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State v Mua [1997] PGNC 51; N1548 (25 April 1997)

Unreported National Court Decisions

N1548

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP NO. 194 OF 1997
THE STATE
v
KELLY MUA

Waigani

Batari AJ
24-25 April 1997

CRIMINAL LAW - Practice and Procedure - Bail Application pending committal for Trial - Offence of attempt murder - Onus of Proof - State to show one or more of considerations under s.9 of the Bail Act exist - exercise of discretion - Interest of Justice - Onus of proof on applicant - Onus not discharged.

Bail Application

This was an application for bail pending committal for trial on a charge of attempt murder.

Counsel:

J Waine for the Applicant

M Zurecnuoc and D Mark for the State

25 April 1997

BATARI AJ: The applicant was alleged to have stabbed his wife on 8 February, 1997 on her stomach with a knife once. He was restrained wh triedtried to stab her the second time. The charge of attempt r waer was laid on 10 February 1997 and he appeared to have in custody since. This application ail is bris brought pursuant to s.6 of the Bail Aail Act. The aant has put forwanumbanumber of reasons why he wahe wants to be released on bail pending his committal for trial:

1. ټ h60; he is the sole provioer for the welfare his two wives and tand the children.

2. That he woikesy hietf dch much longer in custody.

3. 160; That That he would unld undertake not to abscond bai

40;҈&ـ Th is not lnot likelyikely to c to commitommit any any offenoffence whilst on bail and he will make this undertaking in Court.

5. ټ That his life will will not be in immediate danger as he intends to reconcile his differences with the victim and her relati/p> <#160;;ټ That he will not interfere with witnesses.

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7.&#17. < ـ Teat h ahas a proposed guad guarantor.

8. ҈ That he is preparedpared to pay bail money charge imposed by the Court.

Co for tate/ndent has object to this appl applicatiication onon on a nu a number of contentions as set out in the affidavit of the Public Prosecutor. In the up counsel argued tued that a number of considerations under s. 9 (1) of the Bail Act has been proven against the applicant. specirounds as set out in p in paras (2) and (3) of the Public Prosecutor’s Affidavitdavit are summarised as follows:

1.; The applicant is not like y to appear at his trial, if gran granted, bail (s. 9 (1) (a)).

2. ҈ The alleged offencefence, constituting the offence in respect of which the applicant is currently detained consist of a serassaud poson offfensive weapon, being a knife adopted as a weapon (s. 9 (1) (1) (c) ((c) (i) &ai) & (mp; (iii)).

3. ҈& T60; that the appl applicant is likely to interfere with witnesses (s. 9 (1) (f)).

The effect of the Bail Act is thil shot besed unless the bailing authority is satisfied on reasonable grounds as s as to onto one or e or more of the considerations set out under s. 9. Those consideratare relevaelevant as to whether or not bail should be refused “in the interests of justice” under s. 42 (6) of the Constitution which gives the person arrested or detained for an offence (other than treason or wilful murder) the right to bail at all times.

I have considered the standard of proof in bail applications. I need not cor the informaformation available before me in detail and apply it on a higher standard. Nor doe technical rules ofes of eve apply in admission of facts. If I tisfied on reasonablenable grounds that one or moor more of the matters set out in s. 9 is lished, bail must be refused. There wever a disc discretscretion to grant Bail.

State’s first contention was that the applicant is not likely to appear at his trial. It was submittednalogy thay that the applicant had not responded to the summons and continually failed to attend court in a civil suit which the victim in this application had taken out against him in the lowurt. Counsel relied oied on that similar fact situation to argue the applicant is not likely to appear on his trial if granted bail. That argument in my view es speculative. There is no evi to show a ow a real likelihood of the applicant absconding bail. I am not satisfied that ground of objection is made out.

State has further sought to establish that the alleged oe consist of a serious assa assault and possession of an offensive weapon. The alleged facts directll implicated the accused to the stabbing of one Elsie Akena with a knife. On the basis of that ationation, the applicant is charged with the attempted murf the victim. The extent of the inju nots not known.&own. However, acts suggest the the accused had caused the victim anry to her stomach. Th0; The fact that he een been charged with attempt murder, suggest the injury was such that the victim could havd. Fr, the allegalleged locatlocation of the injury point to the grave nature of the alleged assault. It is open to inference the injury could have been fatal.

The applicant does not contest the attack or the athe act of stabbing and the use of a knife weapon. His contention, as I utandstand from his Counsel is that the assault and thed the use of a knife did not constitute a serious assault under s. 9 (1) (c) (i) & (iii) of the Bail Act. To stab another person with a knife on any part of his or her body is an act which is synonymous with inflicting open or deep cuts into the body or causing wounds to the body with instrumsuch as a knife. This quite usulead to grie grievous vous bodily harm and even death. The act abbing is thereforrefore a serious assault. The nature of attac the enhe ensuing injury to the body as being alleged here in my view has all the attributea serious assault. I am satisfied the State hate has has established that the alleged offence for which the applicant is being held in custody consisted of serious assault under the provision of s. 9 (1) (c) (I).

Further, the allegations show the offence arose within a marital relationship. In an Affidavit filed b lais lawyer, the applicant stated the victim was one of his two wives. However, he did not menanyn any pre-existing problem in the marriage. The State on ther hand fild filed Affis to show that immediately tely before the stabbing ie. about three days prior, the marriage relationship had been a subject of court ordehis revelation showed (i) a marital disharmony grave enoughnough to result in the dissolution of marriage; (ii) the restraining orders suggested violence and continuing threats of violence by the applicant; (iii) after the Court Orders were in force, the applicant was alleged to have committed this offence; and (iv) the marital discord had not been settled at the time of this application. The incident of violencinsgainst the victim as alleged on the charge also appear consistent with the conduct of the applicant which prompted the victim to seek protective orders from the lower court. The applicant ot disclosedlosed these facts to his lawyer in this application. Furthermore, it is apparent that he had defied court orders by allegedly committing the oe with which he is charged. There isng suggestioestionstion that the alleged victim is not safe if the applicant is granted bai60; In my view, substantialntial grounds exist to believe that the applicant is likely to interfere with the victim. I would refuse on this gros ground and on the grounds preceding.

Beyond this is the discretionary question of whether or not I should grail “in the interest of justice”. The onus is on thlicant tont to show thow that his detention in custody is not justified, as per Andrew, J in Re: Keating [1983] PNGLR 133 at p. 140.

I do not consider the applicant’s family welfa advanced, sufficiently jusy justify his immediate release on bail. The information before me suggest the victim and her children had left the matrimonial home days before she was attacked. ourt orders further show show she and her children had nothore to do with him. I also consider ear of losf losinlosing his job to be without basis. There is ng to show he hase has een terminated or that he w he would retain his job if released on bail. ndertaking to seek reconciconciliation inferentially des to exi aing animus between him and the relatives of thef the victims. What he submitted is only a possibility which might nentua there is indicatdication the relatives of the victim are still grieving the alleged assaulssault on her by the applicant. The ationo point to possibossibility of interference with the wthe witnesses and he has not shown to the contrary the likelihood of that ning.

In my conclusion, he has not shown special circumstances to sway my discretionetion in his favour. Bail is refused0; The appl applicant is at liberty to make further application under s.6 of the Bail Act at any stage of the committal proceedio this court or the Supreme Court.

Lawyer for the State: P Mogish Public Prosecutor

Lawyer for the Accused: Dirua Lawyers