Yausase v State [2011] PGSC 15; SC1112 (8 July 2011)

SC1112

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SC APP NO 1 0F 2011

DR THEO YAUSASE
Applicant

V

THE STATE
Respondent

Waigani: Salika DCJ, Cannings J, Sawong J
2011: 1, 8 July

BAIL – application to Supreme Court after refusal of bail by National Court; Bail Act, Section 13(2) – applicant charged with wilful murder – relevance of considerations in Bail Act, Section 9(1) – whether applicant needs to establish exceptional circumstances warranting bail.

The applicant, who was detained in custody in connection with a charge of wilful murder, applied to the Supreme Court for bail, following refusal of bail by the National Court. The State opposed bail under Section 9(1)(c)(i), (ii) and (iii) of the Bail Act (the alleged act constituting the offence in respect of which the applicant is in custody consists of a serious assault, a threat of violence and possession of a firearm). The applicant argued that he should be granted bail as he was innocent of the charge, his business interests were adversely affected by his continuing detention, he could not prepare a proper defence while in custody, he has pending applications for a number of senior public service positions, his health is poor and the welfare of his family has been greatly affected by his detention and the publicity given to the case.

Held:

(1) A bail application under Section 13(2) is a fresh bail application, not an appeal, and the applicant is under no obligation to establish that bail was wrongly refused or that there has been a change in circumstances following refusal of bail.

(2) An applicant charged with wilful murder (or treason) enjoys no presumption in favour of granting of bail.

(3) If the State opposes bail, including for a person charged with wilful murder, it should establish that one of the circumstances in Section 9(1) of the Bail Act apply.

(4) If one or more of the circumstances in Section 9(1) applies, the court is not obliged to refuse bail; the decision whether to grant or refuse bail, and if to grant bail as to the conditions imposed, remain matters for the discretion of the court.

(5) An applicant charged with wilful murder must, in order to convince the court to exercise its discretion in his favour, show that exceptional circumstances make his continued detention unjustified.

(6) Though the reasons advanced by the applicant are relevant considerations, none of them, either considered alone or in conjunction with each other, amounted to exceptional circumstances that make his continued detention unjustified.

(7) Other considerations, including a lack of recent complaint about conditions of detention, the reasonable amount of time in custody and the fact that the accused has been committed for trial, supported the State's position. Bail was accordingly refused.

Cases cited

The following cases are cited in the judgment:

Bernard Juale v The State (1999) N1887
Bernard Uriap v The State (2009) N3822
Fred Keating v The State [1983] PNGLR 133
In the Matter of Bail Applications by 61 Remandees of Boram Correctional Institution (2006) N3801
Noah Karo v The State (2009) SC998
The State v Paul Tohian [1990] PNGLR 173
Theo Yausase v The State MP No 12 of 2011, 22.02.11

APPLICATION

This was an application for bail to the Supreme under Section 13(2) of the Bail Act.

Counsel

C S Raurela, for the applicant
J W Tamate, for the respondent

8 July, 2011

1. BY THE COURT: Dr Theo Yausase is applying to the Supreme Court for bail and his application is opposed by the State. He is charged with the wilful murder of Aquila Emil at Waigani on 4 February 2011 and has been in custody in connection with that charge since 7 February 2011. He made a bail application to the National Court, constituted by Justice Kariko, on 18 February which was refused on 22 February on various grounds, including that the charge involved a serious assault and possession of a firearm, the police investigation had only just begun and the applicant failed to demonstrate exceptional circumstances warranting his release from custody (Theo Yausase v The State MP No 12 of 2011, 22.02.11). He has recently been committed by the District Court for trial in the National Court.

BAIL ACT, SECTION 13(2)

2. The application is made under Section 13(2) of the Bail Act, which states:

Where a person is refused bail by a Judge of the National Court he is entitled to apply for bail, immediately if he so desires, to the Supreme Court.

