Wagupa v Independent State of PNG [1996] PGSC 1; SC494 (8 March 1996)

Unreported Supreme Court Decisions

SC494

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SC APPLICATION 2 OF 1996
IN THE MATTER OF APPLICATION OF JOSEPH WAGUPA - APPLICANT
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - RESPONDENT

Waigani

Kapi DCJ Doherty Sevua JJ
6 March 1996
8 March 1996

CRIMINAL LAW - Particular offence - Wilful murder - Bail application - Statutory right to bail - Grounds for refusing bail - Bail Act (ch 340), s 9 (1) (c) (i) and (iii).

Counsel

P Mawa for the Applicant

R Auka for the Respondent

8 March 1996

KAPI DCJ DOHERTY SEVUA JJ: The applicant has been charged with wilful murder pursuant to s. 299 of the Criminal Code. It is alleged that he shot the deceased to death with a high powered rifle on 6 November 1995 in his house at Ebuga village, Togoba in the Western Highlands Province. The applicant was arrested on 27 January 1996 in Port Moresby and has been in custody since.

The committal proceedings have commenced in the District Court in respect of the charge and they are continuing.

On 12 February 1996, the applicant filed application for bail in the National Court. The application was heard by the Chief Justice and he refused bail.

The applicant has filed this application in the Supreme Court pursuant to s. 13 (2) of the Bail Act (ch 340) (hereinafter referred to as “the Act”). Counsel for the Public Prosecutor has objected to the application on the grounds that (a) the alleged act constituting the offence of wilful murder consist of a serious assault (s. 9 (1) (c) (i) of the Act) and (b) the alleged offence consist of the applicant having possession of a firearm (s. 9 (1) (c) (iii) of the Act). These grounds were also relied upon by the Public Prosecutor in the application for bail in the National Court.

In a wilful murder case, the proper considerations for bail are set out in the provisions of the Act. The provisions of the Constitution, s. 42 (6) are not applicable. In exercising its discretion under the Act the starting point for the bail authority is to grant bail and release the applicant unless the bail authority is persuaded that bail should be refused on one or more of the considerations set out in s. 9 of the Act. A similar conclusion was reached in South Australia where the law has been codified in similar terms to our Act (see Farquhar v Fleet (1989) 41 A Crim R 40).

In practical terms, the onus is on the prosecution to prove any of the considerations set out under s. 9 of the Act and to persuade the bail authority why bail should be refused on any one or more of the considerations set out under s. 9 of the Act. Whether or not bail is refused under this provision is entirely within the discretion of the Court. The principles we have stated come well within the previous decisions of this Court, in particular Re Keating [1983] PNGLR 133 and State v Tohian [1990] PNGLR 173.

As we have stated previously, the prosecution oppose bail on two grounds (a) the alleged act constituting the offence consists of a serious assault (b) the alleged offender having in his possession a firearm. We accept that both of these considerations are allegations only and whether or not they will be proven is a matter to be determined at the trial. The question is whether these considerations would persuade us to refuse bail to which the applicant is entitled under the Act?

A case in which possession of a firearm was considered is State v Tohian (supra). In that case the applicant was charged with an offence under s. 39 of the Criminal Code. One of the considerations raised by the prosecution in opposing bail was that Mr Tohian had in his possession a firearm, namely a submission gun that can fire 35 bullets in a round. The Court did not refuse bail in the exercise of it’s discretion.

We would distinguish Tohians case from the present case. The firearm in question was not loaded at the time nor was it used in any manner that could be said to have put the intended victims in any real danger. In this case there is allegation of a death as a result of the use of the firearm.

In considering the use of the firearm, we also take into account that this killing is alleged to have taken place in an area where there is extensive tribal fighting which has been going on since the early 70’s. It is alleged that this killing took place within the context of the tribal fight. Counsel for the applicant has stated to the Court that the fighting is still continuing.

It is also apparent to us that there has been an increase in the use of firearms in the commission of violent crimes in the country. In the exercise of our discretion we would refuse bail.

The application is dismissed.

Lawyers for the Applicant: Nonggor & Associates

Lawyers for the State: Public Prosecutor