional crimes track created this year it now brings the total number to three crimes tracks altogether and it is most likely that the applicant’s trial dates will be fixed within this year. In that regard the applicant is not disadvantaged. In addition a good number of Bulolo/Wau cases have recently being dealt with here in Lae and there is a real possibility that the applicant’s case might be dealt with in the same way if the Bulolo/Wau Police can assemble their witnesses and bring them to Lae instead of waiting for the circuits to be conducted there. Furthermore, the number of circuits to Bulolo will also increase this year to four instead of two as in the past. All these new developments now gives some certainty to the applicant that his case will be dealt with sooner rather than later.

Bail is refused.
Orders Accordingly

Public Solicitor:  		Lawyers for the Applicant
Public Prosecutor:		Lawyers for the State