State v Madiring [2019] PGNC 41; N7737 (4 March 2019)

N7737

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 36 & 37 OF 2019

THE STATE
Respondent

V
AUGUSTINE MADIRING
&
BENEDICT LEBA
Applicants

Kokopo: Susame, AJ
2019: 01 March

CRIMINAL LAW- bail application – offence –attempt murder – bail act – s 9 (1) considerations – consideration in s 9(1)(c) present – discretion still available for grant of bail – presumptions in ss 37(4) and 46 (6) constitution favor the applicants – bail granted with conditions

Cases Cited
Re: Application for Bail by Paul Lois Kysley [1980] PNGLR36
Re Heman Kagl Diawo [1980] PNGLR 148
Fred Keating v The State [1983] PNGLR 133.

Counsel

Miss. Batil, for the Respondent
Mr. Paisat, for the Applicants

RULING ON BAIL APPLICATION

04 March, 2019

1. SUSAME, AJ: The applicants are charged with the offence of attempt murder pursuant to s 304 of the Criminal Code Act.
   
2. Application was moved pursuant to ss.6, 9, 18 & 19 of the Bail Act and s42(6) of the Constitution.
   
3. Applicants deposed separate affidavits dated 25 February 2019 stating their reasons. Each applicant nominated two guarantors who swore separate affidavits dated 21 February 2019.

Law

4. For all offences, except treason or wilful murder bail is guaranteed under s42(6) of the Constitution. That constitutional provision avails bail to all persons charged with all offences except those charged with treason and willful murder.
   
5. That right is regulated by the Bail Act. Section 9 of the Act sets down considerations bail should not be refused unless satisfied on reasonable grounds if one or more of the considerations therein are present. Section 9 in my view gives prominence to s42 (6) of the Constitution. Section 46(6) provision sets a presumption in favour of the applicant or accused that he or she is entitled to bail at all times unless interest of justice otherwise requires. It is because of s46 (6) the law places the onus on the State for justifying continuous detention of an accused pending trial. (Re: Application for Bail by Paul Lois Kysley [1980] PNGLR36 & Re Heman Kagl Diawo [1980] PNGLR 148).
   
6. If one of the consideration in s 9 is present it does not necessarily mean bail must be refused. Bail authority always has the discretion to grant bail (Fred Keating v The State [1983] PNGLR 133.

Ruling on Application

7. Applicants’ case is currently being processed through the committal track in the District Court in Kokopo, East New Britain Province.
   
8. I have read the applicants affidavits. Except for applicant Benedict Leba one of the reasons they are asking court to release them on bail is because of their denial of the alleged offence. Benedict Leba’s other reason is that he is concerned about losing his new job with Internal Revenue Commission (IRC) which will in turn affect his wife and children and extended family who stand as beneficiaries.
   
9. I have heard reasons replied on by Miss. Batil in opposing bail. The only consideration that is present is in sub-paragraph (c) of section 9(1) that offence is one that consists of serious assault, and threats of violence to another person and that a bush knife, an offensive weapon was used.
   
10. The other reason relied on is that applicants should be detained until police investigators complete the committal files. The other reasons are contained in Senior Sergeant Aiyofa Faregere’s undated affidavit. In paragraph 7 of his affidavit he states his other reason is for the applicant’s own personal protection. That consideration comes under s 9 (1)(e).
    
11. The argument that applicants should remain in custody pending completion of the committal files does not come within s9 considerations. Therefore, that argument is dismissed.
    
12. In respect of applicant’s own safety there are no reports of continuous or imminent threats on the applicants’ lives and that it is for their own protection they continue to be in custody. That consideration has not been established.
    
13. I should refuse bail on the only established ground alluded to above. But, there is still discretion to grant bail by the authority of Fred Keating (supra). Should I exercise that discretion?
    
14. Attempt murder is a serious crime. There was a mob attack of the complainant in the night. Complainant was severely slashed with a knife. This was over some allegation of incestuous relationship complainant was having with a relative.
    
15. I do agree as it was also argued by Miss. Batil that for an accused to be separated from his or her family or job and taken into custody is a natural consequence of breaking the law. That said though, constitutional consideration of presumption of innocence is still in the applicant’s favour. [s 37(4)]. At this stage they are innocent until proven otherwise.
    
16. Both applicants are married and have wives and children to look after. Benedict has a job which is important for him and his family. I do not think their continued detention is reasonable and just in the circumstances.
    
17. In the exercise of my discretion applicants are granted bail. There has not been any objection to the nominated guarantors. They are approved by the court as guarantors for both applicants.
    
18. The orders of the court are as follows:
    
    1. Applicants shall pay cash bail of K1000.00 each forthwith,
    2. Applicants shall report to Clerk of Court District Court, Kokopo on Mondays every two weeks between 9.00 am and 3.00 pm and sign in Bail Reporting Register kept at the Registry.
    3. Applicants are restrained from consuming all forms of alcohol while out on bail
    4. Applicants are restrained from leaving ENBP at any time without the expressed approval from this court.
    5. Applicants are to maintain peace and order in the community
    6. Applicants are restrained from interfering with any potential witnesses for the State
    7. Their guarantors shall undertake to owe and pay to the State the sum of K300.00 each if applicants fail to comply with any or all of the bail conditions.
    8. The above conditions are subject to review if circumstances change.

_________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused