N3801

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 574 0F 2006

IN THE MATTER OF BAIL APPLICATIONS BY 61 REMANDEES OF BORAM CORRECTIONAL INSTITUTION EAST SEPIK PROVINCE

Wewak: Cannings J
2006: 30, 31 May

JUDGMENT

BAIL – nature of right to bail – Constitution, Section 42(6) – Bail Act, Sections 4 and 6 – exercise of discretion whether to grant bail – conditions and length of detention as relevant considerations – human rights of remandees.

A group of remandees at a gaol complained to a Judge about the conditions in which they were being detained and the length of time they had spent in custody without trial. A month later the Judge returned to the gaol to hear more details about the complaints, in the company of a lawyer from the Office of the Public Solicitor. A special court hearing was convened, devoted to hearing applications for bail from 61 remandees.

Held:

(1) In determining a bail application it is relevant to consider, amongst other things, the conditions in which the applicant has been detained and the length of time he or she has been remanded in custody.

(2) The worse the conditions of detention and the longer the period in custody, the more likely it will be that the interests of justice will require that bail be granted.

(3) Each application must be considered on its merits when determining – 

- whether to grant bail; and

- if bail is granted, the conditions applicable.

(4) As a result of the hearing, 50 of 61 applicants were granted bail, subject to conditions.

Cases cited

The following cases are cited in the judgment:

Bernard Juale v The State (1999) N1887
Fred Keating v The State [1983] PNGLR 133
Re Herman Kagl Diawo [1980] PNGLR 148
Re Thomas Markus (1999) N1931

Abbreviations

The following abbreviations appear in the judgment:

CJ – Chief Justice
DCJ – Deputy Chief Justice
eg – for example
GBH – grievous bodily harm
ie – that is; by which is meant
J – Justice
MP – miscellaneous proceeding
N – National Court judgments
No – number 
PNGLR – Papua New Guinea Law Reports
s – section 
SC – Supreme Court judgment
v – versus
VJ – Visiting Justice

Tables

The following tables appear in the judgment:

1	–	Determination of bail applications	
2	–	Summary of the State’s position	
3	–	Results of bail applications	
4	–	Bail tariff	
5	–	Standard bail certificate	

Terminology

In this judgment the terms "Correctional Institution", "Gaol", "Jail" and "Prison" are used interchangeably as they mean the same thing, even though "Correctional Institution" is strictly speaking the correct terminology as used in the Correctional Service Act.

BAIL APPLICATIONS

This is a ruling on applications for bail made under the Constitution and the Bail Act.

Counsel

J Mesa, for the applicants except No 31: Levi Ausomb, Lester Levi, James Mangiko and Boaz Joshua
M Bayam for No 31: Levi Ausomb, Lester Levi, James Mangiko and Boaz Joshua
J Wala, for the State

31 May, 2006 

1. CANNINGS J: INTRODUCTION: This is a ruling on applications by 61 remandees of Boram Correctional Institution near Wewak, East Sepik Province, for bail. A remandee is a person detained in custody awaiting trial or sentence. Bail is the legal process by which a remandee is released from custody pending their trial or sentence.

BACKGROUND

2. On 27 April 2006 I made a Visiting Justice visit to Boram Correctional Institution near Wewak. At that time a total of 280 detainees were in custody, 77 or 27.8% of whom were remandees. That seemed a very high number of remandees so I held a meeting with them. They complained about delays in getting their cases heard as there had not been a sitting of the National Court in Wewak for the last six months. Of the 77 remandees, 60 (78% of them) were awaiting trial in the National Court. The remainder were District Court remandees. There were 25, almost one-third, who had been in remand for more than a year. The scheduled National Court circuit in Wewak for June 2006 had been cancelled. It was not clear when the next sittings would be.

The remandees were very frustrated. They asked when a Judge would next be in Wewak so that they could ask for bail.

3. They also complained about the conditions of their detention. The remand compound is an old, run-down facility and very overcrowded. I inspected the dormitory in which they sleep.

4. I prepared a report of my visit and brought the problems raised by the remandees to the attention of the Chief Justice, who appointed me to run a ‘mini-circuit’ in Wewak, focussing on hearing bail applications. (Visiting Justice’s Report, Boram Correctional Institution, East Sepik Province, Thursday 27 April 2006, Visit No 1 of 2006).

5. On Monday 29 May 2006 I again visited the gaol. I was accompanied by a lawyer from the Public Solicitor’s office, Mr Jeffery Mesa. I again met with the remandees and explained that I was in Wewak to hear bail applications and that if they wanted to make an application they should meet with Mr Mesa and give instructions.

