Suai v State [2022] PGNC 450; N9992 (22 September 2022)

N9992

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA No. 790 OF 2022

BEVERN SUAI
Applicant

V
THE STATE
Respondent

Wewak: Miviri J
2022 : 22^nd September

CRIMINAL LAW – PRACTICE & PROCEDURE – Bail Application Section 3 & 4 Bail Act- Section 299 Wilful Murder CCA – S9 (1) © (i) (ii) (iii) & (e) Bail Act objection – no evidence against – reliance on Bail Act –S9 (1) (e) no evidence– bail refused
Facts
Accused is charged with wilful murder in that he discharged a firearm which killed the victim. He intended to kill the deceased and did kill him. He is applying for bail pending completion of investigation of the matter.

Held
Serious allegation of use of Firearm
Death of Deceased
Threats made against applicant.
No guaranteed breach of peace.
Application refused and accused remanded at Boram CIS.

Cases Cited
Re—Fred Keating [1988] PNGLR 133
Paul, The State v [1986] PNGLR 97
Lester v The State [2001] PGNC 148; N2044
Diawo, Re [1980] PNGLR 148

Counsel:
F.K. Popeu, for the State
M. Zurenuoc, for Applicant

RULING

22^nd September, 2022

1. MIVIRI J: This is the ruling on an application for bail by the applicant charged with Wilful murder pursuant to section 299 of the Code.
   
2. He is charged on information dated the 15^th day of September 2022 that he on the 29^th day of August 2022 at Kreer Compound Wewak in Papua New Guinea with intent to cause the death of another person namely Neo Sauba, unlawfully killed Neo Sauba.
   
3. The relevant facts on the information are that on Monday 29^th August 2022 at about 4.30pm to 5.00pm Bevern Suai now the applicant, was seen at Kreer Compound Wewak East Sepik Province. He is a policeman and was on board a Toyota Land Cruiser five door maroon in colour with other policemen. They were drunk. Exchange of insults triggered him to pursue the deceased with his drinking accomplices leading to him shooting the deceased using a pump action shot gun from which he died instantly.
   
4. It would appear that he was on a drinking spree with his accomplices, three in all begun earlier at noon that day. They were consuming whisky and spent the rest of the afternoon drinking at Caltex Market whilst sitting under shade trees located there. And there Senior Constable Tasisus Sebebmin accompanied by Constable Ralph Yiyina sighted them and urged them to leave the market and go back to Kreer Compound where they were residing. They left at once walking their way across the Kreer heights road in order to take the short cut track into Kreer Compound which was about 4.30pm.
   
5. Applicant drove out of the vehicle and drove out to the Mini Shopping Centre and upon sighting the deceased and friends crossing the road slowly drove passed them and swore at the deceased and his friends, “ kaikai kan bilong Mama bilong yupela”, which the deceased replied same. This triggered the applicant policeman to pursue the deceased and his friends further. With a pump action shot gun trailing them back into the compound following the short cut there. Deceased friends sighted applicant pursuing and ran further ahead. Deceased was responding to the applicant going back into the compound and continued walking. Deceased was advised to withdraw by a policeman there one Sergeant Ronald Sibinali who also advised the defendant applicant to withdraw. He did not and fired at the deceased shooting him through the back of his head through to his head. The deceased fell down and died instantly. He was rushed by Sergeant Ronald Sibinali to the hospital however was pronounced dead on arrival.
   
6. Yet another bystander was wounded from the discharge of the pallets with that same gun. On 12^th September 2022 applicant reported to CID and was arrested and charged for the offence. And has been detained since.
   
7. The application is made pursuant to sections 6 and 7 of the Bail Act. The facts here would fit into section 6 more than section 7, which would be more so in the case where proceedings are on foot in court and adjourned so that an application for bail can be made basing. But all are subjected to consideration under section 9 of the Bail Act. The facts of the present case would more particularly be covered by section 9 (1) (c) (i) (ii) (iii) and (e) because the allegation involves use of a firearm threat of violence and a serious assault. And the latter is relevant particularly with regard to the protection of the applicant and also prevention of further criminal offences directly from it.
   
