N3511

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 414 OF 2008

IN THE MATTER OF THE BAIL ACT CHAPTER 340

AND

IN THE MATTER OF SECTION 42(6) OF THE CONSTITUTION

BETWEEN

MAPI MECK, POTAPE ALUNGI & ANGAI TAMBA
Applicants

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Mendi: Makail, AJ
2008: 13 October
: 15 October

CRIMINAL LAW - Bail - Applicants charged with attempted murder & arson - Criminal Code - Sections 304 & 436(f) - Alleged offences arose from a customary land dispute where oil project is located - Whether exceptional circumstances shown - Innocence of applicants not an exceptional circumstances - Request for early release to prepare defence not an exceptional circumstances - Health condition of applicants considered exceptional circumstances - Health condition of applicants not raised - Long bench warrant list - A factor operating against grant of bail - Failure to show continued detention in custody unjustified - Application refused - Constitution - Section 42(6) & 37(4) - Bail Act - Sections 6 & 9.

Cases cited:

Re Fred Keating -v- The State [1983] PNGLR 133
Re Kou Kua [1984] PNGLR 22
Bernard Juali -v- The State (1997) N1887
Michael Aia & Michael Maneba -v- The State (2001) N2124
John Raikos -v- The State (2001) N2040
Steve Lester -v- The State (2001) N2044
Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27 February 2008)

Counsel:

Mr P. Yange, for the Applicant
Mr J.Kesan, for the Respondent
 
RULING ON APPLICATION FOR BAIL

15 October, 2008

1. MAKAIL AJ: The three Applicants have been charged with one count of attempted murder contrary to section 304 of the Criminal Code and one count of arson contrary to section 436(f) of the Criminal Code after being arrested and detained at the Mendi Police Station by police on 15 July 2008.

2. Pending the committal proceedings to take place, they apply for bail pursuant to section 42(6) of the Constitution and section 4 of the Bail Act based on their application filed on 3 October 2008. 

BRIEF FACTS

3. From the Brief Statement of Facts presented by the State, the two sub clans of Homa village, called Perri and Kondo had a customary land dispute over the land on which sits the North West Moran 12, 13, and 14 oil heads. They also had a dispute over the Chairmanship of the association representing their interest in the oil project. The Applicants are from the Kondo sub clan.

4. The dispute started 8 years ago since the oil project started. The National Government and Oil Search Limited recognized Perri sub clan as the legitimate land owning group and all benefits like royalties etc were given to this sub clan. The Applicants’ sub clan took the matter to the National Court and on 14 July 2008, the National Court at Waigani ruled in favour of the Perri sub clan.

5. The State alleges that when the news of the National Court decision reached the village of the Applicants, it did not go down well with the members of the Kondo sub clan. The State further alleges that the Applicant, Mapi Meck Muli organized an urgent meeting of the Kondo sub clan and directed his clansmen to kill anyone at Moran 14 rig site and burn machinery and equipment of the company constructing the Homa-Tari road.

6. The State makes serious allegations against the three Applicants, Mapi Meck Muli, aged 20, Potape Alungi, aged 19 and Angope Tamba aged 18 in that on 15 July 2008, they were each armed with home made shot guns and a container of petrol and went to North West Moran 14 to kill anyone there. When they arrived, the Applicant Mapi Meck Muli shot at one of the employees of Oil Seach Limited, called Steven Undula. Fortunately for Steven, some of the pellets struck him but he survived. Another of the employee called Peamu Tengu also sustained injuries from the same gun shot.

7. The State further alleges that the Applicants ran to the road constructions site and held up the employees of the road construction company. They proceed to pour petrol and set fire on one of the dump trucks and another truck on the site. Both trucks were completely burnt down. It is estimated that the total value of the truck is K4 million.
They were apprehended in the village and brought to Mendi where they were detained at Mendi Police Station. The Applicants vigorously deny these two charges and say that they did not commit these offences. They say that the charges were fabricated against them because of the long outstanding land dispute between them and Perri sub clan. 

APPLICANT’S SUBMISSIONS

8. The Applicants rely on the following Affidavits:

1.	Affidavit of Mapi Handape on 2 October 2008 and filed on 3 October 2008;

2.	Affidavit of Potabe Alungi sworn on 2 October 2008 and filed on 3 October 2008;

3.	Affidavit of Angai Tambi sworn on 2 October 2008 and filed on 3 October 2008; 

4.	Affidavit of Guarantor Nelson Langipe sworn on 2 October 2008 and filed on 3 October 2008;

5.	Affidavit of Guarantor Elvis Alunga on 2 October 2008 and filed on 3 October 2008; and

6.	Affidavit of Guarantor Pastor Max Taro on 2 October 2008 and filed on 3 October 2008.

9. Mr Yange submits that the Applicants should be granted bail because first they deny committing these offences. They say that the charges against them were fabricated by their enemies so that the police may arrest them. This was done to sabotage their plans to pursue their dispute with their enemy over a customary land in their village.