6. This was all done on short notice. I told Mr Mesa that I would not insist on the normal paperwork. A written application usually has to be filed in a registry of the National Court, a file reference has to be obtained and supporting affidavits by the applicant and guarantors have to be prepared, filed and served on the Public Prosecutor. These are proper, formal requirements of practice and procedure but they are not mandatory and I took the view that the court was faced with a very special set of circumstances in which the constitutional rights of many remandees appeared to be breached. Many had been detained in poor conditions for long periods without trial and the prospect of most of them getting a quick trial was low. If I were to insist on normal procedures being followed I would be unable to hear any applications. I indicated that I would hear oral applications and that I would give weight to the time spent in remand by an applicant.

7. Mr Mesa was at the gaol all day on Monday, taking instructions.

8. On Tuesday 30 May 2006 46 applications were listed for determination in a formal court hearing at Wewak. Some applications covered more than one applicant, where more than one person was charged with the same offence. Mr Mesa made 41 applications, Mr Marcus Bayam of Bayam Lawyers made one application, two were withdrawn and two were stood over to the next day. There was no appearance on behalf of the Public Prosecutor due to the short notice given of the hearing.

9. However, the next day, Wednesday 31 May 2006, the principal lawyer of the Public Prosecutor’s Madang office, Mr Jim Wala, arrived. I heard a further two applications from Mr Mesa. Then Mr Wala responded to the applications. He indicated in relation to each whether the State objected to bail; and in those cases where there was an objection, the grounds relied on.

THE LAW ON BAIL

Constitutional right

10. The law on bail is well settled. The Constitution, Section 42(6) (liberty of the person) states:

A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

11. The Constitution therefore creates a right to bail – unless the interests of justice require otherwise – in the case of a remandee charged with any offence other than wilful murder or treason. If a remandee is charged with wilful murder or treason, he or she can still be granted bail at the discretion of the Judge hearing the application. However, in those cases the presumption in favour of granting bail does not apply and it is more difficult to obtain bail (Fred Keating v The State [1983] PNGLR 133, Supreme Court, Kidu CJ, Kapi DCJ, Andrew J).

Bail Act

12. The Bail Act Chapter No 340 provides for bail to be granted more readily and gives effect to Section 42(6) of the Constitution. The relevant provisions for purposes of the current applications are Sections 4, 6, 9, 16 and 18.

13. Section 4 (only National Court or Supreme Court may grant bail in certain cases) provides that only the National Court or the Supreme Court can grant bail if a person is charged with one or more of the following offences:

- abduction;

- any offence in which a firearm (including an imitation firearm) is involved;

- any offence punishable by death;

- assault with intent to steal;

- break and enter a building or dwelling-house;

- burglary;

- kidnapping;

- murder;

- piracy;

- rape;

- robbery;

- stealing with violence; and

- wilful murder.

14. Section 6 (application for bail may be made at any time) provides that a bail application can be made at any time after a person has been arrested or detained or at any stage of a case.

15. Section 9(1) (bail not to be refused except on certain grounds) is very important. It lists ten circumstances in which bail can be refused. If none of them exist, bail must be granted. If one or more of them exist, the court hearing the application can still grant bail at its discretion (Fred Keating v The State [1983] PNGLR 133; Bernard Juale v The State (1999) N1887, National Court, Kirriwom J).

16. Section 9(1) states:

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:—

(a) that the person in custody is unlikely to appear at his trial if granted bail; or

(b) that the offence with which the person has been charged was committed whilst the person was on bail; or

(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

(d) that the person is likely to commit an indictable offence if he is not in custody; or

(e) it is necessary for the person's own protection for him to be in custody; 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. [Emphasis added.]

17. If the State or any other person with a legitimate interest in a bail application opposes bail, they bear the onus of showing why bail should not be granted (Re Herman Kagl Diawo [1980] PNGLR 148, Supreme Court, Kearney DCJ, Kapi J, Miles J).

17. Section 16 (reasons for refusing bail to be given and recorded) states that if bail is refused the bail authority (ie the court or person determining the application) must give its reasons for refusing bail. The Constitution, Section 42(7) is in similar terms.

18. Section 18 (bail may be granted subject to conditions) allows the bail authority to impose conditions of bail.

Applications where discretion is to be exercised 

19. The Bail Act does not say what matters the court should take into account if it finds that one or more of the circumstances in Section 9(1) exist and it becomes a matter of discretion whether to grant bail. So the court is entitled to take into account all the prevailing circumstances and to determine whether the interests of justice require that bail be granted. Two considerations stood out as particularly relevant in the present case.

20. First, the conditions of detention. This is important in view of the human rights provisions of the Constitution, which confer the following rights pertaining to the way in which remandees are to be treated:

- not to be submitted to physical or mental torture (s 36(1));

- no cruel or inhuman treatment (s 36(1));

- no treatment inconsistent with respect for the inherent dignity of the human person (s 36(1));

- the full protection of the law (s 37(1));

- to be presumed innocent (s 37(4)(a));

- to be treated with humanity and with respect for the inherent dignity of the human person (s 37(17));

- to be segregated from convicted persons (s 37(18));

- to be subject to separate treatment appropriate to their status as unconvicted persons (s 37(18));

- juveniles to be separated from mature-age remandees (s 37(19)); and

- juveniles to be accorded treatment appropriate to their age (s 37(19)).

