Wek v State [2021] PGNC 253; N9107 (3 September 2021)

N9107

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 102 OF 2021

In the matter of an Application for Bail pursuant to Sections 4 & 6 of the Bail Act Chapter 340 and Section 42 (6) of the Constitution

BETWEEN
BRIAN WEK
Applicant

AND
THE STATE
Respondent

Mt Hagen: Toliken, J
2021: 03^rd September

PRACTICE & PROCEDURE – Application for bail – Wilful murder – No presumptive right to bail – Exceptional circumstances need to be shown – Medical condition – Anaemia, generalized body aches and pain, and severe tenderness to soft tissues - Not exceptional circumstances for grant of bail – Applicant has no fixed address – Applicant unlikely to appear at trial – Refusal of bail necessary for Applicant’s own safety – Bail refused - Constitution, s 42(6); Bail Act Ch 340, s 9(1)(a)(c)(i)(e).

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:

T Kagl, for the Applicant
J Kesan, for the State

RULING

3^rd September 2021

1. TOLIKEN J: The Applicant was charged with wilful murder, an infraction against 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.
   

Background

2. The brief facts alleged against the Applicant are that on Saturday 29^th February 2020 between 6.00pm and 7.00pm the Applicant and another person were at the Animal Market, Pope’s Oval, Mt Hagen when they saw the deceased Rodney Gandi walking out of the Animal Market across the Okuk Highway and along Wahgi Parade heading for their home. They followed them to the section of the Highway next to the National Development Bank and the line of stores there. They caught up with the deceased and his friend and attacked the deceased. The deceased was knocked to the ground by the roadside and the Applicant chopped him on his head with an axe. The Applicant and his friend fled the scene when two men came running in response to the deceased’s friend’s calls for help. The deceased later died at the Mt. Hagen Provincial Hospital. The Applicant was later arrested and charged with wilful murder.
   
3. The Applicant had been remanded in the Police Cells in Mt. Hagen since his arrest apparently for his own safety as the deceased is the son of an officer at the Baisu Corrective Institution. He has been committed to stand trial.
   

The Law

4. Persons charged with wilful murder and treason have no presumptive right to bail under Section 42 (6) of the Constitution. However, they can still apply 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. But even if considerations under Section 9 are present the court still has the discretion to allow bail if it is of the view that the continued detention of an applicant is not justified. (Re Fred Keating [1983] PNGLR 133; Yasause v The State (2011) SC 1112).
   
5. On his part an applicant must 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))
   

Grounds for Bail

6. The Applicant cites his medical conditions – Malaria, Typhoid and Anaemia – as grounds for his application.

The Issue

7. What fall to be determined here then are:

(i) whether the Applicant has shown an exceptional ground or grounds to be granted bail; and
(ii) Whether grounds exist under Section 9 of the Bail Act for refusal of bail.

Supporting Evidence

8. In his supporting affidavit the Applicant deposed that he had been diagnosed with Malaria, Typhoid and Anaemia. He has been remanded at the police cells and he his afraid that he might die if he does not get proper treatment for his conditions.

9. He said that he will reside with his family at Baisu and will abide by all bail conditions should he be granted bail. He undertook to pay K1000 as cash surety. He nominated two guarantors namely John Kawa and Pastor Peter Lewa both of Kuta Village, Hagen Central. Both men vouched for the good character of the Applicant and that he was not a trouble-maker. While the Applicant will reside with his family at Baisu they undertook to ensure that he complies with his bail conditions. They pledged the sum of K200 each as sureties.

10. The applicant annexed a medical report by one A. Pama (Clinician) dated 14^th April 2021 which states that the Applicant is a known patient who had been diagnosed with Malaria, Typhoid and Anaemia. He was treated with antibiotics and antimalarials and was advised to have strict bed rest, avoid stressful situations and abstain from active duties (whatever that means). He was further advised to go back for a review if his symptoms persist. A. Pama does not state his or her qualifications nor does s/he state that he or she attended to the Applicant personally.

11. A further medical report dated 28/04/21 by Presley Kuma, a Rural Health Officer and Senior A&E/AOPD clinician purportedly on behalf of SMO Dr. McKup stated that the Applicant was seen at the Accident & Emergency Department on 26/03/20. He presented with severe upper quadrant pain radiating to the epigastric region and hotness toward neck associated with fainting episode. He was diagnosed with cholecystitis (inflammation of the gall bladder) and gastritis. He was put on IV fluids, antibiotics, analgesics and antacids. Because of his unstable condition he was admitted for a week and discharged on 12/01/21 with medications. A review on 19/01/21 showed that he still had symptoms.

