Akoa v State [2023] PGNC 167; N10333 (13 June 2023)

N10333

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 240 OF 2023

HARLEY AKOA

V

THE STATE

Waigani: Linge, AJ
2023: 13^th June

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:
Nil

Counsel:

Mr. Friedrich Kirriwom, for the Applicant
Mr. Stefan Wusik, for the State

BAIL

13^th June, 2023

1. LINGE AJ: The applicant is charged with one (1) count of murder in contravention of s.300 (1) of the Criminal Code. He is currently being held at the Boroko Police Cell since the 6 June 2023.
   
2. The National Court is the Bail authority for categories of cases including murder pursuant to s.4 of the Bail Act.
   

3. The applicant invokes the constitutional provision of s.42(6) of the Constitution in this application. Section 42 (6) of the Constitution entitles a persons arrested or detained for an offence (other than treason or wilful murder) to bail unless the interest of justice otherwise requires.

4. To facilitate this application the accused duly filed the requisite Form 1 and an affidavit. The case investigation officer also filed an affidavit deposing that he does not object to granting of bail to the accused.

5. The accused lists the following grounds for seeking the grant of bail:

(i) Expressing his right to bail pending completion of the case contrary to s.37 of the Constitution
(ii) He is a divorced father of a 3-year daughter.

(iii) The child although living with grandparents, rellies on him for her sustenance.

(iv) Action of police in detaining him is based on unsubstantiated claim by a person who was with the deceased at the material time as being distasteful and lacking in investigative abilities by police.

(v) It was a desperate act by the last person who was with the deceased to frame him for something he denies.

6. The State objects to the grant of bail and had filed a Form 3. The State’s objection is on the basis of Section 9 (1) (c) (i), (ii) and (iii) of Bail Act. These considerations are:

(1) Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one of the following considerations:-

(c) that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consists of –

(i) a serious assault; or

(ii) a threat of violence to another person; or

(iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive;

7. Mr. Kirriwom for the applicant argues that the applicant is entitled to bail pursuant to Section 42 (6) of the Constitution.

8. He also submits that in relation to matters covered under Section 9 of the Bail Act, these are grounds in the general purview of the Court for its consideration. Thus, the State’s reliance on Section 9 is no objection at all.

9. Here the grounds for seeking bail are not peculiar to the applicant. Ground1 is merely expressing a right. Grounds 2 and 3 are ordinary consequences of detention for alleged commission of an offence. Ground 4 and 5 pertains to substantive issues of guilt or innocence for determination at trial.
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10. I find no compelling grounds raised by the accused in support of his bail application. However, it is incumbent upon me as a bail authority in terms of s.3 of the Bail Act to consider and to give effect to Section 42 (6) of the Constitution. It provides that a person arrested or detained for an offence (other than treason or wilful murder ...) is entitled to bail at all times from arrest or detention and to acquittal or conviction.

11. Simply, s.42 (6) of the Constitution entitles the accused to bail at all times unless the interest of justice otherwise requires. To my mind, the critical consideration is interest of justice. This entails the Court to use its discretion. In that regard the Court must take into account any special grounds or circumstances the applicant relies on and the objection by the State and weigh these on the premise of where the interest of justice lies.

12. The accused is charged with the serious crime of murder. A life has been lost and investigation is still being undertaken. The law entitles him for bail however this does not affect the unfettered discretion of the Court to consider what is in the interest of justice and I conclude that this does not favour the granting of bail.

13. I therefore refuse bail.

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