21. If one or more of those rights is breached, this will work in favour of the granting of bail.

22. Secondly, the length of time in custody. This is important in view of the human rights provisions of the Constitution, which confer the following rights on anyone arrested, detained or charged, particularly remandees, giving effect to the principle that ‘justice delayed is justice denied’:

- to be informed promptly of the reasons for being arrested, detained and/or charged (s 42(2)(a));

- to be permitted, upon being arrested or detained, to communicate without delay with a family member or friend and a lawyer of his or her choice (s 42(2)(b));

- to be informed of his or her constitutional rights immediately on being arrested (s 42(2)(c));

- to be brought before a court or judicial officer without delay after being arrested or detained (s 42(3));

- most importantly, to be afforded a fair hearing within a reasonable time by an independent and impartial court (s 37(3));

- to be informed promptly, once charged, in a language he or she understands, and in detail, of the nature of the offence (s 37(4)(b));

- to have adequate time and facilities, once charged, for the preparation of his or her defence (s 37(4)(c));

- for the Chief Justice to make a detailed report on the case to the Minister for Justice, if the trial is not commenced within four months after the date of committal (s 37(14)); and

- to complain to a Judge that his or her detention is unlawful or unreasonable, particularly having regard to the length of the time on remand pending trial (s 42(5)).

23. If one or more of those rights is breached, this will work in favour of the granting of bail.

24. It is not a matter of the court simply being satisfied that there has been a breach of human rights and then concluding that there is a right to bail. These are all relevant considerations to be weighed in the balance in the exercise of discretion. Competing considerations, especially the existence, number and strength of the circumstances set out in Section 9(1), have to be weighed against the factors favouring the grant of bail.

25. However, the worse the conditions of detention and the longer the period in custody the more likely it is that bail will be granted.

CONDITIONS OF DETENTION AT BORAM CORRECTIONAL INSTITUTION

26. Mr Mesa submitted that when determining each application I should take into account the conditions in which the applicants were being detained at Boram. He highlighted the following matters:

- the remand compound is in an old, run-down, building, hot and poorly ventilated;

- toilet facilities are limited and unhygienic;

- the compound is overcrowded, a situation that has worsened in 2006 due to more people remanded in custody, while the National Court has not been sitting to hear bail applications;

- lack of mattresses and blankets – many remandees sleep on the concrete floor;

- food shortages, due to convicted prisoners in the gaol’s main compound being given priority;

- water shortages, due to convicted prisoners in the gaol’s main compound being given priority;

- poor diet, in particular lack of varied protein and no greens;

- lack of proper eating utensils;

- lack of regular medical attention – the gaol presently has no visiting medical officer and remandees are only taken to hospital if they are extremely ill; and

- high incidence of malaria, diarrhoea, dysentery and skin diseases such as scabies.

27. I raised many of these matters myself in the report of the VJ visit of 27 April 2006. The Gaol Commander, Senior Inspector Emil Arami, has not taken issue with them. He accepts that they are all major problems facing the gaol. The claims are not exaggerated. I deal with them as matters of fact.

RELEVANT CONSIDERATIONS

28. The conditions in which the applicants are being detained are very poor, for the reasons outlined in Mr Mesa’s submission. Their human rights have been breached particularly those who have been sick or injured and not given proper medical treatment. This is something that favours granting the applications.

29. As to the length of time in remand, this varies for each applicant. It is something I gave a lot of weight to when determining the applications. 

30. There are six other matters I took into account. Except where indicated:

- this bail application is the first by each applicant;

- each application was supported by the provision of the names, occupations and addresses of two proposed guarantors;

- the applicant has not escaped from custody or attempted to escape;

- each has a good record of behaviour while in custody; and

- granting the applications will alleviate the overcrowding problem at the gaol, enhance the level of security and save costs for the State.

31. All these factors weighed in favour of granting bail.

DETERMINATION OF BAIL APPLICATIONS

32. The following table summarises my determination of each application.

Column 1 gives the number of the application. Two applications were withdrawn, however they still appear in the table.

Column 2 contains the applicant’s name.

Column 3 provides the applicant’s age. This was a relevant factor in some cases, where the applicant is a juvenile or an old person.

Column 4 states the charge.

Column 5 gives the time in custody.

Column 6 provides the special factors relied on by the applicant – in addition to the conditions and length of time in custody – in support of their application.

Column 7 indicates whether the State, through the submissions of Mr Wala, opposed bail. If bail was opposed, the type of circumstances claimed to exist in Section 9(1) of the Bail Act is stated.

The last column, 8, states my decision, reasons and, where bail is granted, the amount of bail and the place of reporting.

