Kange v Independant State of Papua New Guinea [2016] PGSC 51; SC1530 (2 September 2016)

SC1530

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC APP No. 13 0F 2016

IN THE MATTER of an Application for Bail pursuant to Section 13 (2) & 6 (1) of the Bail Act & Sections 42 (6) of the Constitution

BETWEEN:

FELIX KANGE
Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani: Kandakasi J. David & Neill JJ.
2016: 1&2 September

BAIL – Application to Supreme Court after refusal of bail by National Court; Bail Act, Section 13(2) – Applicant charged with murder – Relevance of considerations in Bail Act, Section 9(1) – Whether applicant needs to establish circumstances warranting bail.
Facts:
The applicant, who was detained in custody in connection with a charge of murder, applied to the Supreme Court for bail, following refusal of two separate applications for bail by two separate National Courts. The State opposed the application under s.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, his health is poor and the welfare of his family has been greatly affected by his detention.

Held:

1. A bail application under s.13(2) of the Bail Act is a fresh 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 murder enjoys a presumption in favour of granting of bail.
3. If the State opposes bail, including for a person charged with 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 remains matters for the discretion of the court.
5. An applicant charged with murder must, in order to convince the court to exercise its discretion in his favour, show that his continued detention is unjustified.
6. Though the reasons advanced by the applicant are relevant considerations, none of them, either considered alone or in conjunction with each other amount to there being circumstances that demonstrate his continued detention unjustified.
7. Other considerations, including a lack of recent complaint about conditions of detention, the amount of time in custody and the fact that the committal process is soon to take place supported the State’s position. Bail was accordingly refused.
   

Cases cited:
Benson Titus v. The State (2001) N2043
Bernard Uriap v. The State (2009) N3822
Dr Theo Yausase v. The State (2011) SC1112
Fred Keating v. The State [1983] PNGLR 133
Jeffrey Osara v. The State (2001) N2042
Joe Apau v. The State (2010) N4073
Joe Puksy Purari v. The State (2001) N2077
Noah Karo v. The State (2009) SC998
Philip Maru & Arua Oa v. The State (2001) N2045
Tamara Player Tomscoll v. The State (2012) SC1208
Theo Yausase v. The State MP No 12 of 2011, 22.02.11
The State v. Paul Tohian [1990] PNGLR 173
Thress Kumbamong v. The State (2008) SC1017

Counsel:
F. Kuvi and J. Wiai, for the Applicant
T. Toke, for the Respondent

2^nd September, 2016

1. BY THE COURT: The Applicant Mr. Felix Kange is applying to this Supreme Court for bail which is opposed by the State. He is charged with the murder of one Regina Morove, his then wife at Gardens Hills, Port Moresby, NCD on 14 May 2016 with the use of a firearm in the presence of other people at his home. The Applicant has been in custody in connection with that charge since 30^th May following his surrendering to the Police. He made a bail application to the National Court, constituted by Justice Manuhu on an initial charge of manslaughter which was refused. Eventually the charge got upgraded to murder following which the Applicant applied for bail before Salika DCJ on 15^th and which application was refused the next day 16^th June 2016. The grounds he relied on included adverse impact on his family, especially a 6 months old child, his business and a medical condition, which are the same grounds he is raising before this Court. The police investigations appear to have been completed and the matter is pending conclusion of the committal process.
   

Court's Jurisdiction

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. Clearly, therefore this is not an appeal against refusal of bail. Similarly, this is not an application for reconsideration of bail based on a change of circumstances. The applicant is therefore making a fresh application. This means he 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.^[1]

Guiding principles

4. Because the applicant is charged with murder he does enjoy a presumption in favour of bail arising from s.42 (6) of the Constitution that operates in favour of a bail applicant charged with any offence other than wilful murder or treason. He does also enjoy the benefit of s.9 (1) of the Bail Act. Section 9 (1) reads in relevant parts:
   

“(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:—

...

