AJ v State [2024] PGNC 88; N10741 (19 April 2024)

N10741

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO 198 OF 2023

IN THE MATTER OF AN APPLICATION FOR BAIL PURSUANT TO SECTION 42(6) OF THE CONSTITUTION AND section 4(1) AND SECTION 6(1) OF THE BAIL ACT, CH 340

BETWEEN
AJ
Applicant

AND

THE STATE
Respondent

Wewak: Makail, J
2024: 16^th & 19^th April

APPLICATION FOR BAIL – Bail pending trial – Wilful murder charge – Grounds of – Overcrowding at remand facility – Shortage of food – Innocence – First timer – Detention a disruption to his education – Proposed peace and reconciliation ceremony between conflicting parties – Exceptional circumstances not established – Grounds failed to demonstrate continued detention not justified – Criminal Code – Section 299(1) – Constitution – Section 42(6) – Bail Act – Sections 4, 6 & 9(1)

Cases Cited:
Fred Keating v. The State [1983] PNGLR 133

Counsel:
Mr A Kana, for Applicant
Ms D Ambuk, for State

RULING

19^th April 2024

1. MAKAIL, J: This is an application for bail pending trial under Sections 4, 6 and 9 of the Bail Act and Section 42(6) of the Constitution.

Brief Facts

2. The applicant hails from Utipinim village, Wewak District in the East Sepik Province. He has been charged with one count of wilful murder under Section 299(1) of the Criminal Code and has been detained since 31^st August 2022. At the time of his arrest, charging and detention, he was a Grade 11 student at St. Xavier Secondary School, Kairuru Island, Wewak, East Sepik Province. The State alleged that during a fight, the co-accused of the applicant by the name of Quinton Mapki held the deceased at gunpoint on the ground while the applicant struck the deceased with a bush knife multiple times until he died.

Grounds for Bail

3. The applicant relied on the following grounds for bail:

(a) there is overcrowding posing health risk at Boram CS facility.

(b) there is food shortage at Boram CS facility.

(c) disruption to his education.

(d) first time to be charged for an offence.

(e) him being innocent.

(f) proposed peace and reconciliation ceremony between the conflicting parties to take place.

Guarantors

4. The applicant has two guarantors:

(a) Nelson Tenge Ningiwa, a subsistence farmer and brother in-law of the applicant from Yuo village who has pledged to put up K500.00 surety.

(b) Philip Tom, a subsistence farmer from Yuo village and an uncle of the applicant who has pledged to put up K500.00 surety.

Proposed conditions of bail

5. According to the applicant, if granted bail, he will reside at Moem village, Wewak. In addition:

(a) he will pay a sum of K1,000.00 as bail fees.

(b) he will attend Court on appointed times until completion of his case.

(c) he will not commit any other criminal offence while on bail.

(d) he will not interfere with State witnesses and complainant.

(e) he will not leave East Sepik Province without the leave of the Court.

(f) he will attend all Court mentions and call-overs.

State’s submissions

6. The State opposed bail on the following grounds:

(a) the alleged offence consists of a serious assault.

(b) the alleged offence consists of threat of violence.

(c) the alleged offence was committed with use of dangerous and offensive weapons namely bush knife.

(d) the applicant is likely to interfere with State witnesses and complainant.

(e) overcrowding of the remand facility is not a ground for bail, but an administrative matter that can be resolved by the CS.

(f) the applicant’s innocence is not a ground for bail, but a matter for trial.

(g) the disruption of the applicant’s education is not a ground for bail, but a direct consequence of being charged and detained for the alleged offence.

(h) being the first time to be arrested, charged and detained for the alleged offence is not a ground for bail, but a direct consequence of being arrested and charged for the alleged offence. Otherwise, allowing bail on this ground will open floodgates because majority of those on remand are first timers.

7. However, if bail is granted, the State requires:

(a) the applicant to pay a sum of K2,000.00 as bail fees, and

(b) each guarantor shall pay a sum of K500.00 as surety.

(c) the applicant shall report to the Assistant Registrar of Wewak National Court on first Monday of each month.

(d) the applicant shall not interfere with State witnesses including the complainant.

Consideration

8. None of the grounds relied upon by the applicant, individually or collectively, meet the test of exceptional circumstances for grant of bail where it would otherwise be readily available under Section 42(6) of the Constitution. It follows that the State’s submissions as articulated at [6] (supra) are upheld. The applicant has failed to demonstrate by these grounds, his continued detention is not justified: Fred Keating v. The State [1983] PNGLR 133.

9. Significantly, the alleged offence consists of serious assault and threat of violence with use of a weapon – bush knife and the applicant is alleged to have struck the deceased multiple times as he laid on the ground while his co-accused held the deceased at gun point. These allegations point to another serious crime of violence in the country where the considerations under Section 9(1) of the Bail Act are present and operate against the applicant.

10. The gravity of the alleged offence must override the applicant’s claim of a proposed peace and reconciliation ceremony between the conflicting parties to take place. Further, the investigating officer First Constable Silas Kauri deposed in his affidavit filed 11^th April 2024 that the tension between the conflicting parties is still high and if the applicant is released on bail, the relatives of the deceased will harm him. This puts the safety and security of the applicant, if released on bail, in doubt.

Conclusion

11. For the foregoing reasons, the Court is not satisfied that the applicant having been charged with wilful murder under Section 299(1) of the Criminal Code has discharged the onus bestowed on him that the grounds are exceptional and that his continued detention is not justified.

Order

12. The application for bail is refused.
________________________________________________________________
Public Solicitor: Lawyers for the Applicant
Acting Public Prosecutor: Lawyers for the State