TABLE 1
DETERMINATION OF BAIL APPLICATIONS

No 	Name	Age	Charge	Time in 
custody	Factors in support of bail	State’s
position	Decision 	
1	(a) Ronald Sikinapi, 
(b) Andrew Ganara, 
(c) Noah Angua Kundi,
(d) Allan Sikinapi
& 
(e)
Thompson Pius 	36

28

31

34

32
	Murder	7 months,
2 weeks	First bail application refused by Davani J in Waigani – but changed circumstances are now being brought to the attention of the court, viz poor and deteriorating conditions in remand compound – also threats made to lives of applicants by relatives of the deceased, who are prisoners at Boram main compound. 	Bail opposed – s 9(1)(c)(i) and (ii) – serious assault resulting in death and threats of violence – also s 13(2) – applicants, having been refused bail by a Judge of the National Court are entitled to immediately apply to the Supreme Court. 	Granted – it is permissible for a Judge to re-visit another Judge’s earlier refusal of bail, without requiring the applicant to apply to the Supreme Court, if there has been a change in relevant circumstances (Re Thomas Markus (1999) N1931, National Court, Injia J) – here there has been a change in relevant circumstances – longer time in custody without trial; poor conditions of detention; threats to applicants’ lives while in custody – discretion exercised in favour of applicants – cash bail K300.00 imposed – surety of K200.00 for each guarantor – report to Maprik Police Station every Friday.	
2	Gilbert Ayong 	
16	Murder	1 month,
3 weeks	Juvenile – was attending Brandi High School at time of arrest (grade 10) – the alleged victim is his aunty – applicant will raise defence of accident at trial – his family does not want him in custody. 	Does not object to bail.	Granted – bail not opposed – poor conditions – juvenile – cash bail K300.00 – surety of K200.00 for each guarantor – report to Dagua Court House every Monday. 	
3	(a) Dennis
Piringduo 
& 
(b) Solomon Waiawi 	
25

16	Minor offence	Unknown	Application withdrawn – upon revelation that the applicants have recently been sentenced by District Court.	Nil	Nil	
4	Alex Poindi 	27	Murder	1 year,
6 months,
1 week	Has suffered from malaria. 	Does not object to bail.	Granted – bail not opposed – very long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Tangori Police Station every second Friday.	
5	David Honoke 	
21	Armed robbery	7 months,
2 weeks	Suffers pain due to boyhood knee injury caused by rusty nail. 	Does not object to bail.	Granted – bail not opposed – poor conditions – long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Dagua Court House every Monday.	
6	Stanley Yanke 	
20	Sexual penetration of a child under the age of 16 years. 	8 months,
2 weeks 	Has had health problems – malaria, diarrhoea, fading vision – wants to reconcile with complainant’s family. 	Does not object to bail.	Granted – bail not opposed – poor conditions – long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Dagua Court House every Monday. 	
7	Manual Niambori 	
22	Rape	1 year,
4 months,
3 weeks	Has health problems – asthmatic – claims to have been raped in the remand compound.	Does not object to bail.	Granted – bail not opposed – poor conditions – very long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Tangori Police Station every second Friday.	
8	Gilbert Bukenien 	
23	Murder	1 year,
1 month,
2 weeks	Married with wife and five children – breadwinner – concerned about welfare of family.	Does not object to bail.	Granted – bail not opposed – poor conditions – very long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Yangoru Police Station every second Friday.	
9	Ashley Nalaik 	
25	Rape	2 months	Is concerned about his safety in gaol as his brother was the arresting officer at Vanimo for a number of prisoners serving time at Boram. 	Does not object to bail.	Granted – bail not opposed – poor conditions – cash bail K300.00 – surety of K200.00 for each guarantor – report to Yangoru Police Station every second Friday.	
10	Benny Paul Sone 	
68	Rape	5 months	Old man – health problems – poor eyesight – asthmatic. 	Does not object to bail.	Granted – bail not opposed – poor conditions – long time in custody without trial for old man with health problems – cash bail K300.00 – surety of K200.00 for each guarantor – report to Angoram Police Station every Monday.	
11	Desi Michael 	37	Rape 	1 year,
3 weeks	Complainant is his wife – they have since reconciled – he is the family’s breadwinner and they are missing his support.	Initially opposed bail – s 9(1)(f) – likely to interfere with witnesses – however, objection withdrawn upon presentation of statutory declaration from applicant’s wife re reconciliation – also sighted supporting statement from arresting officer.	Granted – bail not opposed – poor conditions – very long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Dagua Court House every Monday.	
12	(a) Martin Ningigan
& 
(b) Kevin Anis 	
25 

