Las v State [2023] PGNC 145; N10253 (15 May 2023)

N10253

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA No. 1007 OF 2022

STEWARD LAS

V

THE STATE

Waigani: Linge, AJ
2023: 15^th May

CRIMINAL LAW – Bail – Alleged murder pursuant to Section 300 (1)(a) of the Criminal Code – whether issue of exceptional circumstances apply - bail refused.

Cases Cited:
Fred Keating -v- The State [1983] PNGLR 133
Theo Yausase -v- The State [2011] PGSC 15
Kange -v- State [2016] PGNC 127; N6321

Counsel:
Mr. B. Popeu, for the Applicant
Mr. Wusik, for the State

DECISION ON BAIL APPLICATION

15^th May, 2023

1. LINGE AJ: A ruling on an application for bail by the accused Steward Las. The proceeding is still in the investigation stage. The offence for which the applicant is being investigated is murder.
   
2. The applicant is detained at the Bomana Correctional Institution since 16 December 2022. He will next appear for his committal hearing on the 29 May 2023.
   
3. The application is made pursuant to s.4 (1) (b) and s. 6 of the Bail Act and s.42 of the Constitution. The National Court is the bail authority in respect of this charge.
   

Submission by Appellant

4. The applicant relies on his own affidavit filed on the 19 December 2022 wherein he appended a copy of the Summary of Facts. His counsel submits that the Summary of Facts alone does not indicate use of weapon by the accused with intent to cause grievous bodily harm to the deceased.
   
5. In his bail application, the reasons he gives in seeking bail include:
   

(i) At all times he was the sole breadwinner of his family and relatives which includes a wife who is unemployed, and an infant, they are totally dependent on him.

(ii) He voluntarily surrendered to Police thus there is zero probability of escaping or evading criminal prosecution.

(iii) He is an active and dedicated Church member which through commitment and dedication appointed and ordained as the Church Musician of the Church of Jerusalem. That his as a Church Musician his service in needed for worship and praises. Also, he has never been subjected to any church censorship or disciplinary actions.

(iv) Protection of his guaranteed rights under the Constitution and as the co-accused he maintains his innocence.

(iv) The deceased, himself an accused, Onda Nurum come from allied tribes hence need to maintain peace. He says his release would enable him to meet the Compensation Demand as contained in the Peace Mediation & Compensation Demand Paper. He says custom dictates that Onda Nurum and he must meet half of the demand whilst other family members and the clansman and tribesman meet the other half of the demand.

He further says, if the Compensation Demand is not met, it will definitely escalate into tribal warfare or pay-back killing. That he should be released to meet the terms and conditions of the Peace Mediation & Compensation Demand paper.

Submission by Defence Counsel

6. Counsel relies on the following cases:
   

(a) Fred Keating -v- The State [1983] PGSC 14; [1983] PNGLR 133, the Supreme Court held:

(i) “An application for bail by a person charged with wilful murder is to be determined pursuant to section 9 of the Bail Act only, i.e. without reference to the interests of justice.”

(ii) “The grant or refusal of bail pursuant to section 9 of the Bail Act is discretionary in all cases other than wilful murder and treason.”

(iii) “Once one or more of the considerations in section 9 (1) are proven, bail should be refused unless the applicant shows cause why his detention in custody is not justified.”

(b) The Supreme Court in Theo Yasause -v- The State [2011] PGSC 15 held: “...in order to convince the Court to exercise its discretion in his favour, an applicant must show that exceptional circumstances exist which makes his continued detention unjustified.”

7. In Theo Yasause’s case, the Supreme Court refused bail on the basis that even though the reasons raised by him were relevant considerations, none of them considered alone or in conjunction with each other would amount to exceptional circumstances that make his continued detention unjustified.
   

Submission by State

8. The State objects to grant of bail on the following reasons/considerations under Section 9 of the Bail Act:

(1) Section 9 (1) (c)(i) – a serious assault;

The offences in which the applicant and his co-accused are charged with consist of a serious assault which led to the death of a 24 year old.

(2) Section 9 (1)(c)(ii) – a threat of violence to another person:

There was a threat of violence to the deceased.

(3) Section 9(1)(c)(iii) – having a possessing a firearm, imitation firearm, other offensive weapon or explosive:

The applicant co-accused used a timber and hit the deceased.