10. Secondly, he submits that it is in the Applicants’ interest that they be released so that they will prepare their defence for their trial. If released on bail, they will live with one of the guarantors, Nelson Langipe in Mendi to await their trial and also to prepare their defence.

11. For these reasons, he submits bail should be granted to the Applicants. Mr Yange did not draw my attention to any case authorities to support his proposition that denial of the charges (offences) is a ground for the grant of bail nor did he cite any case authorities to support his submission that the need to prepare their defence of the charges is a ground for grant of bail.

12. In the event that the Court grants bail, he says that the Applicants are prepared to submit to any strict conditions of bail that the Court may impose on them including a condition that they remain in Mendi until the date of trial.

RESPONDENT’S SUBMISSIONS

13. The State opposes the application for bail. Mr Kesan of counsel for the State submits that the three Applicants are not suitable candidates for bail because they have been accused of committing attempted murder and arson which are two very serious offences under sections 304 and 436(f) of the Criminal Code.

14. Surely, from Brief Statement of Facts, the considerations set out in section 9(1) of the Bail Act are present in their case and they are disqualified unless it can be shown that their continued detention in custody is unjustified. He relies on the Affidavit of Detective Sergeant Epara Piuk sworn and filed on 10 October 2008 and the Brief Statement of Facts to oppose the application.

15. The grounds for opposing bail are as follows:

1.	The Applicants are unlikely to appear before the Court if granted bail. This is because first, they hail from a remote village in Tari of the Southern Highlands Province, thus accessibility to locate them in the event that they abscond bail are very slim. He relies on section 9(1)(a) of the Bail Act and the evidence in paragraph 6(f) of the Affidavit of Detective Sergeant Epara Piuk.

2.	The offences the Applicants are alleged to have committed consists of serious assault, threat of violence to another person and the use of offensive weapons like homemade shotguns under section 9(1)(c)(i)-(iii) of the Bail Act. He submits that there is evidence before the Court by way of paragraph 6(e) of the Affidavit of Detective Sergeant Epara Piuk and the Brief Statement of Facts which describes the circumstances giving raise to the alleged offences of attempted murder and arson. Thus, the Applicants are not suitable candidates for bail under section 9(1)(c)(i)-(iii) of the Bail Act.

3.	The Applicants are likely to commit further indictable offences. He refers to paragraph 6(g) of Affidavit of Detective Sergeant Epara Piuk where he states that the Applicants are dangerous persons and are most likely to sabotage the operations of Oil Search Limited at the oil project site if released on bail. Furthermore, he submits that the Applicants are most likely to interfere or fight with the members of Perri sub clan if released on bail. For these reasons, he submits that the Applicants have failed to show that section 9(1)(d) of the Bail Act did not exist, thus they are disqualified for these reasons.

4.	The Applicants are likely to interfere with the State’s witnesses. Here, Mr Kesan submits that because the police investigations into the alleged offences are pending, there are reasonable grounds to believe that the Applicants will interfere with the witnesses of the State if granted bail. He relies on section 9(1)(f) of the Bail Act. 

THE LAW

16. According to section 4(1) of the Bail Act, only the Supreme and National Courts can entertain applications for bail involving serious offences like armed robbery. It is trite law that whilst the Court has a wide discretion to admit an applicant to bail even where one or more considerations under Section 9(1) of the Bail Act are present, the onus is on the Applicant to show why his detention in custody is unjustified: see Re Fred Keating -v- The State [1983] PNGLR 133 and Re Kou Dua [1984] PNGLR 22. 

17. In Re Kou Dua’s case (supra), a case of wilful murder at page 23 of the Judgment, the late Chief Justice Sir Buri Kidu stated that: "In the Re Keating [1983] PNGLR 133, the Supreme Court last year held that in the case of a bail application of a person charged with wilful murder if any one or more of the criteria in s.9 of the Bail Act is or are shown to exist the onus is then on the applicant to show why he/she should be granted bail." 

18. In Michael Aia & Michael Maneba -v- The State (2001) N2124, Davani J considered an application for bail where the Applicants were each charged with one count of wilful murder. In considering what may amount to exceptional circumstances in cases of wilful murder, Her Honour cited some examples on page 3 of the Judgment as follows:

1.	prolong detention may prejudice the defence;

2.	the welfare of the Applicant and family may be prejudiced;

3.	the employment and business welfare of the Applicant may be prejudiced.