24	Armed robbery	3 years, 
6 months	Convicted by National Court – won appeal in Supreme Court in 2004 – re-trial ordered – trial not held within reasonable time since appeal judgment. 	Does not object to bail.	Granted – bail not opposed – poor conditions – very long time in custody overall, and 18 months have passed since order for re-trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Yangoru Police Station every second Friday.	
13	Roy Maru 	19	Wilful murder	1 year,
10 months	Application withdrawn – later dealt with in a special hearing on remandees with perceived psychiatric problems. 	Nil	Nil	
14	Robin Vee 	31	Sexual penetration of a child under the age of 16 years.	3 months,
2 weeks	Concerned about his family; wife and three children – complainant was aged 15 at time of incident – she lives in a different place to where applicant will reside.	Does not object to bail.	Granted – bail not opposed – poor conditions – cash bail K300.00 – surety of K200.00 for each guarantor – report to Maprik Police Station every Friday.	
15	David Kauken 	
28	Sexual penetration of a child under the age of 16 years.	7 months,
1 week	Has had health problems – poor vision brought on by poor diet and unhygienic conditions. 	Does not object to bail.	Granted – bail not opposed – poor conditions – long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Dagua Court House every Monday.	
16	Petrus Ningiga 	
40 	Incest 	1 year
	Complainant is the daughter of his first of two wives – she is about 17 years old – claims the matter is in the process of being resolved through payment of compensation.	Opposes bail – s 9(1)(f) – likely to interfere with witnesses – no proof that applicant and complainant have reconciled.	Adjourned – applicant given 14 days to file further evidence re reconciliation to support application or to propose alternative living arrangements, eg applicant and complainant to stay in different villages. 	
17	Bowen Freddy Yuasi 	
27	Break, enter and steal	8 months,
2 weeks	Though granted bail previously and arrested under a bench warrant, that arose due to confusion re National Court callover – the offence is not relatively serious and does not warrant continued remand.	Does not object to bail.	Granted – bail not opposed – poor conditions – long time in custody without trial – explanation given for previous breach of bail –cash bail K200.00 – surety of K100.00 for each guarantor – report to Dagua Court House every second Friday.	
18	Augustine Langu 	
37	Rape	1 year,
3 weeks	Suffered from poor health while in custody – diarrhoea, coughing fits, malaria – claims to have become a born-again Christian while in custody.	Does not object to bail.	Granted – bail not opposed – poor conditions – very long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Maprik Police Station every second Friday.	
19	Vincent Anton 	
45	Wilful murder and attempted robbery.	3 years
	Convicted in National Court in February 2004 – won appeal to Supreme Court in November 2005 – re-trial ordered – prior to conviction, he had been on bail of K2,000.00 and had complied with bail conditions.	Bail opposed – s 9(1)(a) – unlikely to appear at trial – also s 9(1)(c) – serious assault resulting in death, use of firearms.	Granted – State failed to discharge onus under s 9(1)(a) – s 9(1)(c) satisfied but discretion whether to grant bail exercised in favour of the applicant – very long time in custody – more than six months have passed since re-trial ordered – has had conviction quashed – cash bail K400.00 – surety of K300.00 for each guarantor – report to Drekikir Police Station every second Friday.	
20	Misik Kilik 	33	Murder	1 year,
9 months	Has health problems – arthritis – paralysis in legs. 	Does not object to bail.	Granted – bail not opposed – poor conditions – very long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Maprik Police Station every second Friday.	
21	(a) Gideon Waranbina 
& 
(b) Felix Pilai 	
20