9. The State submits that the grounds raised by the applicant do not amount to exceptional circumstance.

10. In relation to the ground that the applicant is the sole breadwinner of his families and relatives. The State contends that this is a natural consequence brought upon him for what he has done. The sum effect is that his family will be affected. (Theo Yausase -v- The State [2011] PGSC 15) and Kange -v- State [2016] PGNC 127; N6321).

11. For the reason that he never has been subject to church censorship or disciplinary committee, is not good enough as he is one of the two accused in a murder case.

12. With respect to his reason of active role in the church as Church musician, it will be awkward to release the accused on bail to get back to the same church and ply his musician role in the very church led by the pastor whose first-born son is alleged to have been killed by the applicant.

13. The State submits that bail should be refused on the following reasons:

(a) The alleged offence is serious in that it took away a 24 years old young person’s life;

(b) There was a threat of violence to the deceased; and

(c) The co-accused of the applicant was in possession of a dangerous weapon namely Timber.

Consideration

14. The object of the Bail Act is to give effect first and foremost to s.42 (6) of the Constitution, liberty of person. Sections 4 (1) (b) and s. 6 of the Bail Act implements the Constitutional mandate which is couched in mandatory terms as, “a person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention and to acquittal or conviction unless the interest of justice otherwise require.” s.4 (1) (b) and s. 6 of the Bail Act

15. It is incumbent upon the bail authority to also consider the interest of justice question. The term “justice” denotes what is fair and just in a democratic society. Section 155 (4) required the Court “...to do justice in the circumstances of the case” and s.158 (2) provides “...the courts shall give paramount consideration to the dispensation of justice”.

16. Thus, interest of justice entails the Court exercising its discretionary power to take into account all matters relating to the case within the ambit, letter and intent of the law. The intent of the Bail Act is clear, and I must exercise the Court discretionary power taking all factors into consideration.

17. In Fred Keating -v- The State (supra) the Supreme Court held that an application for bail by a person charged with wilful murder is to be determined pursuant to section 9 of the Bail Act only. It follows that the Courts is not constrained and can consider the question of the interests of justice in a charge of murder.

18. The reasons the applicant gave for seeking bail are not exceptional circumstances. However, I still must consider it on the basis of the interests of justice.

19. In my view taking all factors into consideration, I consider the matter very crucial is the possible effect and impact of the accused going back to the community at Tete Settlement and to his local Church. How he would be received and whether he would be able to perform his musical Ministry given the father of the deceased is the local congregation, Pastor.

20. I also consider the objections raised by the State in relation to s.9, (1) (ii)threat of violence to the deceased; and s. 9 (1) (c) (iii) possession of dangerous weapons. I note that the co-accused of the applicant was in possession of a dangerous weapon namely a timber.

21. Based on the Summary of Facts the accused was not in possession of a dangerous weapon. I am not satisfied that s.9 objections are properly made out. As it is discretionary, I must still consider whether the applicant’s detention in custody is justified or not. To consider this I look at the Summary of Facts and on the face of it there is nothing that should persuade me to deny the application.

22. The Theo Yasause -v- The State case relates to an application for bail after conviction and the consideration there in my view cannot be equated to this application.

23. In Theo Yasause’s case, the Supreme Court refused bail on the basis that even though the reasons raised by him were relevant considerations, none of them considered alone or in conjunction with each other would amount to exceptional circumstances that make his continued detention unjustified.

24. It is my considered view that the applicant does not have to prove any exceptional circumstances to be allowed bail. He is entitled to bail in the ordinary sense. However, I consider his safety especially there is no way of knowing whether emotions have dissipated.

25. In my view there is a possibility of absconding given the fact that the deceased, co accused and the accused are allied tribes. Also, the possibility of payback is real. Protective custody at this stage is probably the proper thing to do in the interest of justice. His tribesmen can still proceed with raising funds for peace compensation. It does not require him to be there to make it happen.

25. The applicant has been on detention since 16 December 2022. Bail has not been sought until now. The National Court is the bail authority for purpose of this charge of murder pursuant to s.300(1)(a) of the Criminal Code.

26. In the end I refuse bail to the applicant.

__________________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State