8. It is discretionary and depended on the facts and circumstances and not by strict compliance with technical rules of evidence. And in this regard, there is no evidence in support of the application guaranteeing the appearance of the accused should he be granted bail. He has filed out a form titled Bail Rules Form detailing that he has been in custody over the matter since the 12^th September 2022. He states that he is asthmatic which is serious when he is confined. He seeks to rely on the East Sepik Provincial Health Authority office of the Curative Director health Service medical report by HEO Monalisa Kakul who is the health Extension Officer Internal Medicine. It does not state that his conditions will deteriorate if he is in custody. It states, Thus, please take it into consideration since his condition can be fatal when not seeking medical assistance on time.” There is no further evidence that the Boram CIS does not have medical facilities or the applicant will be denied that fact if remanded there further at Caltex Police Station Cell. He has been diagnosed with that disease since 2019 and has survived by taking Prednisolone and Salbutamol puffer when he develops symptoms. There is no evidence that this is denied when he is in custody.
   
9. He is accused but the situation outside of prison is not safe bearing from the excerpts of the face book that he has produced for and in support of his application attached to his affidavit dated the 21^st September 2022. And that is clear by the affidavit of the Arresting Officer which I will address shortly.
   
10. And that he has numerous threats and my safety is not guaranteed if I am remanded at Boram CIS. That the threats have come from the deceased relatives to be attacked at Boram CIS. This allegation that the threats are from the relatives of the deceased are not verified. Face book is a media platform open to all manner of life and walks so it must be verified that indeed that threat pointed out indeed is stemming from the relatives of the deceased. The addressee must be confirmed as being immediate relative of the deceased. As it is no real substance is made out that the life of the applicant is at risk in Boram CIS. In any case Boram CIS is manned by warders who no doubt will ensure his safety. How else do they keep convicted murderers, rapist and robbers in there if they cannot maintain security within? It is their mandated duty why else would the Courts continue to send prisoners remands up there if it were not safe within? In my view this is not made out and is without merit to grant bail as applied. He is safe and will continue to be safe when remanded. That is not granted out here. This ground is not made out and fails forthwith.
    
11. Whilst on bail he will be resident at Angoram Police Station. And Guarantor to his application is John Hasimani Wewak Police Station a police Inspector who gives contact number as 74875271. It is filled out in a form and must be verified in view of the role that Guarantors play in the management of bail and the appearance of a defendant on bail Section 19 Bail Act. Primarily because Guarantors are necessary to ensure that in serious cases as is the present, there is surety that the applicant will reappear from bail to see out the matter. It is necessary that there are proper materials placed before the Court to ensure that there indeed is guarantee of his appearance when the matter is recalled. I consider the filing out of a form not fulfilling section 19 of the Bail Act.
    
12. Further as here there is no retaliation over the matter. The safety of the Public as well as that of the applicant is guaranteed. In the light of the affidavit in reply by Tatamene Igomot Senior Constable of Police attached with the Criminal Investigation Division Police Station Wewak sworn of the 22^nd September 2022 states, she is the arresting officer. She has no objection to the application by the applicant for bail. But her concerns are that “...his safety. As to my observation, as the aftermath of this incident, youths from the said compound concern retaliated erupting into a confrontation with Police, damaging police vehicles and attempt made to rampage the Provincial Police headquarters. During the encounter from the firearms discharged attempting to disperse the aggressive youths, innocent citizens were wounded.
    
13. The Kreer Community did protest to the Management of Police Provincial Headquarters, upon which the investigation was conducted without delay, having Berven Suai arrested and charged has been desiring and convincing action that has able to settle such aggression tension.
    
14. Releasing Berven Suai on bail might or might not provoke or trigger the re-occurrence of such aggression disagreement which is my paramount concern. Therefore, that I seek this honourable Court to consider.”
    