18	Rape	1 year,
6 months	The arresting officer supports their bail application as they have co-operated fully in the police investigation.	Does not object to bail.	Granted – bail not opposed – poor conditions – very long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Yangoru Police Station every second Friday.	
22	Les Kuse 	18	Murder	1 year,
4 months,
1 week	No one in village to look after his elderly parents – concerned about their welfare.	Does not object to bail. 	Granted – bail not opposed – poor conditions – very long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Maprik Police Station every Friday.	
23	Bill Kimia 	31	Arson	1 year,
6 months	Has a non-specific mental disorder – which has come on during custody.	Does not object to bail	Granted – bail not opposed – poor conditions – very long time in custody without trial – cash bail K200.00 – surety of K100.00 for each guarantor – report to Maprik Police Station every Friday.	
24	Robert Nehuasi 	
42	Incest 	6 months,
3 weeks	Arthritis sufferer – needs regular medical attention.	Opposes bail – alleged victim is his 8-year-old daughter – s 9(1)(f) – likely to interfere with witnesses.	Adjourned – applicant given 14 days to file further evidence re reconciliation to support application or to propose alternative living arrangements, eg applicant and complainant to stay in different villages.	
25	Selestine Robert 	
25	Rape 	1 year,
2 months,
2 weeks	Has had health problems – malaria, diarrhoea, dizzy spells – complainant lives in a different village.	Does not object to bail.	Granted – bail not opposed – poor conditions – very long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Maprik Police Station every Friday.	
26	Kenneth Yaluangi 	
30	Rape 	9 months,
3 weeks	Concerned about his brother, who is blind – parents are deceased – has had health problems – diarrhoea – claims to have changed his life and become born-again Christian.	Does not object to bail.	Granted – bail not opposed – poor conditions – long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Maprik Police Station every second Friday.	
27	Herman Mensen 	
30	Rape 	1 year,
4 months,
3 weeks	The complainant is the applicant’s wife – she is no longer interested in reconciling with him.	Does not object to bail.	Granted – bail not opposed – poor conditions – very long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Angoram Police Station every Friday.	
28	Roy Enoch 	42	Arson	5 months,
3 weeks	Relatively minor offence – burned down his own house after argument with wife – wife now visits him in gaol.	Does not object to bail.	Granted – bail not opposed – poor conditions – cash bail K200.00 – surety of K100.00 for each guarantor – report to Dagua Court House every second Friday.	
29	Thomas Sawiembi 	
55	Incest 	1 year,
1 month,
2 weeks	The complainant is his daughter from his first of two wives – the complainant is now studying at University of Goroka and will reside in Maprik when on holidays.	Opposes bail – Bail Act, s 9(1)(f) – likely to interfere with witnesses – also s 9(1)(a) – the applicant breached bail before and was re-arrested due to bench warrant. 	Granted – State failed to discharge onus under s 9(1)(a) or s 9(1)(f) – any event, discretion exercised in favour of the applicant – very long time in custody without trial – applicant will not reside with complainant – also the applicant is of an advanced age – bail K300.00 – surety of K200.00 for each guarantor – report to Yangoru every Friday.	
30	Ronald Klaitus 	
30	Armed robbery 	3 years,
3 months,
1 week	Suffers constant, intense pain due to assault by police – requires regular medical care.	Does not object to bail.	Granted – bail not opposed – poor conditions – extremely long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Yangoru Police Station every Friday.	
31	(a) Levi Ausomb, 
(b) Lester Levi, 
(c) James Mangiko 
& 
(d) Boaz Joshua 	
54

31

40

32
	Wilful murder	1 year,
3 months,
2 weeks	Claims that there is little likelihood of further disturbances or risk to the local community.	Opposes bail – s 9(1)(c)(i) –serious charge – also s 9(1)(a) – applicants come from Ambunti, a long way from Wewak – unlikely to appear at trial.	Granted – the State failed to discharge onus under s 9(1)(a) – s 9(1)(c)(i) satisfied but discretion exercised in favour of the applicant –very long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Ambunti Police Station every second Friday.	
32	Wapingin Kuse 	
25	Grievous bodily harm	9 months,
1 week	Not a threat to community – has reconciled with family of victim and paid compensation.	Does not object to bail.	Granted – bail not opposed – poor conditions – long time in custody without trial – cash bail K200.00 – surety of K100.00 for each guarantor – report to Maprik Police Station every Friday.	
33	Anton Wanu 	45	Murder	11 months
	Has had health problems – malaria and diarrhoea.	Does not object to bail. 	Granted – bail not opposed – poor conditions – long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Dagua Court House every second Friday.	
34	Philip Yom 	43	Wilful murder	10 months,
3 weeks	Has had health problems – scabies on hands and groin – not taken to hospital until very ill – not a threat to community – will raise defence of self-defence at trial.	Opposes bail – very serious charge – s 9(1)(c)(i) and (ii) – very serious assault and threats of violence resulting in death – others have waited longer than him.	Granted – the State discharged the onus under s 9(1)(c) but discretion exercised in favour of the applicant – poor conditions (plus health problems) – long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Yangoru Police Station every second Friday.	
35	Norman Daniel 	
24	Rape	1 year,
1 month,
2 weeks	Is trying to reconcile with complainant.	Does not object to bail.	Granted – bail not opposed – poor conditions – very long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Yangoru Police Station every second Friday.	
36	Valentine Saka 	
25	Break and enter	1 month,
2 weeks	Relatively minor offence – was previously on District Court bail which was revoked after he was involved in a fight, which he says he did not cause.	Does not object to bail.	Granted – bail not opposed – poor conditions – relatively minor offence – cash bail K200.00 – surety of K100.00 for each guarantor – report to Dagua Court House every Friday.	
37	Peter Pagiri Ikinas 	
24	Incest 	7 months,
2 weeks	Not relatively serious – complainant is his sister, who has since married.	Does not object to bail.	Granted – bail not opposed – poor conditions – long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Dagua Court House every Monday. 	
38	Kuku Lingkana 	
22	Armed robbery 	6 months,
1 week	Food and water shortages in remand compound.	Opposes bail – s 9(1)(c)(ii) and (iii) – threat of violence and use of firearms.	Granted – s 9(1)(c) satisfied but discretion exercised in favour of the applicant – poor conditions – long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Yangoru Police Station every second Friday.	
39	James Salangi 	
33	Wilful murder	5 months,
3 weeks	Complains generally about conditions of detention – complains about fights in the gaol.	Opposes bail – s 9(1)(c)(i) and (ii) and s 9(1)(d) – very serious assault resulting in death – likely to re-offend – interests of justice require that community be protected.	Granted – s 9(1)(c) satisfied but not s 9(1)(d) – however, discretion exercised in favour of the applicant – cash bail K400.00 – surety of K300.00 for each guarantor – report to Yangoru Police Station every second Friday.	
40	(a) Limen Kongu 
& 
(b) Samson Yarumei 	
21

