Tokana v State [2024] PGNC 52; N10699 (18 March 2024)

N10699

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA (APP) No. 662, 663, 664, 665, 666, 667& 680 OF 2023

CHRISTOPHER TOKANA, WAYNE TALI, FREDRICK SERI, JOESPH RONNIE, MEL TAIME, WANPIS BONE & SEBILEN SALUAI
Applicants

V
THE STATE
Respondent

Waigani: Miviri J
2024 : 15^th & 18^th March

CRIMINAL LAW – PRACTICE & PROCEDURE – Bail Application – Section 6 Bail Act – Section 42 (6) Constitution – Section 300 (1) CCA – Bail Opposed S9 (1) (c) (i) (ii) (iii) & (e)(f) Bail Act – Objection to Bail – Guarantors – Guarantee Not Made Out – Serious Offence Affidavit of Arresting Officer – Violence – Members of Police Force – Interest of Justice – Balance Not Discharged for Bail – Bail Refused.

Facts

Accused were charged with murder of a suspect taken by Police.

Held

1. Section 9 (1) (c) (i) (ii) (iii) (e) (f).
2. Threat of violence
3. Serious violent offence.
4. Objection sustained Affidavit Arresting Officer.
5. Bail Refused Remanded.
   

Cases Cited.
Keating v The State [1983] PNGLR 133
State v Kikala [2023] PGSC 15; SC2355 (22 February 2023
Walami v State [2021] PGSC 100; SC2182 (22 December 2021).
Maraga v State [2010] PGSC 60; SC1573 (20 December 2010).
Lester v The State [2001] PGNC 148; N2044 (22 January 2001).
State v Paul [1986] PNGLR 97
In re Bail Application by Hombi [2010] PGNC 84; N4080 (20 July 2010).
Diawo, Re [1980] PNGLR 148

Counsel:
F. Kirriwom, for the Applicants
S. Kuku, for the State

RULING

18^th March 2024

1. MIVIRI J: This is the ruling on an application for bail by the applicants who have all being jointly and severally charged with Murder pursuant to section 300 (1) of the Criminal Code Act.
   
2. Their application is made pursuant to the Bail Act Section 6, that bail be granted pending the committal process at the Waigani District Court. They are still going through the process of committal and this application is made pending. Their information charging all applicants is laid of the 07^th December 2023 alleging that on the 28^th November 2023 the seven (7) accused unlawfully murdered another person namely Kimorly Dagoba. Three of the applicants Constable Wanpis Bone, Constable Sebilen Saluali, and Constable Fredrick Seri are members of the regular constabulary. The other three are reservist Mel Taime, Wayne Tali, and Christopher Tokana. The Seventh Joesph Ronnie is a police informant. All were in a police hired vehicle HAU: 001 Toyota Land Cruiser white in colour. They were armed with a rifle and a pump action shot gun. On patrol they drove towards Boroko and came across a motor vehicle parked in the middle of the road with double blinkers leading into Eda Ranu and Works Compound.
   
3. They drove straight to them and came out of the vehicle and were questioning these suspects and searched them finding beer (alcohol) in their possession, so the policeman told them to get into their vehicle which is a Toyota Hilux utility, black/grey in colour, and a policeman drove their vehicle escorted by Police all the way to Gordons.
   
4. There were twelve (12) suspects, eight (8) of whom were sitting on the back tray. When they reached Gordons as they were driving past Gordons Secondary School main gate and upon reaching the road turning into Gordons Market, the suspects and the police driver drove past coming to the round about where the Corner Stone Church is, turned left towards the Gordons Police Station there was a pot hole prompting the driver to slow down giving five (5) of the suspects sitting at the back of the trailer to jump of the vehicle and run away. The police escort did not follow them towards Corner Stone Church, they turned left to the Market way and then came and stop in front of Elisio Trading.
   
5. When the policeman realized that some of the suspects had jumped off the vehicle, they drove straight to where they jumped off, came out and were searching the area and apprehended one of the suspects hiding in the drain. The policeman now before the Court chased the others towards corner stone church way and at the round about apprehended the other suspect who tried to escape in a taxicab. The other three suspects could not be located by the policeman, so they returned to the Police Station and locked up the two suspects in the police cell and released the other suspects in the vehicle without being charged for consuming alcohol in the vehicle. The other two being locked up were also not charged and later they escaped from the cells.
   
6. At about 5.00am one of the suspects who jump of the vehicle was found dead inside the drain between corner stone church and Gordons Police Station. Because of the negligence of the policemen in the handling of the 12 suspects during the apprehension at 4 mile to Gordons and not charging them led to the death of one of the suspects, they were detained in the cells and after further investigation the doctor confirm through post mortem that the cause of death is blunt force trauma to the chest and head using a blunt object, meaning the deceased was murdered, so the policeman were cautioned, arrested, charged, were informed of their Constitutional rights under section 42 (2) for one count of murder under section 300 (1) of the CCA and were detained.
   