(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; or

...

(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings; or

(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; or

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act against the person in custody; or

(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; or

(j) that the alleged offence is one of breach of parole.”

5. In a string of National Court Judgments, Kandakasi J, summed up the relevant principles or factors a bail authority must take into account before deciding whether or not to grant bail. One of the decision was in the matter of Philip Maru & Arua Oa v. The State,^[2] where His Honour outlined the following principles:
   

“(1) A person arrested and charged with an offence is entitled under s.42(6) of the Constitution to bail at any time except for wilful murder and treason but a bail authority still has the discretion to refuse bail ‘if the interest of justice otherwise requires’;

(2) The Bail Act (Chp.340) by s.9 sets out the circumstances in which bail may be refused;

(3) The existence of one or more of the circumstances under s. 9 of the Bail Act may form the basis to refuse bail but that is not automatic. There is discretion in a bail authority to grant bail if an applicant for bail is able to show by appropriate evidence that his ‘continued detention in custody is not justified’;

(4) The burden to produce appropriate evidence to form a foundation for a grant of bail is not a difficult and complicated one because by virtue of s.9(2) of the Bail Act the application of the technical rules of evidence are excluded;

(5) The list of circumstances under s.9 of the Bail Act is not exhaustive and other factors such as the following may be taken into account before deciding whether or not to grant bail:

(a) The applicant being an habitual criminal;

(b) Whether the applicant is a trustworthy person and will meet any bail terms that may be imposed;

(c) The number of bench warrants outstanding for bail jumpers for the kind of offence the applicant is held in custody for;

(d) The costs and expenses the society may be put through in trying to bring the applicant to justice if he breaches his bail terms which may mean delays in a speedy trial which may have the risk of the State loosing vital evidence supporting the charge against the applicant;

(e) The expenses and the trouble the society through the Police Force, has been put through to secure the applicant's arrest and incarceration;

(f) Whether the proposed guarantors are serious in their proposal having regard to the amount of money they are able to pay in sureties;

(g) Whether the amount of cash bail proposed has any relative correspondence to the offence with which he has been charged; and

(h) Whether the applicant would have already served his penalty without a trial by reference to the offence with which he has been charged and the possible date for his trial.”

6. We consider this accurately outlines the relevant principles that must guide applicants for bail, those who are opposed to bail being granted and a bail authority. Accordingly we endorse them and will allow ourselves to be guided by these principles.

Present case

7. This means an application for bail can only be refused if the Court is satisfied that one or more of the circumstances under s. 9 (1) exists. As the State opposes bail in this case, it must establish that one or more of those circumstances exist here. If one or more of them do exist, the court still has a discretion to either grant or refuse bail. The Applicant being charged with murder must in order to convince the court to exercise its discretion in his favour, show that there exists circumstances that demonstrate his continued detention unjustified.
   
8. Here, the evidence before us and essentially relied upon by the Police and hence the State demonstrates that the circumstances in Section 9(1)(c)(i), (ii) and (iii) and (f) 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 and the use of a firearm and there is the risk of interfering with State witnesses. The question therefore becomes whether the applicant has shown that established circumstances that demonstrate his continued detention unjustified.
   
9. The applicant relies on the following matters to argue that the following circumstances exists that demonstrate his continued detention in custody unjustified:

(a) he is innocent of the charge;

(b) his business interests are adversely affected by his continuing detention;

(c) his health is poor; and

(d) the welfare of his family especially a 6 months old child.