20	Attempted murder 	4 months,
2 weeks	Complain generally about poor conditions of detention – not taken to hospital when sick.	Does not object to bail – downgrade of charge to grievous bodily harm likely.	Granted – bail not opposed – poor conditions – cash bail K300.00 – surety of K200.00 for each guarantor – report to Dagua Court House every second Friday.	
41	Silas Bangiromo 	
20 	Rape	3 months,
2 weeks	Was a school student, doing grade 8, at time of arrest – a young man – first time to be exposed to prison life – risk of adverse influences by hardened criminals.	Does not object to bail.	Granted – bail not opposed – poor conditions – cash bail K300.00 – surety of K200.00 for each guarantor – report to Tangori Police Station every second Friday.	
42	Allan Mondi 	20	Murder	1 month,
3 weeks	Concerned about family – wife and child – complains generally about conditions of detention. 	Opposes bail – s 9(1)(c) – serious assault resulting in death – not a long time in custody.	Granted – s 9(1)(c) satisfied – however, discretion exercised in favour of the applicant – young man – cash bail K300.00 – surety of K200.00 for each guarantor – report to Pagwi Police Station every second Friday.	
43	Kalu Gura 	46	Grievous bodily harm	5 months
	Wants to reconcile with victim – unlikely to re-offend.	Does not object to bail.	Granted – bail not opposed – poor conditions – cash bail K200.00 – surety of K100.00 for each guarantor – report to Yangoru Police Station every second Friday.	
44	(a) Robin Haimbri, 
(b) Bruce Nungui 
& 
(c) Jimmy Kamilus 	
25
 
25

25	Armed robbery	3 months
	Complain generally about conditions of detention.	Opposes bail – serious charge –s 9(1)(c)(ii) and (iii) – threats of violence and use of firearms – three co-accused have already escaped from custody and been recaptured.	Refused – ss 9(1)(a) and 9(1)(c)(ii) and (iii) satisfied – three co-accused have already escaped, suggesting that there is a likelihood the applicants will not appear at trial if granted bail – also, threats of violence and use of firearms.	
45	(a) Wangiku Kwara, 
(b) Jonathan Kwara
 & 
(c) Anton Kitane 	
24

25

30	Wilful murder	2 months,
1 week	Complain generally about conditions of detention.	Opposes bail – s 9(1)(c) – very serious assault resulting in death of victim – s 9(1)(e) – likelihood of retaliation by relatives of deceased.	Refused – charge of wilful murder, thus presumption in favour of bail does not arise – ss 9(1)(c) and 9(1)(e) satisfied – applicants should remain in custody for their own protection – relatively short time in custody.	
46	Juanis Jalkue	37	Murder 	2 years,
3 months, 
3 weeks	Complains generally about conditions of detention – concerned about welfare of family.	Does not object to bail.	Granted – bail not opposed – poor conditions – extremely long time in custody without trial – cash bail K300.00 – surety of K200.00 for each guarantor – report to Yangoru Police Station every second Friday.	

Summary

33. The State’s position on the applications is summarised in table 2. The results of the applications are summarised in table 3.

34. The State did not oppose most of the applications, evidently because most applicants had spent lengthy periods in remand, in poor conditions. I still considered each of those applications on its merits before deciding to grant bail.

35. As for the applications opposed by the State, each objection was properly made under one or more of the provisions of Section 9(1) of the Bail Act. However, I still had a discretion to exercise. I concluded in all but two cases that the objections would not be sustained and that the interests of justice required that bail be granted.

TABLE 2
SUMMARY OF THE STATE’S POSITION

Category	Applications	Remandees	
Not opposed	32	35	
Opposed	12	23	
Withdrawn	2	3	
Total	46	61	

TABLE 3
RESULTS OF BAIL APPLICATIONS

Category	Applications	Remandees	
Granted 	40	50	
Adjourned	2	2	
Refused	2	6	
Withdrawn	2	3	
Total 	46	61	

CONDITIONS OF BAIL

36. For each successful application, a bail certificate and a guarantor’s certificate (one for each guarantor) were prepared. As the bulk of the applicants were not fluent in English, I issued the certificates in Tok Pisin. Ten standard bail conditions were imposed, covering:

1. amount of cash bail;

2. name and responsibilities of guarantors;

3. regular reporting;

4. attendance at call-overs;

5. place of residence;

6. restrictions on movement;

7. attachment to church;

8. non-interference with State witnesses;

9. no alcohol or drugs; and

10. keeping peace and good behaviour.