12. The Applicant’s prognosis according to this report was that his condition is recurrent and becoming chronic. His condition is life threatening and he needs to be on regular medication otherwise he will face complications which may prove fatal.

13. Like the previous report, the author Presley Kuma does not state that he personally attended the Applicant. Apparently, he was writing for Dr. McKup, but whether Dr., McKup saw and examined the Applicant when he was presented is not clear from the report.

14. When this matter first came before me on 11^th June 2021, I noted the above reports were not current, hence I ordered that the Applicant be subjected to another medical examination. Dr. Warai, Senior Emergency/AOPD Registrar at the Mt. Hagen Provincial Hospital attended to the Applicant and swore an affidavit on 18^th June 2021 to which he annexed his report of 17^th June 2021.

15. Dr. Warai stated that the Applicant has a history of anaemia and of having been involved in a motor vehicle accident which caused severe injuries to his lower back. He personally attended and examined the Applicant who complained of back and abdominal pains. He was also having difficulty breathing due to severe chest pain. He had been bed ridden in the Police cells from generalized bodily aches and pain since his arrest and had lost his appetite as a result.

16. On examination he looked quite sick and moderately dehydrated and looked pink. All his vital measurements were normal. Dr. Warai further stated:

“Systemic examinations revealed he had severe tenderness around the right upper quadrant and left upper quadrant regions. There was no mass or enlarged organs. Also, he has severe back tenderness around the lumbar – sacral region, with guarding on palpations. Other systemic examinations were unremarkable.

All blood examinations are normal and within the normal range or parameters. Investigations through x-rays revealed he had clear lung markings with no bonny changes to the chest bones and the thoracic, lumbar and sacral bones.

He is suspected of having soft tissue injuries secondary to the blunt trauma he sustained during the motor vehicle accident and the physical assault sustained during the arrest. Therefore, this letter is to verify that he has severe blunt injuries to his liver, spleen and the kidneys with other soft tissues. He may require strict medical attention until such time he may fully recover.”

17. Dr. Warai annexed the Applicant’s x-rays and blood test results to his report.

18. Of the medical reports before me, I am unsure if I can rely on the reports of A. Pama and Jeffery Kuma. Both appear to be clinicians but not medical officers. Jeffery Kuma is a Rural Health Officer who holds a Bachelor Degree in Rural Health from the Divine Word University. A. Pama does not state his or her qualifications at all. Furthermore, it appears that neither of them physically examined the Applicant. Hence their diagnosis that the Applicant is suffering from Malaria, Typhoid, cholecystitis and gastritis, even if true, cannot be given much weight.

19. Only Dr. Warai physically examined the Applicant and I can accept his observations that the Applicant is suffering from anaemia, generalized body aches and pains, severe tenderness to soft tissues secondary to blunt trauma attributed to a motor vehicle accident that happened on 26/03/20.

20. Now, do these conditions constitute exceptional circumstances for which bail may be granted?

Whether Applicant’s Medical Conditions Are Exceptional Circumstances

21. Medical condition can be an exceptional circumstance for which bail can be granted to those charged with wilful murder providing that none of the grounds under Section 9 of the Bail Act or any other grounds prevent grant of bail. In Ati Wobiro & Ors v. The State; SCAPP 18, 19 & 20 of 2016 ( unreported judgment of 24^th of November 2016), Injia CJ cited cases where medical condition had been held to constitute exceptional circumstances and held that:

“The medical condition of an applicant may constitute “an exceptional circumstance” to warrant the grant of bail. But not every medical condition of an applicant may constitute “exceptional circumstances”. What must be shown is that the applicant’s medical condition must be serious enough to be life-threatening and such that incarceration is likely to have a deleterious effect on the applicant and could seriously endanger the applicant’s personal health and life. ...” (Underlining mine)

22. Conditions like hypertension or high blood pressure has been held to be an exceptional circumstance. (The State v Siminzi (2010) N4060; Pawa v The Independent State of Papua New Guinea (2009) N3580) However, in Simon Temo v The State (2021) N8870 (16 June 2021), I refused bail for the applicant there even though it was shown that he was suffering from hypertension among other conditions because I was of the view that his condition had not deteriorated to a life-threatening stage. Moreover, the condition can be managed through lifestyle changes and medication, and the medical evidence relied upon by the applicant were not current. His condition can be managed from within the gaol.

23. There I postulated the following: if an applicant’s medical condition is to amount to an exceptional circumstance, then it must be shown by relevant and current medical evidence that it has deteriorated to such an extent that the applicant’s life and health are in imminent danger without close monitoring and observation by a doctor or without the use of specialist medical equipment which would otherwise not be available in prison or any other place where the applicant is kept.