Consider of each of these matters.
(a) Proclaimed innocence

10. The question of whether the applicant is innocent or guilty is not before the court. If it is clearly established that the applicant has been charged without any proper legal basis that might amount to an exceptional circumstance. The evidence before the Court however discloses that he was initially charged with manslaughter. This has now changed and his charge has been upgraded to a charge of murder. That is no light matter by any measure that can be ignored. Police investigations have been completed and the committal process is now set to take its normal course. The applicant’s proclamation of his innocence is irrelevant to his bail application and should be rejected. A similar result was arrived at in the case of Dr Theo Yausase v. The State.^[3] There Dr. Yausase was charged with wilful murder. Pending his trial in the National Court, he applied for bail. One of the reasons he advanced was his innocence. The Court rejected the proclamation or the applicant’s claim of innocence as irrelevant in a bail application.
    

(b) Business interests

11. As did the Court in the Dr. Yausase (supra) we have no reason to doubt that the business interests of the applicant, who has been a private lawyer and businessman for some time have been and will continue to be adversely affected by his continuing detention. There is no clear evidence of how his business interests have and will continued to be affected. All we have is his claim that, with him detained, his business cannot function as he has to sign cheques and make the relevant and necessary payments. He has not provided any evidence that clearly discloses how his business interest cannot be taken care of by his assistant manager, divisional heads or a trusted employee. As the Salika DCJ said in his decision, there is nothing stopping him from signing “cheques from where he is”, which would be the place of his detention? If that has been difficult, the onus was on the applicant to establish that with appropriate evidence. This he failed to do. In the circumstances we reject this ground as a valid ground for a grant of the application.
    

(c) Applicant’s health

12. The applicant asserts that he suffers from severe abdominal pain, diarrhoea, bowl movement problems and anxiety. He has visited Maranatha Medical Services for treatment, which has provided a report support his claims. He claims further his continued detention at the current location which is unhygienic will worsen his current medical condition. The medical report is dated 20^th June 2016. There is no report covering the applicant’s medical situation since the last medical report. As this Court already said in the Dr Yausase case: “[i]f an applicant expects the court to act on medical evidence, the evidence must be current.” Again as observed in that case, a lack of current and up-to-date medical report means an applicant’s condition has not changed since the last known report. This would lend support to a finding that, no circumstance warranting the granting of bail being made out.
    

(d) Family’s welfare

13. On this issue the applicant says as at the time of the death of his wife, who was the victim of his alleged crime, they had a 6 months old child. Since the deceased demise, her sister was engaged as the child’s and 3 other children of the applicant’s previous marriage, baby sitter. The baby sitter is now not able to provide her services and there is no one on either his side or that of the deceased to take care of the child. He goes on to say the child is used to the baby sitter and himself. The child is now not able to adjust and has developed a medical problem that would affect his wellbeing. A medical report has been produced from a Karua Medical Center dated 13^th July 2016. That report does not report any abnormality in the child. As for his other children, the applicant points to evidence of decisions made by the children’s respective schools to have them excluded for non-payment of their school fees.
    
14. Pleading welfare of the family including children has not found favour with the Court both at bail and sentencing stages in the criminal justice process. In Philip Maru & Arua Oa v. The State (supra) Kandakasi J. said of such a plea:
    

“...it is a common claim by all bail applicants that their family will suffer unless they are released from bail. There is the presumption of innocence on the one hand and on the other hand is a presumption that a legitimate process has been set in motion on some proper legal basis. If an applicant’s family is put to some suffering of some sort by their arrest and detention, it is their own doing. The effect of their conduct should not form the basis for an exercise of the discretion vested in a bail authority, to decide whether or not to grant bail”.

15. Subsequent decisions as in the case of Joe Apau v. The State^[4] have endorsed and applied these comments.^[5] This Court, (differently constituted) effectively endorse this position in Tamara Player Tomscoll v. The State,^[6] when it said:
    

“In relation to the plea for Tamara’s own and that of her children and her families’ needs, we do sympathize with her, her children and family. However, these can have no consequence on the sentence she should receive as an offender. Indeed numerous cases say that an offender should think of the possible consequences that could flow against themselves and their family, friends and or business on account of their choosing to commit a crime before committing it. After the commission of an offence, it is a little too late to plead personal or family needs.”

