Ba v State [2022] PGNC 195; N9608 (10 May 2022)

N9608

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA 545, 546 & 547 - OF 2022

In the matter of an Application for Bail Pursuant to Section 42 (6) of the Constitution and Section 4 and 6 of the Bail Act Chapter No. 340

BETWEEN:
KARAKA JONAH BA 545 OF 2022
MOLLY POVOGA BA 546 OF 2022 AND
JONAH OGA BA 547 OF 2022
Applicants

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Ganaii, AJ
2022: 09^th, 10^th May

BAIL – Application for Bail pending Committal - Charge of Manslaughter – Section 302 of the Criminal Code - Serious assault – Family Welfare and Proclaimed Innocence not proper grounds for seeking bail – Pending Investigations for over one year and eight months – Grounds for Refusing Bail not Exhaustive - Exercise of Discretion - Bail granted with Conditions

Cases Cited

Felix Kange v The State (2016) SC1530
Re Keating v the State (1983) SC257
Spencer Gerry v the State (2018) N7109
Yasause v The State SCAPP No 17 of 2014, SC1381

Laws cited

Constitution of PNG, Section 42
Bail Act, Sections 4, 6, 9
Bail Rules 2021

Counsel

Mr. J. Kolowe, for the Applicant
Ms. S. Suwae, for the State

RULING ON AN APPLICATION FOR BAIL

10^th May, 2022

1. GANAII AJ: The three applicants are charged with one count each of manslaughter contrary to section 302 of the Criminal Code. The maximum penalty for the offence of Manslaughter is imprisonment for life.

Allegations

2. The brief allegations are that on the 01^st of September 2020, the applicant Jonah Oga, who is the owner of a faulty motorized dingy and being aware of that lended it to the applicants Molly Pogova and Karaka Jonah to use for fishing at Sirinumu dam. In the boat at that time were the applicants Molly Pogova who was an inexperienced skipper and Karaka Jonah with her eight-month-old baby. Both were fishing and as they tried to start the motor to move the dingy to another spot in the lake, the motor failed to start. They shifted the gear and continued to try to start the motor. As the motor started, the dingy suddenly went into motion causing the applicants and the baby to fall into the lake. The motorized dingy sped off, spun around and headed back in the direction of the applicants and the baby who were trying to stay afloat. Upon realizing that the dingy was heading their way, the applicants held the baby and dived into the water in their efforts to avoid being hit by the dingy. The dingy approached them and the propeller of the motor cut the face and head of the baby. The baby was hospitalized and later succumbed to the injuries and died. The deceased child’s father laid a criminal complaint against the applicants.

Grounds for Seeking Bail

3. The applicants formally applied for bail relying on Form 1 of the Bail Rules 2021. They all denied involvement by raising the defence of accident. One of the proposed guarantors for the applicant Karaka Jonah, Elder Kerry Ningi of Nafoka SDA church declared that the applicant Karaka Jonah has a young son attending primary school and he needs her. Her release on bail will allow her to take care of him. The grounds relied on therefore are innocence and family welfare for one applicant.

4. Other matters for consideration are that the applicants undertake to pay cash bail in the amount of K1, 000 and they have each undertaken to reside at their addresses made known to the Court. Each of the applicants provided details of their nominated guarantors. The nominated guarantors have made appropriate declarations in Form 1.

Other Submissions by the Applicants’ Lawyer

5. Mr. Kolowe informed the court of the following: that since the alleged offence occurred on the 01^st of September 2020, investigations have been pending for over one year and eight months to date. The applicants’ committal matters will return to court on the 16^th of May 2022 for the Police to inform the Court on the status of the Police Hand Up Brief.

6. Mr. Kolowe further informed the Court that the applicants were initially granted bail by the police. At that initial stage, Police did not object to bail. Mr. Kolowe also informed the Court that when the applicants appeared at the Committal Court, the Magistrate remanded them in custody after reviewing bail. However, there were no written reasons for refusal to grant fresh bail thereafter.

State’s Objection

7. In this instant application, State is objecting to bail on the basis that the applicants are charged with a very serious offence where a serious assault is an element of that offence and is a ground under section 9 (1) (c) of the Bail Act. State responded that the grounds of family welfare and proclaimed innocence that the applicants rely on for seeking bail are not proper. The applicants’ incarceration for a charge of Manslaughter is a natural consequence of being arrested and charged for a serious offence. State relied on the case laws of Theo Yasause v The State SCAPP No 17 of 2014, SC1381 (11th September 2014) followed by Felix Kange v The State (2016) SC1530.

8. The Police Informant Detective Senior Constable Jimmy Baiyo of Gordon Police Station filed an affidavit deposing that the applicants are charged with a serious offence and on that basis bail should be refused. No other grounds of objection such as likelihood of interference and abscondment were advanced by the State.

Application

9. In this case, the only two grounds relied on are family welfare and proclaimed innocence. The court is guided by the pronouncement in the Supreme Court case of Yasause and Kange (supra) that family welfare and proclaimed innocence are not proper grounds for seeking bail. I am not satisfied that proper grounds for seeking bail have been established.

