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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 when he tried to stab her the second time. The charge of attempt murder was laid on 10 February 1997 and he appeared to have been in custody since. This application for bail is brought pursuant to s.6 of the Bail Act. The applicant has put forward a number of reasons why he wants to be released on bail pending his committal for trial:

1. That he is the sole provider for the welfare his two wives and the children.

2. That he would likely lose his job if detained much longer in custody.

3. That he would undertake not to abscond bail

4. That he is not likely to commit any offence whilst on bail and he will make this undertaking in Court.

5. That his life will not be in immediate danger as he intends to reconcile his differences with the victim and her relatives.

6. That he will not interfere with witnesses.

7. That he has a proposed guarantor.

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

Counsel for the State/Respondent has object to this application on a number of contentions as set out in the affidavit of the Public Prosecutor. In the upshot, counsel argued that a number of considerations under s. 9 (1) of the Bail Act has been proven against the applicant. The specific grounds as set out in paras (2) and (3) of the Public Prosecutor’s Affidavit are summarised as follows:

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

2. The alleged offence, constituting the offence in respect of which the applicant is currently detained consist of a serious assault and possession of an offensive weapon, being a knife adopted as a weapon (s. 9 (1) (c) (i) & (iii)).

3. That the applicant is likely to interfere with witnesses (s. 9 (1) (f)).

The effect of the Bail Act is that bail shall not be refused unless the bailing authority is satisfied on reasonable grounds as to one or more of the considerations set out under s. 9. Those considerations are relevant 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 consider the information available before me in detail and apply it on a higher standard. Nor does the technical rules of evidence apply in admission of facts. If I am satisfied on reasonable grounds that one or more of the matters set out in s. 9 is established, bail must be refused. There is however a discretion to grant Bail.

State’s first contention was that the applicant is not likely to appear at his trial. It was submitted by analogy 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 lower court. Counsel relied 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 is speculative. There is no evidence to show 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 offence consist of a serious assault and possession of an offensive weapon. The alleged facts directly implicated the accused to the stabbing of one Elsie Akena with a knife. On the basis of that allegation, the applicant is charged with the attempted murder of the victim. The extent of the injury is not known. However, the facts suggest the accused had caused the victim an injury to her stomach. The fact that he has been charged with attempt murder, suggest the injury was such that the victim could have died. Further, the alleged location of the injury point to the grave nature of the alleged assault. It is open to inference that the injury could have been fatal.

The applicant does not contest the attack or the act of stabbing and the use of a knife as a weapon. His contention, as I understand from his Counsel is that the assault and 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 instruments such as a knife. This quite usually lead to grievous bodily harm and even death. The act of stabbing is therefore a serious assault. The nature of attack and the ensuing injury to the body as being alleged here in my view has all the attributes of a serious assault. I am satisfied that the State 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 by his lawyer, the applicant stated the victim was one of his two wives. However, he did not mention any pre-existing problem in the marriage. The State on the other hand filed Affidavits to show that immediately before the stabbing ie. about three days prior, the marriage relationship had been a subject of court orders. This revelation showed (i) a marital disharmony grave enough 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 violence against 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 had not disclosed these facts to his lawyer in this application. Furthermore, it is apparent that he had defied court orders by allegedly committing the offence with which he is charged. There is strong suggestion that the alleged victim is not safe if the applicant is granted bail. In my view, substantial grounds exist to believe that the applicant is likely to interfere with the victim. I would refuse bail on this ground and on the grounds preceding.

Beyond this is the discretionary question of whether or not I should grant bail “in the interest of justice”. The onus is on the applicant to show 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 welfare as advanced, sufficiently 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. The Court orders further show she and her children had nothing more to do with him. I also consider his fear of losing his job to be without basis. There is nothing to show he has not been terminated or that he would retain his job if released on bail. His undertaking to seek reconciliation inferentially concedes to existing animus between him and the relatives of the victims. What he submitted is only a possibility which might not eventuate as there is indication the relatives of the victim are still grieving the alleged assault on her by the applicant. The indications also point to possibility of interference with the witnesses and he has not shown to the contrary the likelihood of that happening.

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

Lawyer for the State: P Mogish Public Prosecutor

Lawyer for the Accused: Dirua Lawyers