24. I expanded on these in Tumints Simon v The State; CR (AP) 188 of 2021(19 August 2021) when I said that in order to determine whether a medical condition can be considered as amounting to an exceptional circumstance, the court must ask itself the following questions:

(1) Has the applicant’s condition deteriorated to such an extent that his health and life are in grave danger if he were to remain in custody?
(2) Does he need constant and close observation and monitoring by a doctor?
(3) Is specialist medical equipment required to manage and treat the condition?
(4) Can the condition be managed and controlled by other means while in custody?
(5) How current is the medical evidence relied upon by the applicant?

25. So, has the Applicant discharged the above test? Can it been said on the balance that his conditions – anaemia, generalized body aches and pains and severe tenderness to soft tissues – constitute exceptional circumstances?

26. From the medical reports before me, particularly Dr. Warai’s report, I am not convinced that the Applicant’s conditions are life threatening and that they have progressed to such a state where continued incarceration will pose a real and imminent danger to his life. The motor vehicle accident, the effects of which, he is said to be suffering from happened over a year ago. The first two medical reports by Pama and Kuma were done on 14/04/21 and 28/04/21, well after the Applicant was arrested and subsequently charged on 08^th March 2021. This would have meant that the Applicant would have been taken in from the police cells for medical examination and treatment or that the authors visited him at the cells. However, that is not apparent from the reports.

27. In conclusion the Applicant has not shown that his medical conditions can be considered as constituting exceptional circumstances.

Whether Grounds Exist Under Section 9 Of the Bail Act for Refusal of Bail

28. Notwithstanding that, the State must still show beyond a reasonable doubt that one or more grounds under Section 9 of the Bail Act exist to justify a refusal of bail.

29. Apart from disputing that the Applicant has not shown exceptional circumstances, the State also opposed bail on several grounds under Section 9(1) (a) (c)(i) and (e) of the Bail Act – that is (a) the Applicant is unlikely to appear for his trial if granted bail, (b) the offence consisted of a serious assault and (c) it is necessary for his own safety that he be remanded in custody.

30. That the alleged offence consisted of a serious assault is beyond question. The State will therefore have to show that refusal of bail is justified on the other two grounds.

31. The State relied on the affidavit of the Arresting Officer Sergeant Patrick Tonwingo who deposed that the Applicant was on the run for until he was apprehended in a citizen arrest by the brother of the deceased. Sergeant Tonwingo strongly believes that the Applicant will definitely be killed by the deceased’s relatives if he were to be released on bail.

32. Furthermore, the Applicant is not a stable subsistence farmer. He does not live at Kuta Village or at his family block at Baisu. On the contrary he has no fixed address or home in the city. He moves around from one place to another living off other people at the Fishpond Settlement behind Pope’s Oval, and from proceeds from prostitution.

33. The Applicant and his guarantors deposed and it was submitted in his behalf that he will live with his family at Baisu. His guarantors undertook to ensure that he complies with bail conditions should he be granted bail. I am not sure how they can do this because they are living at Kuta which is on the fringes of the city – about 30 - 40 minutes drive from Baisu, if I may hazard a guess.

34. There is no evidence that the Applicant has lived with his family at their Baisu Block anytime recently immediately before the alleged offence or his arrest. I am led to believe that he had been living in the city all this time at no fixed address as deposed by Sergeant Tonwingo. No, I am not convinced that the Applicant will appear for his trial if he were to be granted bail.

35. But has the State shown that it is necessary to deny bail for the Applicant’s own safety? The Applicant was on the run for over a year after he allegedly killed the deceased until he was caught and apprehended by the deceased’s relatives, who, ought to be commended for exercising restraint by taking him to the police instead of taking the law into their own hands as invariably happens in cases like this. Would they exercise similar restraint if the Applicant were to be granted bail and will reside at his family block at Baisu, considering that the deceased’s father is a Correctional Officer at Baisu? In these circumstances it cannot be guaranteed that deceased’s relatives will not retaliate against the Appellant if he were to be granted bail. The Applicant has not shown that his people have paid bel kol, as is customary in this society to maintain peace between his tribesmen and the deceased’s. It is therefore necessary for the Applicant to be refused bail for his own safety.

36. Since the Applicant is concerned about his safety if he were to be remanded at Baisu and since he cannot be held at the police cells for any extended period, it would seem appropriate to remand him at the Barawagi Corrective Institution until such time his safety at Baisu can be guaranteed by the authorities there.

Conclusion/ Orders

37. In conclusion, the application is therefore refused. The Applicant is to remain in custody at the Barawagi Corrective Institution until the completion of his trial or until his safety at Baisu can be guaranteed or any threats to his safety there abate.

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