Doga v The Independent State of Papua New Guinea [2023] PGNC 87; N10191 (13 March 2023)

N10191

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 87 OF 2023

BETWEEN:

ANDREW KARUKA DOGA

- Applicant-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

-Respondent-

Waigani: Tamade AJ

2023: 10^th and 13^th March

CRIMINAL LAW – bail application – applicant and victim were involved in a drunken brawl – offence of manslaughter – Criminal Code – Section 302 – objection to applicant’s guarantor as he is his brother – guarantor should be a neutral person – family suffering should not be a ground for bail – Bail Act – Section 9 – Section 9 considerations exist – the offence consist of a serious assault – a threat of violence to another person – bail refused

Cases Cited:

Rose Yamaen v The State [1988-1989] PNGLR 118
Re Herman Kagle Diawo [1980] PNGLR 48
The State v Tohian [1990] PNGLR 173
Keating v The State [1983] PNGLR 133
Yasause v The State [2011] PGSC 15
Maru and Oa v The State [2001] PGNC 151; N2045
Boas v The State [2010] PGNC 245; N3969
Kum v The State (2017) N7002

Legislation:

Bail Act
Constitution of the Independent State of Papua New Guinea

Counsel:

Ms Serah Kunai, for the Applicant
Mr Jonathan Dangere Panpan, for the State

13^th March, 2023

1. TAMADE, AJ: The Applicant is a 43-year-old male from Saroa Village in Rigo, Central Province. The State alleges that on 6 June 2022, the Applicant’s son, Jonsi was consuming alcohol with his friends, a group of teenagers when a fight broke out and Jonsi called on to the Applicant that another person by the name of Raymond Kekebogi had challenged the Applicant to a duel. Jonsi then broke a bottle on Raymond’s head and as Raymond tried to stop Jonsi, the Applicant head butted Raymond. Raymond then removed a can beer from his waist bag and smashed it on the Applicant’s face. It is further alleged that the Applicant left the scene and returned to challenge Henry Kekebogi to a fight when he punched Henry twice on his face with such a great force that Henry was taken to the hospital. Two days later Henry passed away as a result of the serious assault from the Applicant.
   
2. The Applicant was charged with manslaughter contrary to section 302 of the Criminal Code and is in custody since 8 February 2023. The Applicant applies for bail pursuant to section 42(6) of the Constitution and Sections 4, 6 and 9(1) of the Bail Act.
   
3. The Applicant applies for bail on the following grounds:
   
   1. He is a first-time offender
   2. He is a law-abiding citizen
   100. The incident was in self defence
   4. The charge is not appropriate as the Applicant states it was unintentional.
   5. The Applicant also relies on the reason that his continued detention will affect his family’s livelihood as he is the sole breadwinner of his family and his three children who are in school will be affected.
      
4. Section 4 of the Bail Act is in the following terms:
   

4. ONLY NATIONAL OR SUPREME COURT MAY GRANT BAIL IN CERTAIN CASES.

[1](1) A person–

(a) charged with wilful murder, murder or an offence punishable by death; or
(b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or breaking and entering a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence,

shall not be granted bail except by the National Court or the Supreme Court.

(2) For the purposes of Subsection (1), “firearm” includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile.

5. Ms Kunai has submitted the case of Rose Yamaen v The State^[1] where the Applicant was charged contrary to section 302 of the Criminal Code for the death of her husband. In Rose Yamaen, bail was unopposed and there was medical evidence that the deceased had succumbed to asthma when he was in a struggle with his wife. The Court in Rose Yamaen relied on Re Herman Kagle Diawo^[2] and The State v Tohian^[3] that bail should be given readily on the presumption of the right to bail pursuant to section 42(6) of the Constitution.
   
6. Section 42(6) of the Constitution is in the following terms:
   

6) 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 to acquittal or conviction unless the interests of justice otherwise require.

7. There are many cases on the point that the presumption of the right to bail pursuant to section 42(6) of the Constitution is not automatic, it is weighed against the considerations in section 9(1) of the Bail Act. Unless one or more of the considerations in section 9(1) of the Bail Act is present if raised by the State, bail should be refused unless the Applicant shows that his continued detention is unjustified as in Fred Keating v The State^[4].
   
