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Kongo v The State [1996] PGNC 36; N1544 (23 September 1996)

Unreported National Court Decisions

N1544

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 524 OF 1996
MALAKI KONGO AND JOE AKUSI
v
THE STATE

Waigani

Batari AJ
20 September 1996
23 September 1996

CRIMINAL LAW - Wilful murder - Bail Applications - Alleged facts - Sufficiency of - Strength of evidence against accused - Relevance - Use of medical report not tendered - Applicant to show cause why detention not justified - Guarantors - Sufficiency of.

CRIMINAL LAW - Practice and Procedure - Bail Applications - Public Solicitor - Junior counsels attesting to affidavits - Unsatisfactory of.

Cases Cited:
Re: Keatings Case [1983] PNGLR 133

Counsel:

T Suwae for the State

WO Enoki for the Applicants

RULING ON BAIL APPLICATION

23 September 1996

BATARI AJ: This is a joint application for Bail pursuant to s. 6 of the Bail Act. Both applicants are charged with the wilful murder of one Petrus Ako Pongel. They are in dy awaiting trng trial in the National Court. The jurisdiction is Court ourt to decidir application is vested under the Bail Act.

At this this outset, I draw counsel’s attention to the unsatisfactory manner in the supporting Affidavits are put before the Court. 160; The mffidavit is depo deposed to by Mr Siminji who is a relatively new lawyer recruited to the Office of the Public Solicitor shortly before my appointment to the bench early this year. This out tcond time such auch anch an Affidavit is deposed to in the name of a junior lawyer, exemplifyint may be a grow growing ten away from accepted norm and practice which require opinions touching the defence, merits oits or substance of the case to be filed b principal lawyer, being in this case, the Public Solicitorcitor. The rationale is that the Public Solicitor under the Constitution has the sole responsibility and is accountable for all decisions, opinions and actions taken in the independent exercise offunctions. All informed legal atters ters must therefherefore be in the Public Solicitor’s name and documents in legal pdings must bear bear his endorsement. In his absence, senior la yers would act on his delegate. In essence, cored views and ons of senf senior experienced lawyers have cogency and compelling respectabictability to and by the Court. Diligounseld thre, in his his duty to the Court and to his client, file court documents that arat are appe appropriately endorsed by a senior membethe Office or the legal profession. It is also trite that adherence to status precedeecedence enables proper supervision and enhances accountability. I make tobservations at that the risk of stepping into the arena of the Public Solicitor’s adtrative functions. Ho0; However, thiue relateelates inherently to procedural regularity and applies generally.

The applicants’ lawyer relies only on the brief statement of facts which, as in most cases, is attached to the Charge Form. The statementains bare mine minimum allegations against the applicants and several others who allegedly murdered Petrus Ako. The failo dis sufficient dent details of the charge, deprives the Court proper appraisal of the face facts. d, Mr Otto submits thas apas application should be decided only on the basis of Mr Siminji’s Affidavit. I 0; I agree thatdge shoulshould not have behim every detail of the case if he is likely to preside ovee over the trial at some future time. How it is also fundamentanentanciple that the application is decided on sufficient facts.acts. I bn mind that the guilt oilt or innocence of the applicants at in issue at this point. In my viewre a bail apil apil application follows committal to stand trial as in this case, the applin should be considered on t on the basis of the committal dispositions to the extent of their relevance.

The facts alleged that between 8.00pm and 9.00pm one Moses Alai assaulted the deceased and retreated to the darkness where his friends waited. The ded followed him in puin pursuit. He was hit on his neck with an iron pipe by Malaki and stabbed with a knife by Moses Alai0; Joseph who I assume, is the same Joe Akusi in this application was amongst those who waio waited in ambush and attacked the deceas160; I assume also that Malt Malaki is the same Malaki Kongo in this application.