Summary

16. As this Court said in the Dr. Yausase case, 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 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, in line with the foregoing discussions, we endorse the view expressed by this Court (differently constituted) in the case of Thress Kumbamong v. The State.^[7] There the Court said:
    

“...the medical conditions or other personal and family backgrounds and needs of an offender should not form any foundation for a lenient sentence unless, it is a case of life and death and no arrangements can made administratively by the Correction Services for a prisoner with a medical condition to access and receive appropriate medical attention and treatment.”

17. Although the above decision was on appeal from the National Court after a conviction and sentence, the principle applies even in the context of a bail application. The decision in Dr. Yausase, case is on point. There the Court endorsed the following statement from Kariko J:^[8]
    

“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).”

Additional factors

18. The above factors go against the application. At the same time, there are at least three other factors that go against the applicant. The first is the fact that there is no recent complaint about the conditions in which the applicant is being detained or a recent complaint that he has suffered serious medical problems and or making arrangements for his business and family while he is in custody. His affidavit in support of this application was deposed to on 29^th July 2016. Since then more than a month has lapsed. There is no affidavit disclose the current position.
    
19. 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. An applicant charged with 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 since 30^th May 2016. That means he has been in custody for 3 months. In the Dr. Yausase, case, a period of 5 months in custody for someone charged with wilful murder was not an inordinate period in custody; especially when given that the applicant had been recently committed for trial. The Court there also noted that, four (4) months time stipulation under s. 37 (14) of the Constitution, for trials to commence in the National Court after committal had not even started. Here the police have just completed their investigations and the committal process is about to begin. Hence the time the applicant spent in custody is not inordinate.
    
20. The third factor we turn to is the risk of witness interference. The applicant says the potential witnesses are Australian residents. That being the case, the applicant argues there is no risk of him interfering with the possible State witnesses. There is no evidence before us to confirm the applicant’s assertion. This was not a hard thing to do. The applicant was able to secure a letter from the Australian Immigration Services for the baby sitter. Hence, he could have in the same way obtained a letter from the Australian Government confirming the possible witnesses’ status in Australia. Besides there is no clarity as to the State’s potential witnesses. The Police hand up brief will disclose the names. The applicant has been served with a copy of the Police hand up brief. He should have therefore pointed out who the witnesses are and demonstrate how the risk of interfering with them does not exist. It is clear however, that the applicant is in a position of power and influence. Couple that with the availability of the various means of electronic and other communication, the risk of interfering with the State’s possible witnesses exist. If it is not the case, the onus was on the applicant to establish that. This he failed to do.
    

Decision

21. In view of the foregoing considerations, we are not satisfied that the applicant has establish a case of his continued detention being unjustified. The application will therefore be refused.
    

Order

22. The application is refused on the grounds that:

(1) the circumstances in Section 9(1)(c)(i), (ii) and (iii) and (f) 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 there is a likelihood of interference of witness; and

(2) there are no circumstances demonstrating the continued detention of the applicant is unjustified.
______________________________________________________________
Jerry Kiwai Lawyers: Lawyers for the Applicant
Public Prosecutor : Lawyer for the Respondent

---

^[1] See 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).
^[2] (2001) N2045. For other cases see: Joe Puksy Purari v. The State (2001) N2077; Benson Titus v. The State (2001) N2043 and Jeffrey Osara v. The State (2001) N2042.
^[3] (2011) SC1112.
^[4] (2010) N4073, per Kawi J. (as he then was).
^[5] Other judgments on point see: Re Bail Application; Floyd Kohai v. The State (2010) N4071; Samuel Arnold v. The State (2010) N4039; The State v. Taulaula Pakai (2010) N4215; The State v. Lucas Yovura 2003 N2366;
^[6] (2012) SC1208.
^[7] (2008) SC1017.
^[8] In Theo Yausase v. The State MP No 12 of 2011, 22.02.11)