N7316

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 91 OF 2018

THE STATE

V

VALENTINE LOGA

Kimbe: Miviri AJ
2018: 21st June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application – Wilful Murder s299 CCA –  student – grounds under section 9 (1) (c) (i)(ii)(iii)& S9 (e) Bail act – threats of violence – offensive and dangerous weapon used – Bail refused.
Facts
The accused with others stoned and cut the deceased with bush knives killing him.

Held
Serious assault
Dangerous weapons used
Applicant’s safety not guaranteed
Guarantor’s not independent persons
Bail refused

Cases:
Re-Fred Keating [1988] PNGLR 133, 
Counsel:

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

RULING
22nd June, 2018
1.	MIVIRI AJ: This is the ruling on an application for bail made by the applicant remanded in custody who is charged with wilful murder under Section 299 (1) of the Criminal Code. 

2.	Information laid dated the 11th September 2017 charges that on the 9th June 2017 at Bamba village on the main road, Valentine Loga of Liapo Talasea whilst in the company of others wilfully murdered Charles Gorea.

Facts 

3.	On the 9th June 2017 the applicant was one of 6 boys who chased one Charles Gorea  calling out kill him, kill him, and stoned him causing him to fall as a result where they cut him with bush knives, he was rushed to the hospital but died. Applicant is allegedly one of the persons who stoned the deceased and aided and abetted the killing.

Bail Application

4.	The applicant has invoked the provisions of the Bail Act Section 6 and Section 42 (6) of the Constitution for bail pending trial.

Constitution Section 42 (6) right to bail

5.	Section 42(6) of the Constitution basically gives the right to bail from arrest or detention to all offences excluding wilful murder or treason. And this is available to the defendants applicants from arrest detention right down to acquittal or conviction unless the interest of Justice otherwise requires.

Section 6 Bail Act

6.	Section 6 of the Bail Act enforces this in allowing bail to be applied for at any time after arrest and detention with the exception of offences under Section 4 which are the exclusive prerogative of the National and the Supreme Court only. In so doing the court shall grant or refuse bail in accordance with Section 9. 

7.	And Section 9 is in these terms:

	“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 is unlikely to appear at his trial if granted bail; 
(b) 	that the offence with which the person has been charged was committed whilst the person was on bail; 
(c) 	that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist 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;
(e) 	it is necessary for the person’s own protection for him to be in custody;
(f) 	that the person is likely to interfere with witnesses or the person who instituted the proceedings;
(g) 	that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;
(h) 	that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;
(i) 	that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody;
(j) 	that the alleged offence is one of breach of parole.
(2) 	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.
(3) 	For the purposes of Subsection (1) (i), “narcotic drug” has the meaning given to it in the Customs Act 1951.”

8.	 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 Rv. Slough Justices; Ex Parte Duncan and Another [1982] 75 Cr. App. R 384” In Re-Fred Keating [1988] PNGLR 133.

Issue

9.	Are there substantial grounds to refuse the application for bail?
Application of the law to facts

10.	The information which is available to determine this application is that applicant is a student at Talasea High School P. O. Box 826 Kimbe and attaches a proforma titled Transfer Certificate with his name inscribed as being granted Transfer to another School. It is a copy attached to the application with purportedly the seal of the school and a headmaster’s signature. It is dated the 8th February 2018. There is no other school where he is being transferred to so that his movement is tracked from the initial school to the new. The transfer of the applicant from his old school to a new school is not genuine. Because one does not leave a school on transfer without confirming where one is going to. Learning at School is not off and on as and when one chooses as here. Subjects are taught following a curriculum which runs in a calendar year. What the applicant is contending is that he will get transfer wait around outside and look for a school. On that basis I determine that what he has placed before court is not reasonable to be considered as the basis to allow him out on bail.

11.	The reasons for transfer are parental request which is not the same as contending his safety and movement to a new location for school. He is moving because there is still the threat of violence upon him and breach of peace emanating. By itself is a basis for refusal of bail under section 9 (1) (e), it is necessary for his protection that he stays in custody. Which is reasonable and upon which his application falls short to be granted bail.

12.	Both guarantors named nominated by the applicant in his affidavit are John Rova and Joe Lavu who is ward 8 Councillor where applicant will reside. But the affidavits are not of this two and no reasons have been advanced as to why a different set of affidavits is proposed but not nominated by the applicant.

13.	The affidavits of the proposed guarantors are different from that of the applicant. The first is Charles Mone who has filed an affidavit and Mathias Loi. They are the guarantors proposed to release the applicant on bail. And ought to be fixed both from the applicant and to whom he is nominating as his guarantors. 

14.	In Court applicant says he relies on the affidavit of both Charles Mone dated 9th April 2018 and Mathias Loi dated 9th April 18 as his guarantors. The former is employed with Provincial Health Authority in Kimbe and is from the same village as applicant. The latter is Vice President of Talasea LLG and knows the parents of the applicant well. By this both guarantors are not independent.

15.	It is important that this is so as in the facts in the information attached as annexure “A” of his affidavit one of the persons Alex Bulo was allegedly involved in the initial attack with him was also killed as a result. It makes the offence serious because there are two deaths.
State objection

16.	The State has objected to bail relying on Section 9 (1) (c) (i) (ii) (iii) of the Bail Act that there is threat and use of violence here by the use of the stones that were thrown at the deceased including the use of bush knives leading to death. That the others who were also involved are still at large.

17.	The allegation is against youth from Dire or those who are from Dire by those who are from Liapo and it is important that there is safety and security guaranteed by independent persons which is not the case here in my view. Yes the applicant may be 17 years old but the allegations are very serious and ought to have proper material for release. I am not satisfied on reasonable grounds that the materials that he has filed are substantive to release him out on bail. 

18.	I am not bound by technical rules of evidence but by the information before me in support of the application the State’s contention of section 9 (1) (c) (i) (ii) (iii)  and 9  (e ) of the Bail Act applicable here have not been shown to the contrary by the applicant to invoke grant of bail. Accordingly I uphold the State’s contention and refuse bail on these basis contended. 

19.	Bail s refused
Orders accordingly.

__________________________________________________________________
Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Applicant