7. These are the details of the information that has been laid by police against all applicants named. The role that each of the Applicants played in the demise of the deceased is not clear. He was found dead at 5.00am in the drain. In the information there is no allegation of actual violence perpetrated upon the deceased by the applicants. Either in that they assaulted him, they aided and abetted each other in assaulting him. And at the time that they did this they were armed with a rifle or shotgun that was also used, either to threaten the deceased, or the others who were with him. That is not the allegation in the information set out above. What is set out is that the suspect was one of the twelve (12) who was taken in because police discovered alcohol. But he jumped as he was being taken to the police station. He was found in the morning dead in the drain. There is nothing that befits section 9 (1) (c) (i) (ii) (iii) in the information set out above. If that was all that the State had bail would be granted.
   
8. Yes, the technical rules of evidence do not apply here, but looking at the affidavit filed by Sergeant Nei Pige of the 29^th December 2023 the officer In Charge of the Homicide Division at Boroko Police Station, and the arresting officer paragraph 6 draws out what the applicants are alleged to have done to the deceased. “It is alleged that the deceased was severely assaulted by the seven policemen, and he later died from the injuries he sustained to his chest and head. This is confirmed by the autopsy report as death due to blunt force trauma.” And paragraph 7 continues, “At around 5.00am in the morning the deceased body was found in the drain between the Corner Stone Church and Gordons Police Station. It is alleged that the deceased body was placed in the drain after his death by the applicants/ accused persons.
   
9. 8.” The seven Applicants/Accused persons, Joesph Ronnie, Sebilen Saluali, Mel Taime, Wayne Tali, Christopher Tokana, Wanpis Bone, Fredrick Seri were charged on the 07^th December 2023 for one (1) count of Murder contravening section 300 (1) (a) of the Criminal Code.
   
10. Therefore, I am opposing bail for the seven (7) applicants/Accused persons based on the grounds: Interferences with witnesses-The Witnesses live around the vicinity of Gordons Police Station and are known to Applicants/Accused persons. Therefore, the likelihood of interference with the witnesses is high. A very serious offence has been committed involving grievous bodily harm resulting in the death of a young man from Tari, Hela Province. Safety of the seven (7) Applicants/Accused Persons-Due to the serious nature of the offence and the origins of the deceased, it is for the seven (7) applicants/Accused persons own protection that they remain in custody under the protection of Correctional Services.
    
11. Based on these grounds, I submit to this honourable Court to refuse Bail on Accused.”
    
12. This evidence fulfills what is set out by section 9 (1) (c) (i) (ii) (iii) of the Bail Act in favour of the objections raised. Including the consideration under section 9 (1) (e) and (f) which are sufficient to refuse the application. And in the light of Keating v The State [1983] PNGLR 133. It is clear there really is no material convincing to allow the applicants bail. Nothing has been filed in response to the assertions of the arresting officer. Filling out forms as here is alright, where the person is a simple citizen who does not have legal know how. But where the application is run by lawyers in this case the office of the Public Solicitor, it ought to be properly filled with a proper material, not only the forms of the bail rules but supplemented with affidavits with independent material verifying that will convince for example, there are genuine guarantors of standing and repute who can ensure that what is asserted to by the Informant in his affidavit is avoided. The guarantors proposed will ensure peace and lawfulness, there is no resort to further acts of violence in retaliation.
    
13. Here in my view, it is not enough to rely on the details that have been filled out by the applicants. Because they do not by themselves refute the allegation that the Informant has raised set out above. Not only do they have repute and standing in the Community but will stop and prevent what the informant is alleging if the applicants are released on bail. And if there is a failure the guarantors are liable for making sure the applicant returns and can be easily located. They are leaders or persons of repute and standing in the community to make this happen: State v Kikala [2023] PGSC 15; SC2355 (22 February 2023). When there is a breach in bail it is a simple matter to get the guarantors to secure the attendance of the applicant. There is no resort to self help as here where the lives of the applicants out on bail is not guaranteed. This would be what the proposed guarantors would depose to, that there is peace in the community. The matter is now within the realm of the law to see out what Justice draws given. The guarantor a leader deposes that there is no likelihood of further trouble because of this allegation by the applicants.
    
14. Christopher Tokona does not have that coming of his proposed guarantors Ramson Eroa and Ruben J Sanata named in his bail application rules form 1. In Wayne Tali firstly, one Gobaki Ragela Rigo East Local level and Andrew Loi Kau. In Fredrick Seri firstly one Willie Mondo Pastor and secondly one Wo Lapambang Sition Soldier applicant’s late fathers’ workmate. And in Joseph Ronnie Firstly one, Bibiana Seri Pastor, and two Brian Pangap Community Leader. And in the case of Mel Taime, one Doctor Charlie Koi, Medical Officer, and two, Wendy Tiamu Nursing Officer. In Wanpis Bone, one Fred Viribi Chairman National Capital District Commission, and two Ben Alesa Gamoa Pastor Foursquare Church. And Sebilen Saluai, one Ben Taul Chairman NCD Mediation Family friends and son in law of the applicant Paul Nidue. All proposed guarantors do not put anything to say what they will do in respect of the assertion of the informant that the lives of the applicants are not at risk if they are out on bail. And in what way will they stop the interference with witnesses who are immediately where the Gordons area is. It is important to ensure that these are settled by each of the guarantors named. Name and position is one thing but what will they do constructively to ensure that section 9 (1) (c) (i) (ii) (iii) (e) (f) are not breached.
    