37. In fixing the amount of cash bail, I considered each case on its merits and applied the tariff set out in table 4.

TABLE 4
BAIL TARIFF

Charge	Cash bail
(K)	Surety (amount to be paid
by each guarantor if bail broken) (K)	
Wilful murder	400.00	300.00	
Murder	300.00	200.00	
Sexual penetration of child	300.00	200.00	
Rape 	300.00	200.00	
Incest 	300.00	200.00	
Armed robbery	300.00	200.00	
Grievous bodily harm	200.00	100.00	
Arson	200.00	100.00	
Break and enter/and steal	200.00	100.00	

38. Table 5 shows the standard bail certificate that was issued. Column 1 shows the standard form used. Column 2 provides the English translation.

TABLE 5
STANDARD BAIL CERTIFICATE

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Bail Act 1977

BAIL CERTIFICATE

GO LONG …….. bilong ples ……………. insait long …………….. Distrik, ……………. Provins. OLSEM yu kisim sas pinis long na yu mas kamap long Wewak Nesonal Kot long olgeta taim kot i kamap long Wewak.

Dispela pepa i makim olsem yu inap long kisim bail insait long ol dispela kondisons:

1. Kes bail em K………. mas baim long Eria Finens Opis. 

2. Olsem ……………………………………. emi garanto husait bai givim tok olrait long lukluk long man i kisim bail mas kamap long taim na ples kot bilong em bai kamap na bai bihainim olgeta kondisons bilong bail na bambai tok olrait long baim K…....... i go long Gavman sapos man kisim bail i no kamap long kot o ino bihainim ol narapela kondisons bilong bail.

3. Mas ripot igo long ………………. Polis Steson o ……………. Kot Haus olgeta ……………………….. namel long 8 kilok long monin na 4 kilok long apinun.

4. Mas kamap long Nesonal Kot long olgeta taim igat kol ova bilong kriminal keses i kamap long Wewak.

5. Mas stap tasol long ………………………. na tambu tru long go na stap long narapela hap taim i no gat tok olrait bilong Jas o Sinia Majistret.

6. Yu mas noken lusim East Sepik Provins na go long narapela hap taim yu no kisim tok olrait bilong Jas o Sinia Majistret.

7. Mas i go olgeta taim insait long wan wan wik long wanpela haus lotu na halivim long ol wok em Sios yet bai makim na givim igo long em..

8. Tambru tru long go klostu o tromoi toktok o bagarapim ol witnes bilong Gavman long kot bilong em o long kot bilong ol narapela lain NA LONG MAKIM TOK mas no ken tru ………………………………………….. 

9. Tambu tru long dring bia, hom bru na smokim spak brus.

10. Long olgeta taim, bambai em i mas bihainim pasin bilong stap bel isi, gutpela sidaun na wokabaut long gutpela rot tasol.

Dated the 31st day of May 2006

____________________
JUSTICE CANNINGS

Toksave:  Yu mas lukautim na holim gut dispela bail pepa wantain yu olgeta taim.
	THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Bail Act 1977

BAIL CERTIFICATE

TO [the applicant] of [address] East Sepik Province. WHEREAS you have been charged with [offence] and you are required to be present at the National Court at Wewak on the times required.

This is to certify that you are entitled to bail on the following conditions:

1. Cash bail of [amount] shall be paid to the Area Finance Office. 

2. [names of guarantors] are your guarantors who shall undertake to see that you appear at the time and place set for trial and comply with all conditions of bail and shall undertake to pay [amount of surety] to the State if you fail to appear at trial or fail to comply with any condition of the bail.

3. You must report to the [police station/courthouse at [place] every [day] between the hours of 8:00 am and 4:00 pm.

4. You must attend the National Court at Wewak whenever there is a general callover of criminal cases for East Sepik Province.

5. You must reside at [village/town] East Sepik Province and you cannot reside elsewhere without the written approval of a Judge or a senior Magistrate.

6. You must not leave East Sepik Province without the written approval of a Judge or senior Magistrate.

7. You must attend the ……… church at ……… at least once each week and assist the church in its community activities. 

8. You must not approach or talk to or interfere with any potential State witnesses in the trial. 

9. You must not consume alcohol or take any intoxicating drugs.

10. You must keep the peace and be of good behaviour at all times. 

 Dated the 31st day of May 2006
____________________
JUSTICE CANNINGS

Note: You are required to keep this certificate in your possession at all times.	

CONCLUSION

39. Fifty of the 61 applicants were granted bail. It is now up to each successful applicant and each guarantor appointed by the court to do the right thing, and ensure that all bail conditions are met until each applicant’s trial is heard and their case concluded.

40. I thank the lawyers involved in the bail hearing who appeared at short notice and assisted greatly in the efficient disposition of so many bail applications in a short space of time.

Ordered accordingly.

____________________________

Public Solicitor/ Bayam Lawyers: Lawyers for the applicants
Public Prosecutor: Lawyer for the State