3. This is not an appeal against refusal of bail. Nor is it an application for reconsideration of bail based on a change of circumstances. It is a fresh application, which means that the applicant is under no obligation to establish that bail was wrongly refused or that there has been a relevant change in circumstances. He may rely on the same material he put before the National Court. He can raise new grounds or arguments or abandon grounds that were put before the National Court (Fred Keating v The State [1983] PNGLR 133, The State v Paul Tohian [1990] PNGLR 173, Noah Karo v The State (2009) SC998, Bernard Uriap v The State (2009) N3822).

BAIL APPLICANTS CHARGED WITH WILFUL MURDER

4. Because the applicant is charged with wilful murder he does not enjoy the presumption in favour of bail arising from Section 42(6) of the Constitution that operates in favour of a bail applicant charged with any offence other than wilful murder or treason. However, he does enjoy the benefit of Section 9(1) of the Bail Act, which means that bail can only be refused if the Court is satisfied that one or more of the circumstances in that provision apply. As the State opposes bail in this case, it must establish that one or more of those circumstances apply. If one or more of them do apply, the court is not obliged to refuse bail; the decision whether to grant or refuse bail, and if to grant bail the conditions to be imposed, remain matters for the discretion of the court (Bernard Juale v The State (1999) N1887). An applicant charged with wilful murder must, in order to convince the court to exercise its discretion in his favour, show that exceptional circumstances make his continued detention unjustified. If none of the circumstances in Section 9(1) apply, bail must be granted.

5. Here, the police brief relied on by the State demonstrates that the circumstances in Section 9(1)(c)(i), (ii) and (iii) apply in that the alleged act constituting the offence in respect of which the applicant is in custody consists of a serious assault, a threat of violence and possession of a firearm. The question therefore becomes whether the applicant can show that exceptional circumstances make his continued detention unjustified.

DO EXCEPTIONAL CIRCUMSTANCES MAKE THE APPLICANT'S CONTINUED DETENTION UNJUSTIFIED?

6. The applicant relies on the following matters to argue that exceptional circumstances exist:

1. he is innocent of the charge,
   
2. his business interests are adversely affected by his continuing detention,
   
3. he cannot prepare a proper defence while in custody,
   
4. he has pending applications for a number of senior public service positions,
   
5. his health is poor, and
   
6. the welfare of his family has been greatly affected by his detention and the publicity given to the case.
   

Our assessment of these matters follows.

1 Proclaimed innocence

7. The question of whether the applicant is innocent or guilty is not before the court. If it appeared that an applicant has been charged without any proper legal basis, that might amount to an exceptional circumstance. But that is not the case here. The applicant has recently been committed for trial, so the fact that he is proclaiming his innocence is irrelevant to his bail application.

2 Business interests

8. There is no reason to doubt that the business interests of the applicant, who has been a private consultant since 2009, have been and will continue to be adversely affected by his continuing detention. But the nature and extent of the adverse effects are vague and unquantified; as are the adverse effects on businesses and individuals who may rely on the applicant for assistance.

3 Access to lawyer

9. We agree with the views of Kariko J in the National Court that the normal practice of the Correctional Service is to allow remandees to have access to their lawyer for the purposes of preparing their defence. There is no evidence to suggest that that practice is not being adhered to in the applicant's case. If the applicant is refused reasonable access to his lawyer he would be able to make an application to the National Court for enforcement of his human rights, one of which is conferred by Section 42(2)(c) of the Constitution: a person who is detained "shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained".

4 Applications for senior positions

10. The applicant has given evidence that he has been short-listed for a number of Departmental Head positions in the Public Service. He wants to be released from custody so that he can attend interviews and advance his applications. We do not think this is a good reason to grant bail. It would be most unusual for an appointing authority, we suggest, to consider appointing to a Departmental Head position a person who is facing trial for wilful murder. The applicant must be realistic, and so must the Court.

5 Applicant's health

11. The applicant asserts that both his physical and his mental health are poor. He claims to be still suffering from injuries to his nose, groin and knees inflicted on him by correctional officers at Bomana Jail, when he was first detained there on 8 February. He is suffering from depression and stress and is on anti-depressants. He has provided a report by Dr L Nanawar, Psychiatrist and Acting Director of Medical Services, Laloki Psychiatric Hospital, dated 14 March 2011, stating that he is suffering from an "adjustment disorder with mixed anxiety and depressed mood precipitated by stress of public stigma due to his high standing in the society, dislocation from his family, his arrest and detention, as well as financial and other losses".

