State v Makele [2019] PGNC 111; N7826 (26 April 2019)

N7826

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1352 & OF 2010
CR No.114 OF 2010

THE STATE

V

WALTER MAKELE & OTTO VARVAMA

Kimbe: Miviri J
2019: 26^th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Acquitted and Discharged – Medical assessment stable – safe release into society – S166 Constitution – Protection of Law – Release of both detainees.

Facts
Detainees detained in CIS pending medical clearance safe to be released into society.

Held
Protection of the Law
Powers under section 166 Constitution
Medical assessment safe stable to be released into society
Both Detainees released forthwith.

Cases Cited

Nil
Counsel:

A. Bray, for the State
D. Kari for the Defendant

RULING

26^th April, 2019

1. MIVIRI J: This is the Ruling in respect of both detainees detained by order of this court dated the 9^th December, 2015 in the case of Walter Makele. And in the case of Otto Varvama dated the 18^th June, 2015.
   

Orders

2. The orders read in the case of Walter Makele he be kept in custody to decide where he will be kept either at Lakiemata or Laloki Psychiatric Hospital. Though this court has discharged him on the charge of Wilful Murder and has kept in custody because he is of unsound mind.
   
3. The Court has made orders under Section 529 (2) of the Criminal Code pending the decision of the head of State or the Governor General of Papua New Guinea.
   
4. Section 529 (2) talks about General Rules applicable to Indictments so obviously that section does not empower the continued detention of the detainee Walter Makele.
   
5. He now has by the attachments to the affidavit dated the 26^th August, 2019 of Senior State Prosecutor Augustus Bray of the office of the Public Prosecutor medical report annexure “A” under hand of Doctor Losavati W. Daugunu Senior Specialist Medical Officer at the Laloki Psychiatric hospital stating that he is fit to be released into the community. That he is to continue his treatment but should he relapse to be brought into medical facility to seek help.
   
6. This report does not state that he is a threat to the community if released in his status presently. But it states that he is fit to be released. There is no reason medically to keep him in custody.
   
7. In the case of Otto Varvama he too has an order in similar terms dated the 18^th June 2015 from this court which orders that he is transferred to Laloki Psychiatric hospital as a medical patient for assessment of his status of mental capacity.
   
8. That has been done and annexure “B” of the affidavit of Senior State Prosecutor Augustus Bray of the office of the Public Prosecutor dated the 26^th April 2019 is the medical report by Doctor Losavati W. Daugunu Senior Specialist Medical Officer at the Laloki Psychiatric hospital who has examined the patient and has made this report dated the 27^th March, 2019 deposing that Otto Varvama is fit to plea and he is highly recommended to be released back to his family so that they can assist and take care of his health when the need arises.
   
9. The Order of this Court made the 18^th June, 2015 acquitted the detainee from custody on the charge of wilful murder. It means in law he has no other matter to hold him in custody.
   
10. The total effect is that by the powers of the Court under Section 166 of the Constitution, the Court will order the immediate release of both detainees from custody forthwith. Both will be released back into the care and custody of their respective families and to seek medical assistance and help should there be relapse. For the present the medical report in respect of both are favourable in their respective cases upon which this court orders their release from custody forthwith.
    

Orders Accordingly.

__________________________________________________________________Office of the Public Prosecutor : Lawyer for the State

Office of the Public Solicitor : Lawyer for the Defendant