8. The State has raised objections to the bail application. Mr Panpan of the State submits that the alleged offence in which the Applicant is charged with is a serious assault culminating in death of the deceased and that it consists of a threat of violence to another person which was carried out under the circumstance. Section 9(1)(c) of the Bail Act therefore exists as a ground to refuse bail. Section 9(1) of the Bail Act is in the following terms with appropriate sections underlined:
   
9. BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

[2](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 or more of the following considerations: –

(a) that the person in custody is unlikely to appear at his trial if granted bail;
(b) that the offence with which the person has been charged was committed whilst the person was on bail;
(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 consist 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;

(d) that the person is likely to commit an indictable offence if he is not in custody;
(e) it is necessary for the person’s own protection for him to be in custody;
(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings;
(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;
(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;
(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody;
(j)[3] that the alleged offence is one of breach of parole.

10. Mr Panpan of the State has submitted that the Applicant’s continued detention is the natural consequence of being charged and detained. He also states that the Applicant’s family’s suffering and hardship are consequences of his detention and therefore his family situation is not a ground for bail. Mr Panpan relies on the case of Yasause v The State^[5]. I uphold these submissions and also add on the case of Maru and Oa v The State^[6] where the Court has said that in regard to where the Applicant has provided some family hardship being unable to be employed as a ground for bail, the Court should also consider that there is also a presumption that the Applicant has been properly charged and is detained on a proper basis. The family hardship an applicant has to face whilst being detained is a natural consequence of being charged with a criminal offence. The reason advanced by the Applicant that his continued detention is unjustified because of the need to provide for his family welfare is not a reason as to why his continued detention is unjustified.
    
11. Mr Panpan has also objected to the Applicant’s guarantor Vetu Jones Doga being his brother as he submits that there is a presence of conflict of interest and a reasonable apprehension of bias pursuant to Boas v The State^[7]. In Boas v The State, in granting bail, the Court should weigh out the chances of the Applicant absconding bail and therefore guarantors should be neutral persons unrelated to the Applicant who can hold the Applicant to their word that the Applicant will not escape bail. These are persons who are putting their credibility on the line by speaking for the Applicant. Ms Kunai has counter submitted that the reason why the Applicant chose his brother as a guarantor is that he will reside with his brother at his residence. I uphold the submissions by Mr Panpan that the Applicant’s brother is not a neutral person, and his word cannot be taken seriously.
    
12. The Applicant has complained that since his detention on 8 February 2023, his case has not been heard and therefore his constitution right to bail has to be granted. The criminal process in PNG can take some time as is the due process from being charged, detained to finally having your case heard in the District Court as the Committal Court and or a trial in the National Court. No one gets a special preference, every person charged is given the due process and sometimes, due to back log of cases and many offenders, the process can take some time. The Applicant’s defence to the charge that he did not intend to cause the death of the deceased as he acted in self-defence is a matter for the substantive matter at the Committal Court and is not a consideration for this Court to take into account. There is also some discrepancy as to the age of the deceased person as the State alleges that the deceased was an old man and the Applicant disagrees however those are matters for the substantive hearing. The Applicant states in his affidavit that his trial in the District Court is set for 27 March 2023. The due process of law will take its course and the Applicant has a date this month for his case in the District Court.
    
13. In this case, bail is not a punishment to the accused and should not be seen as a punishment. Justice Kirriwom (as he was then) in Kum v The State^[8] said this:
    

“Bail is never to be used as a weapon or means of punishment even before a person is found guilty by the court and convicted of an offence. A person is presumed innocent until proven guilty of an offence. Bail must therefore be available at all times unless one of section 9(1) BA exceptions are made out that negate grant of bail.”

14. The discretion to grant bail is weighed against the considerations in section 9(1) of the Bail Act and the interest of justice considerations in section 42(6) of the Constitution. Given that there exists grounds 9(1)(c) (i) and (ii) of the Bail Act that the offence involves a serious assault and a threat of violence to another person and considering that one of the guarantors of the Applicant is not a neutral person in addition to the fact that the Applicant’s trial in the District Court is set for 27 March 2023, weighing out these considerations in the exercise of the Court’s discretion, bail shall be refused.
    
15. The Court therefore makes the following orders:
    
    1. The Application for bail by Andrew Karuka Doga is refused.
       

Jema Lawyers: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent

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[1] [1998] PGNC 23; N1707 (20 April 1998)

^[2] [1980] PNGLR 48
^[3] [1990] PNGLR 173
^[4] [1983] PGSC 13; [1983] PNGLR 133 (24 May 1983)
^[5] [2011] PGSC 15
^[6] [2001] PGNC 151; N2045 (26 January 2001)

[7] [2010] PGNC 245; N3969 (23 March 2010)

^[8] (2017) N7002