N9105

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 119 OF 2021

In the matter of an Application for Bail pursuant to section 6 of the Bail Act Chapter 340 and Section 42 (6) of the Constitution

BETWEEN
SEDRICK MEL KOPUN
Applicant

AND
THE STATE
Respondent

Mt Hagen:  Toliken, J
2021:  19th August

PRACTICE & PROCEDURE – Application for bail – Wilful murder – No presumptive right to bail – Exceptional circumstances need to be shown – Education – Whether exceptional circumstance for grant of bail – Constitution, s 42(6); Bail Act, ss 4, 6, 9.

Cases Cited

Re Fred Keating [1983] PNGLR 133
Rolf Schubert v The State [1978] PNGLR 394
Maraga v The State (2010) SC1573
Yasause v The State (2011) SC1112
The State v Siminzi (2010) N4060 
Pawa v The Independent State of Papua New Guinea (2009) N3580

Counsel

E Wurr, for the Applicant
J Kesan, for the State

RULING 

19th August, 2021

1.	TOLIKEN J: 	The Applicant was charged with wilful murder, contrary Section 299 of the Criminal Code. He applied for bail pursuant to Section 42(6) of the Constitution and Sections 4 and 6 of the Bail Act. 

2.	The brief facts alleged against the Applicant are that on 29th March 2020, the Applicant and his two brothers, Geleng Kopun and Kapi Kopun attacked the deceased John Humar with a bush knife. The deceased and his brothers Kisper Humar Aure and Humar Kapak were returning home from the river after bathing early that morning. It so happened that the deceased was assaulted by one of the Applicant’s brothers the previous day and the parties were to sort out this issue that afternoon with village leaders.

3.	Around 4.00 – 5.00 p.m. the Applicant and his brothers came down calling and shouting for the deceased. Hearing this the deceased ran down followed by his two brothers. The Applicant and his brothers pursued them and when they caught up with them, the Applicant took out his knife and chopped off the deceased’s left toes and then retreated. Geleng Kopun came forward and slashed the deceased on the head. The deceased fell into a drain. After chopping the deceased the Applicant and his brothers fled the scene. The deceased was rushed to Kudjip General Hospital and later transferred to the Mt Hagen Provincial Hospital but succumbed to his injuries.

4.	Persons charged with wilful murder and treason have no right to the presumption to bail accorded under Section 42 (6) of the Constitution. This, however, does not preclude such persons from applying for bail under Sections 4 and 6 of the Bail Act in which case the considerations under Section 9 of the Bail Act for which bail may be refused will apply. (Re Fred Keating [1983] PNGLR 133; Yasause v The State (2011) SC 1112).

5.	The onus is on such an applicant to show that there are exceptional circumstances that warrant the grant of bail. If the State opposes bail, it should establish that one or more of the grounds in Section 9(1) of the Bail Act apply. (Rolf Schubert v The State [1978] PNGLR 394; Maraga v The State (2010) SC1573; Yasause v The State (supra)).

6.	It is, however, trite law that even if the State has shown the existence of one or more ground under Section 9 of the Bail Act to warrant a refusal of bail, the court still has the discretion to grant bail if it is of the view that the continued detention of an applicant is not justified. (See Re Keating (supra.)

7.	What falls to be determined here then is whether the Applicant has shown an exceptional ground or grounds to be granted bail or that there a no grounds to refuse him bail under Section 9 of the Bail Act.

8.	The Applicant’s reason for his application is that he is a student. 

9.	The Applicant is 20 years old and was a student at Nondugl Secondary School at the time of the offence. This is confirmed by the Principal of Nondugl Secondary School Mr. Kup Tom.

10.	In my opinion education may be an exceptional circumstance for which bail may be granted to one who has been charged with wilful murder. This will, however, depend on various factors including the age of the applicant and the circumstances under which the alleged offence was committed including the applicant’s alleged degree of participation where he is a co-accused. Where the applicant is a juvenile, he may have a better prospect of being granted bail but then again, that will depend on the circumstances of each case.

11.	The Applicant here is not a juvenile. He is 20 years old but still is attending Secondary School. That, however, does not in itself constitute an exceptional circumstance. Students who commit serious offences such as wilful murder have to accept that they will lose their liberty and hence they must keep out of trouble.

12.	The State does not oppose bail and while the Applicant’s reason for his application may not entirely satisfy the test, I feel inclined to grant bail. If bail were opposed under one of the grounds in Section 9 of the Bail Act, I would not definitely be so inclined.

13.	I will grant the application and grant bail to the Applicant with the following conditions:

1.	He shall pay a cash surety of K1000.00.

2.	He shall not interfere with State witnesses or contact them in any manner whatsoever.

3.	He shall not leave the Jiwaka Province without the leave of the National Court at Mt. Hagen.

4.	He shall, while on bail, reside with his family at Bekpe Village, Minj, Jiwaka Province.

5.	He shall report to the Clerk of Court at Minj District Court fortnightly on Fridays any time between the hours of 9.30am, and 3.00p.m.

6.	He shall appear for his committal proceedings at Minj District Court at such times ordered by the District Court.

7.	His nominated guarantors namely, Pastor Andrew Tokam of EBC Church, Bepke Village, Minj, Jiwaka Province, and Samuel Chris Tombil, of Kopung Village, Minj, Jiwaka Province are approved and they shall each pay cash sureties of K500.00.

Ordered accordingly.
________________________________________________________________
L B Mamu, Public Solicitor: Lawyers for the Applicant
P Kaluwin, Public Prosecutor: Lawyers for the State