State v Bailey [2018] PGNC 214; N7319 (22 June 2018)

N7319

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR (AP) NO 155 OF 2018

THE STATE

V

ALOIS BAILEY

Kimbe: Miviri AJ
2018 : 21^st June

CRIMINAL LAW – Application for bail –Wilful Murder- S299 CCA – s9 (1) (c) (i) (ii) (iii) Bail Act – bail objected – bail not granted.

Facts

The Applicant was charged with Wilful Murder with two others.

Held

1. Bail objected
2. Bail not allowed
   

Cases sited:

Re Thomas Markus [1999] PGNC 82; N1931
Fred Keating [1988] PNGLR 133

Counsel:

L. Jack, for the State
D. Kari, for Defendant

RULING ON BAIL
22^nd June, 2018

1. MIVIRI AJ: This is the ruling on an application for bail made by the applicant who is in custody charged for Wilful Murder with two others. He made an earlier application which was refused by this court. This is a new application remade contending that what was addressed in the refusal has been addressed and he now comes on that basis to seek bail. The court will hear the application on the basis of Re Thomas Markus [1999] PGNC 82; N1931 (15 September 1999).
   

Facts

2. The Applicant Alois Bailey is charged on information dated the 23^rd November 2016 that he on the 12^th November 2016 at Minda Talasea together with two others wilfully murdered one Cletus Kito Mane.
   
3. The statement of facts are that on that day he and the two others went to the beach where the deceased was. They chased him over an allegation that he had damaged the canoe of William Kiu and cut him with bush knives on his body repeatedly from which he died from loss of blood.
   
4. He makes an application for bail pursuant to Section 4 of the Bail Act and also Section (6). In so doing the provisions of Section 9 of the Bail Act are considered as to whether or not there are reasonable grounds upon which the applicant will appear at his trial whilst on bail. The offence is a threat of violence to another, use of offensive and dangerous weapons, and serious assault and death culminating. The material that the Applicant has filed in support does not refute or outweighs the requirements of Section 9 (1) (c) Bail Act. It is required, “before the discretion to refuse bail arises the court has to be satisfied that there are substantial grounds for believing that one or more of the matter described in section 9 (1) (a) to (g) are present. It is the existence of substantial grounds for the belief not the belief itself which is the crucial factor see R v Slough Justices; Exparte Duncun and another [1982]75 Cr. App. R 384; In re Fred Keating [1988] PNGLR 133.
   
5. Applicant has the right to be granted bail by virtue of section 6 of the Bail Act reinforced by the Constitution section 42 (6) but in the exercise of that discretion the court is directed to section 9 of the Bail Act; Re Thomas Markus [1999] PGNC 82; N1931 (15 September 1999) Discretion meaning that there must be facts provided upon which the discretion in law will be exercised. Here these are the following that the applicant has filed.
   
6. The Applicant’s affidavit dated the 12^th June 2018 does not give substantial reasons as to why he should be granted bail. The attachments to the affidavit make it clear that this court refused his earlier application on the basis that there was no evidence of peace and his safety with the others he was charged with. He now applies contending that he would be safe if he is to be resident at his wife’s village of Balabolo in Hoskins which is far away from Talasea and Minda village. This is saying yes he will not be safe if he is in Minda but will be safe if in Balabolo.That maybe so but there are no materials placed before and are part of the material before me stating that there is peace and reconciliation made already in the matter ending that he is unsafe that he will be well outside of the prison walls. There is no guarantee that he will live Balabolo and come out to his village at Minda or even here to Kimbe. Without evidence of any settlement of that matter it would be not protecting him in accordance with Section 9 (1) (e) of the Bail Act that he is released out on bail. The court will not be doing justice to let him out without that settlement of peace and reconciliation. Because his safety is not guaranteed until the matter is resolved between the parties. There is no substantial reason shown to allow him out on bail.
   
7. The affidavit attaches as annexure “A” and “B” summary of Facts together with the information which shows very serious and aggravating situation within Section 9 (1) (c) of the Bail Act not settled by the affidavit of the proposed guarantor of one Pius Ngava who is an uncle of his wife, who is his niece. He is not an independent person despite being a Catechist and even then he is at Mai and the intended place where applicant will reside is at Balabolo a different location altogether and therefore there is no real guarantee shown in the observance of bail and conditions flowing in the light of the gravity of the matter under Section 9 (1) (c) which remains substantial and the discretion to invoke has not been swayed by the material that the applicant has filed in this application satisfying what the court pointed out in its Judgement attached.
   
8. The next is Hubert Madi dated the 12^th June 2018 ward development committee how effective such as person would be in the light of the fact that peace and reconciliation has not been made out to settle the matter outstanding so as to alleviate what is set out by Section 9 (1) (c) of the Bail Act here.
   
9. The State objects to the application and invokes Section 9 (1) (c) (i) (ii) (iii) of the Bail Act as applicable here on the basis of which the material advances do not reasonably show that applicant will reappear from Bail. In any case on the basis of which bail should be refused.
   
10. I have considered the application on its own merit and am satisfied on reasonable grounds that on the material in support that the application should not be granted in the terms as applied. In so doing I am not bound by technical rules of evidence but on the information as it is available. Here these are the affidavit of the applicant and his two proposed guarantors including the annexure to his affidavit. Viewed together I am not swayed that bail should be granted particularly in view of the fact that the other guarantor is not a reputed guarantor of standing in the community and upon whose word bail should be granted. To accede will be not to guarantee the safety of the applicant in the light of the outstanding issue as to peace and reconciliation and his safety whilst out on bail even in Balabolo his wife’s village.
    
11. In my view this is insufficient to grant the application and accordingly the application is refused.
    

Orders accordingly.

________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitors : Lawyer for the Defendant