15. In my view it is not wrong to insist and go down this path. The Court has done this in the case of application made in reliance of medical conditions by applicants. It has been held that the medical condition of an applicant be confirmed by a doctor before bail is considered and granted: Walami v State [2021] PGSC 100; SC2182 (22 December 2021) and Maraga v State [2010] PGSC 60; SC1573 (20 December 2010). In similar fashion it is not wrong to insist that the contention here, by the affidavit of the arresting officer are addressed so as to level the application for the applicants. It has not been done so here.
    
16. Yes bail is a right, but coming with obligations upon both the applicant and the Court. “I do not believe that it was intended that bail should be granted without regard to the question of whether or not the applicant for bail will ever answer bail until excused by the Court in the due course of time and process. Indeed, s. 9 of the Bail Act does have provisions relating to that issue. The practice of calling for guarantors and people giving guarantees and undertakings to ensure bail conditions being met seem is in line with that. Yet those who have been giving such guarantees and undertakings have not been serious with their undertakings and or guarantees perhaps because of the penalty or the consequences they stand to face appear not to be serious. It is high time now for cash bails and sureties to be increased upward to the thousands to give some seriousness and importance to the need to meet bail conditions. If most other jurisdictions impose such higher conditions, I see no reason why the level of cash bails and sureties should not be increased in our jurisdiction to either eradicate or minimized the number of bail jumpers.
    
17. I do appreciate that some may argue that imposing such terms may in effect amount to a refusal of bail because of inability of offenders to raise the amounts required and therefore a breach of the Constitutional right to bail. Such an argument has to be view in the overall interest of the society and serious negative impacts crime in general is having on our society. One should also need to consider the large number of people breaching bail terms after the police have done their best in apprehending offenders and bringing them before the courts. Granting bails without any regard to the difficulties and expenses the society through the police go through to bring offenders to the Courts would amount to injustice to society for the sake of an offender. The courts are required to administer justice and it behoves the courts to consider and take such issues into account before granting bails in the interest of justice not only from the perspective of an offender but also the society, which are not necessarily the same, Lester v The State [2001] PGNC 148; N2044 (22 January 2001). It is my view that further breach of law and order must be avoided at all costs. The investigator has raised a genuine concern for further trouble if the applicants are released on bail. They will be attacked and set upon in revenge.
    
18. Section 42 (6) is given heed to by section 9 of the Act. The applicant must satisfy one or more of the considerations set out by section 9 of the Act. That “BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.
    • (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) that the alleged offence is one of breach of parole.

(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.

(3) For the purposes of Subsection (1)(i), “narcotic drug” has the meaning given to it in the Customs Act 1951.”

19. And there is no evidence filed by the applicant that refutes what is set out by section 9 (1) (c) (i) (ii) (iii) (e) (f) of the Bail Act, and the evidence supporting here. And this view is supported by State v Paul [1986] PNGLR 97 where bail was refused because of section 9 (1) (c) (i) (ii) (iii) of the Bail Act. Here these applicants were wearing police uniforms and coming with that uniform was the rifle and shotgun with the vehicle Toyota Land Cruiser hired by Police Department registered number HAU: 001 that was used to take in the deceased and others numbering 12 in all. The affidavit of Arresting Officer Nei Pige shows threat of violence upon another, use of violence in the commission of the assaults that led to death of the deceased and discarding of his body, the evidence in the drain. It is very serious and fits what the Bail Act under section 9 sets out particulars above. The facts here by the affidavit together with the information in my view do not call that bail be granted each of the applicants as applied. Rather the contrary that the application is refused and each be remanded in custody to await the committal proceedings.
    
20. Further the interest of Justice was not served that the Applicant be granted bail because of the significance of the offence. There it involved the stealing of arms from the Police Station Armory. Here in my view the gravity of the offence itself is more than enough in the interests of justice that bail be not granted. Policeman are also citizens who must observe the law to be released is not on the basis of that fact but that, “there are substantial grounds for believing that one or more of the matters 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,” In Re—Fred Keating [(supra). There are no substantial grounds demonstrated in each of the applications of the seven applicants. I will follow similar sentiments in In re Bail Application by Hombi [2010] PGNC 84; N4080 (20 July 2010) that this application by all applicants has demonstrated no merit to be granted bail. And the interests of society also to deal with offenders once before the courts and therefore stricter and higher terms maybe imposed: Lester (supra). This is not warranted given the discussion set out above. That the Court must also be conscious of the Bench Warrant list which must be addressed by properly in the screening of applications for bail. Allowing bail must be based on surety, “Likely” that appearance is guaranteed Diawo, Re [1980] PNGLR 148. It is an exercise that will not defeat Justice. Or that it will lead to further problems in breaching the law and order.
    
21. The aggregate is that the application is refused and the applicants remain remanded forthwith.
    

Ordered accordingly.
______________________________________________________________
Ponepai Lawyers : Lawyers for the Applicants
Public Prosecutor : Lawyers for the State