10. I am satisfied on the evidence that the acts constituting the offence in respect to which the applicants are in custody for, namely a serious assault, come within section 9 (1) (c) of the Bail Act. I am mindful also that the Statement of Facts show that the assault on the child leading to death, was not a result of any direct actions of the applicants. Rather, the facts show that as the motorized dingy spun around and headed in the direction of the applicants and the deceased child, they dived under water to prevent being hit but the child was hit.

11. The right to bail is automatic and available at all times. It is guaranteed by section 42 (6) of the Constitution. Section 9 of the Bail Act sets out the criteria for refusing bail. In the case of Re-Bail Application, Fred Keating v the State (1983) SC257, followed in Spencer Gerry v the State (2018) N 7109, the Supreme Court said:

“When considering the grant or refusal of bail ... the courts and other bail authorities are to be guided generally by S9. But whilst the Bail Act is a complete code in dealing with the grant or refusal of bail, by S3 in matters other than wilful murder or treason, the bail authority may still have to consider the question of the interest of justice. This may involve considerations other than the criteria for refusing bail as established in this section.” (Emphasis mine).

12. The Supreme Court also held that the existence of any of the factors set out in section 9 of the Bail Act does not automatically operate as a bar to the grant of bail. The Court has the discretion to decide whether to grant bail, having regard to the particular circumstance of each case and in the interests of justice.

13. Apart from the one ground of objection raised by the State, that is the seriousness of the offence and presence of the element of a serious assault, there are no further grounds relied on by the State in their objection to bail. There is therefore, no reason to find that the applicants will not cooperate with the Police in the course of Police investigations and prosecution of the matter, or that they are likely to interfere with State witnesses and are likely to abscond from bail.

14. A further consideration is one concerning the Court’s query on whether the Police Arresting Officer was aware of the initial grant of bail by the Police. The Court queried at to what the Arresting Officer’s position to bail was at that time. The State however, did not have any instructions to respond to this query and the Court was not properly assisted as to why the Police is now objecting to bail when in the first place they allowed bail.

15. Also, where Mr. Kolowe and the State Prosecutor had not provided any evidence of the Magistrate’s recorded reasons for refusal to grant bail at the District Court, this Court is again not properly assisted as to whether among others, the issue of ‘change in circumstance’ is a necessary consideration in this instant application for bail.

16. Whilst investigations are still pending, and in light of the court’s comments above, I am of the view that the applicants are not flight risks, they are not likely to interfere with State witnesses and that they are not likely to foil investigations which had been slow or is pending for at least over a year and eight months now. In this circumstance the court is inclined to grant bail and will do so with the imposition of stringent bail conditions. These conditions are aimed at ensuring that there are no interfere with the police investigations and prosecutions of the matters and that the applicants will appear in court as and when they are called until and when their matters are fully dealt with by a court of competent jurisdiction.

Conclusion

17. For the above reasons, the application for bail for all the three applicants is granted with stringent conditions.

Order

18. The court makes the following orders on bail:

1. Bail is granted in the sum of K1,000 each for all the three applicants Karaka Jonah, Molly Povoga and Jonah Oga.
   
2. All three applicants Karaka Jonah, Molly Povoga and Jonah Oga are to reside at their known addresses namely:
   
   1. Applicant Karaka Jonah at Bausaka Island, Sirinumu, Sogeri, Central Province
      
   2. Applicant Molly Tovogo at Boda Village, Bereadabu Ward 12, Koiari LLG, Central Province and
      
   3. Applicant Jonah Oga at Bausaka Island, Sirinumu, Sogeri, Central Province
      
3. All three applicants Karaka Jonah, Molly Povoga and Jonah Oga are not to leave the National Capital District or Central Province without the leave of Court
   
4. All three applicants Karaka Jonah, Molly Povoga and Jonah Oga are not to interfere with State witnesses
   
5. All three applicants Karaka Jonah, Molly Povoga and Jonah Oga are to attend to their cases and appear in court as and when their cases are called
   
6. All three applicants Karaka Jonah, Molly Povoga and Jonah Oga are to report to the National Court Registry every Mondays between the hours of 9:30 am and 3:30 pm
   
7. All three applicants Karaka Jonah, Molly Povoga and Jonah Oga are not to commit any offence including any summary offences whilst on bail
   
8. For the three applicants, the following persons are appointed as their nominated guarantors
   
   1. Karaka Jonah – Mr. Kerry Ningi, Church Elder and Mr. Marea Sarua, Ward Counsellor
      
   2. Molly Tovoga – Mr. Geno Varua, Ward Counsellor and Mr. Titus Pameko, Eight Mile Village Court Magistrate and
      
   3. Jonah Ogi – Mr. Kerry Ningi Church Elder and Mr. Marea Sarua, Ward Counsellor.
      
9. The guarantors shall each pledge a surety sum of K500 each for each of three applicants and shall sign certificates of guarantors.
   

Bail orders accordingly.
________________________________________________________________
Public Solicitor: Lawyers for the three Applicants
Public Prosecutor: Lawyers for the Respondent