12. As to his physical injuries, the evidence is vague and uncorroborated. Kariko J commented in his ruling on 22 February that the claim that the applicant was assaulted was refuted by the Jail Commander. His Honour was unable to make a finding that the applicant had been assaulted or that he was suffering any injuries. We are in a similar position. As for his mental health, the report by Dr Nanawar is three and a half months out of date. Is the applicant still suffering from depression? Is he still on the medication prescribed by the doctor? We do not know. If an applicant expects the court to act on medical evidence, the evidence must be current. If we presume that the applicant's condition is the same as it was three and a half months ago, that, by itself, would not constitute an exceptional circumstance warranting the granting of bail.

6 Family's welfare

13. On this issue the applicant and his lawyer have provided the court with inadequate, outdated information. The most recent affidavits in support of the bail application were filed on 4 May 2011, eight weeks before the application was heard. At that stage the applicant's wife had just died and the applicant deposed in an affidavit that he was mourning her death and he needed to be with his children. All of this is accepted and entirely understandable. However, what was not made clear to the Court until towards the end of the bail hearing was that the applicant had, due to the good offices of the Correctional Service and the Police, been released from custody (under escort) for the purposes of attending his wife's funeral and attending to other customary obligations, and subsequently returned to custody. The court was misled by the applicant's lawyer, Mr Raurela, on this issue; and that does not assist the applicant, who was obliged to bring all relevant and current information to the attention of the court. The applicant also asserts that his four children have been adversely affected by the combined effect of his continued detention and the death of their mother. One of his children has a heart condition and he is particularly concerned about her welfare. We accept the genuineness of these concerns.

Conclusion

14. Though the matters raised by the applicant are relevant considerations, none of them, either considered alone or in conjunction with each other, amount, in our view, to exceptional circumstances that make his continued detention unjustified. The one that comes closest is the effect of his continued detention on his children who it can safely be presumed are suffering greatly due to having their father in custody while at the same time dealing with the recent death of their mother. However, we endorse the views of Kariko J on this issue. When refusing bail in the National Court his Honour stated:

Where an accused person is remanded in custody it is only natural that the family will suffer in the sense that it will miss the usual parental support (including emotional and financial).

15. There are two other considerations that need to be mentioned, which support the State's position and which convince us that we should refuse bail.

16. First, there is no recent complaint about the conditions in which the applicant is being detained or a recent complaint that he has been assaulted or that his safety or security is at risk while he is in custody.

17. Secondly, in any bail application the court should take into account the length of time the applicant has been in custody. Generally speaking the longer the period in remand, the more likely it is that an applicant will be granted bail (In the Matter of Bail Applications by 61 Remandees of Boram Correctional Institution (2006) N3801). An applicant charged with wilful murder who has been in custody for an inordinate period may be able to show that this constitutes exceptional circumstances. Here, the applicant has been in custody for five months. For someone charged with wilful murder this is not an inordinate period in custody; especially when account is taken of the fact that he has recently been committed for trial. The Constitution, Section 37(14) allows a period of four months for a trial to commence after the date of committal before the Chief Justice is obliged to make a detailed report concerning the case to the Minister for Justice, and that period has only just started to run. This suggests that the applicant's case is being progressed in a timely manner and that his right under Section 37(3) of the Constitution to be afforded a fair hearing by an independent and impartial court within a reasonable time is unlikely to be breached.

18. For the above reasons we are not satisfied that exceptional circumstances exist that make the applicant's continued detention unjustified. The application will be refused.

ORDER

19. The application is refused on the grounds that:

(a) the circumstances in Section 9(1)(c)(i), (ii) and (iii) of the Bail Act apply, in that the alleged act constituting the offence in respect of which the applicant is in custody consists of a serious assault, a threat of violence and possession of a firearm; and

(b) there are no exceptional circumstances that make continued detention unjustified.

Judgment accordingly.
_____________________
Raurela Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyer for the Respondent