Both applicants are from Mendi in the Southern Highlands Province. Theased was from their samr same province. Malaki is aged 21 yearssind single. Joe Akusi is 25 yend marrimarried with one child. There is no indication that they were employed at the time of their arrest. Malived his sistere Joe lioe lived with his mother, both both at 8 Mile Settlement.

They wouy would return to live with their relativerelean Bail. It ; It is contended theca because their case has been fixed for trial in Aprn April, 1997 their pre-trial detention would have been unduly long. Mr Si also deposed to diff difficulties families and relatives of the applicants are facing while they are in custody.

The applicants have no right to Bail under s. 42(6) of the Constitution. However, under s. 4 of the Bail Act persons charged with wimurl murder are given the right to apply for Bail. And any suchication is decs decidey on those considerations specified in s. 9(1) of the Bail Act. (See Fred Keating’s C7;s Case). Stas opposed the applicatnicatn the basis of s. 9(1) (c) (i) and (iii) of the Bail Act.

Malaki Kongo is connected to the charge by allegations that he ked the deceased with a piece of iron pipe. Joe AkusiAkusi is amplicatlicated by his alleged presence when the deceased was attacked. He is further alleged to pave punched the deceased. Thecal report is availablelable on the applicant’s nal trial File but not tend tendered. Theicants do not dispute tute the cause of death. Because of its rnce, I conI consider iin the interest of justice tice that I refer to it. The report shows deatultedulted from a wound to the chest, causing collapse of tght lung and massive bleeding. There also other ther inju injuries, peripheral to the fatal wounds observed.

I am satisfhat the allegations consistnsisted of a serious assault and possession of “offensive weapons”. The accused have not denied the allegations in this application. I assume however that till will contest their involvement. The setting down eir case as a trial no doubt is based on instructions denying the alleged murder.

Al

Although the provision of s. 9(1) (c) hen esshed, there is a is a discretion in the Court to grant bail. Ths is on the appliapplicaplicants to show why their detention in custody is not justified (Re: Fred Keating’s Case). By the the accuseds are brre brought to trial in April, 1997 theld have spent over 12 monthmonths in custody if they are not released on bail. This is a relevant coratioration in their favour0; It is however not the sohe sole determining factor. One may bear nd also that,that, despite the long wait, case trialsaigani couw be w be expeditiously dealt with through case lase listings so that the accused are at least assured of being brought to on fdates. Ther There is no uncertaofty of their being ever brought to trial.

Besi>Besides, there is no evidence or suggestion that prolonged detention is adverse to their health, for instance. Similarly a person detained on a wilful murder charge, in my view should show cause that his prolonged detention would either prejudice his defence or deny him the opportunity to adequately prepare his defence. He ougso to show cause thae that his detention would put his social activities and his family welfare, employment, or business engagements in jeopardy. These are somthe matters ters that in my view are relevant in the applicant’s favour and ought to have been covered in their applications. Those family difficulties they each spoke of through their l in my view are not excepticeptional to them. I also do not see the urgency of such consideration when they have been in custody for some seven months now.

It was submitted that the applicants would comply with all bail conditions if granted bail. is a generic statement witt without substance. The applicants hot shown fown for instance, their capacity to comply with Bonditions of cash payment. Nor have proposed conditioditions they are prepared and cand capable of complying with.

I am not satisfied that they arey are likely to appear at their trial. Eacused has proposed a cloa close relative as his guarantor. I haated on other occasionasions that a guarantor to a bail application should be someone with some standing and with means, prbly futside the familyamily circles. In wilful murder cases, there should at least be adeq adequate guarantors in terms of status and means or in number of suitable candidates. In the end result, not acct accept the proposed guarantors as adequate in theumstances of the charge.

The applicants in my conclusion have not shown sufficient cause why their detention in custody i justified. I reject ject theiricationations. I order that theremanded pded pending their trial.

Lawyer for the State: P Mogish Public Prosecutor

Lawyer for the Accused: D Koeget A/Public Solicitor