15. In the way this is set out the probability is that this matter is not at rest. And will not be ignited by the Court releasing prisoner on bail. It must be assured that there is peace and tranquillity evidence produced before he is released. As it is there is nothing of substance to accede to the application on these basis. In my view it is not made out that there is peace and orderliness to release him as applied. There is nothing similar from the applicant most probably on the basis of the inspiration of section 9 (2) In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it. And indeed, a person is entitled to the full protection of the law especially a person in custody as the applicant present read together with section 42 (6) of the Constitution. But the public is also entitled to the protection of law. I am not satisfied that this is the case here for release of the applicant on bail on this basis. This ground is without merit and does not sustain in favour of the applicant. It will not advance the application of the applicant.
    
16. The State has not seriously objected to the application relying on the affidavit relevant particulars I have set out above. Which material falls into place with section 9 (1) (c) (i) (ii) (iii) and (e) of the bail Act that a firearm was used a threat of violence to another and a serious assault. Further that for the safety of the applicant he be remanded. That there is no safety in allowing him. Against which the applicant has made a bare assertion from the bar without evidence backing. This is a serious allegation of the discharge of a police issued pump action shot gun allegedly in the hands of a drunken police that took the life of a citizen. It cannot be a bare assertion from the bar table to release such a person into and out on bail. The materials in support must establish not without. Here the argument is without merit and the application is not made out.
    
17. It means the assertion in the information and invoking section 9 (2) of the Bail Act is not settled in favour of the applicant. It is use of a firearm that has caused serious assault and injury to the victim. And by the application of section 9 (1) (c) is grounds for the consideration of whether or not the application should be granted or not, because “before the discretion to refuse bail arises the court has to be satisfied that there are substantial grounds for believing that one or more of the matter described in section 9 (1) (a) to (g) are present It is the existence of substantial grounds for the belief not the belief itself which is the crucial factor see Rv. Slough Justices; Ex Parte Duncan and another [1982] 75 Cr. App. R384,” In Re—Fred Keating [1988] PNGLR 133.
    
18. I ask myself are there therefore substantial reasons or grounds present to refuse bail?
    
19. Applicant is a policeman who has in that position allegedly caused discharge of the police issued weapon that has culminated in the death of the deceased. It is a very serious offence and allegation against the applicant within the realm of section 9 (1) (c) of the bail Act. He has been in custody since the 12^th September 2022 which is only a week and three days since. And the crime was allegedly committed on the 29^th August 2022. The nature of the offence maybe and is a relevant consideration in the refusal to grant bail, Paul, The State v [1986] PNGLR 97 (7 April 1986) where arms were stolen as a result of a break enter and steal. Bail was refused. Also, the court needs also to consider the interests of society also to deal with offenders once before the courts and therefore stricter and higher terms maybe imposed, Lester v The State [2001] PGNC 148; N2044 (22 January 2001)
    
20. Diawo, Re [1980] PNGLR 148 (4 July 1980) was an appeal against the refusal of an application for bail made during the course of a trial. It hinged on the word “likely” that the applicant would not reappear if granted bail because he was a “kiap” and would influence State witnesses in the matter where he was charged with stealing as a servant K430 cash. But to curb original orders by the committal magistrate was that he would report to the Kagua Police detachment every Friday from his K100 cash bail to ensure that his case in the National court would not be affected by his non-appearance. The Supreme Court confirmed that order allowing him on bail and upholding the appeal ruling that there was no evidence that he was likely to breach his terms of bail. It was up to the State to bring that evidence which wasn’t the case and so the orders in favour of the applicant appellant allowing the appeal.
    
21. In the present there are substantial grounds to refuse bail. In the light of the fact that there is no independent evidence confirming indeed that guarantor John Hasimani would indeed be his guarantor whilst on bail. The mere filing of the Bail form does not satisfy nor does it discharge the balance in favour of the grant of the application. There is no independent persons because it is a serious offence viewed in the terms of section 9 (1) (c) (i) (ii) (iii) Bail Act. The material in aggregate relied upon by the applicant does not sustain in his favour. The application is refused.
    
22. Bail is refused. Applicant is remanded at CIS Boram forthwith. A remand warrant will issue forthwith.

Ordered accordingly.
______________________________________________________________
Public Prosecutor : Lawyer for the State
M. S. Wagambie Lawyers : Lawyer for the Defendant