19. The Court’s power to either grant or refuse bail is discretionary even if one or more of the considerations under section 9(1) of the Bail Act are present. For the Court to do so there must exist exceptional circumstances to warrant the Court to exercise its discretion in favour of the Applicant. 

REASONS FOR DECISION

Considerations under section 9(1) of the Bail Act

20. The considerations which a bail authority, in this case the National Court shall take into account when deciding whether or not to grant bail to an accused are set out under section 9(1) of the Bail Act which I need not labour to set out as they are straight forward. But I will refer to the relevant ones in the course of my ruling.

21. First, I apply the considerations under section 9(1)(a),(c)(i),(ii) & (iii),(d) and (f) of the Bail Act. I refer to the often quoted case of Re Fred Keating (supra) where it was held that the onus is on the State to show why bail should not be granted based on the considerations set out under section 9 of the Bail Act in particular under sub section 1(a),(c),(d)(d) and (f).

22. In relation to the consideration of whether or not the Applicants are unlikely to appear at their trial if granted bail, I accept the submissions of the State that it is unlikely that the Applicants will appear at the trial or even at the Criminal Call over if granted bail. 

23. First, I must agree with the State that the Applicants hail from a remote village in Tari of the Southern Highlands Province, thus accessibility to locate them in the event that they abscond bail is very slim. It is far from Mendi if the trial is to take place in Mendi. In saying this, I take into account the submissions of Mr Yange that the Applicants pledge that if they are granted bail, they will remain with one of the Guarantors, Nelson Langipe in Mendi to await their trial. Whilst that maybe so, I am not too certain that they will do so, especially where movement of people like in this case, the Applicants is very difficult to monitor given the lack of proper facilities on the ground and also police manpower to oversee that they comply with such a condition.

24. The second reason for me to say that it is unlikely that the Applicants will appear in Court if granted bail is that, from my recent trip to Tari for Circuit duties in the month of August of this year, I have noted with disappointment that none of the accused on bail appeared at the Criminal Call over. I had no choice but to issue warrant of arrests on the State’s applications for the immediate arrest and detention of those absconders. 

25. To my mind, this is a telling factor as there are about 60 bench warrants issued by the Court against absconders for Tari alone. As the Applicants hail from a village somewhere in Tari, this is not a good indication at all and if bail is granted to them, I wonder if they will not follow the foot steps of their brethrens. I consider that a long bench warrant list like in this case is a factor that operates against a grant of bail. See John Raikos -v- The State (2001) N2040.

26. Having said that and for those reasons given, I am satisfied that the State has made out this ground of objection to the application for bail under section 9(1)(a) of the Bail Act.

27. In relation to the consideration that the alleged act or any alleged acts constituting the offence of attempted murder for which the Applicants have been detained in custody consists of assault or threat of violence to another person or having or being in possession of firearm or other offensive weapon or explosive, it is clear to me that there is present the considerations under section 9(1)(c)(i),(ii) & (iii) of the Bail Act. 

28. Here, I note from the Brief Statement of Facts that it is alleged that the Applicants were armed with home made shot guns and a container of petrol and went to North West Moran 14 to kill anyone. When they arrived, the Applicant Mapi Meck Muli shot at one of the employees of the Oil Search Limited, called Steven Undula. Fortunately for Steven, some of the pellets struck him but he survived. Another of the employee called Peamu Tengu was also injured by the shot discharged from the same home made gun.

29. I also note that the Applicants ran to the road constructions site and held up the employees of the road construction company. They proceeded to pour petrol and set fire on one of the dump trucks and another truck on the site. Both trucks were completely burnt down. The estimated total loss of value of the trucks is K4 million. Therefore, I find that this consideration does not favour the Applicants under section 9(1)(c)(i)-(iii) of the Bail Act.

30. The next consideration is whether or not the Applicants are likely to commit further indictable offences. I accept the State’s submission and the evidence of Detective Sergeant Epara Piuk that the Applicants are dangerous and are a threat to the community. It is likely that first, they will interfere with the operations of Oil Search Limited if they are released on bail in view of the unfavourable National Court decision. Secondly, it is likely that they will interfere or fight with the members of the Perri sub clan. For these reasons, I find that the State has made out this ground of objection under section 9(1)(b) of the Bail Act.

31. The other consideration is whether or not the Applicants are likely to interfere with the State’s witnesses. This is the consideration under section 9(1)(f)) of the Bail Act. I accept Mr Kesan’s submission that as the police investigations into the commission of the alleged offences are pending, there is reasonable ground to believe that the Applicants will interfere with the State’s witnesses if granted bail. 

32. Further, I find that as the police investigations have not been completed and it maybe that the police may lay further charges against the Applicants and their accomplices when further investigations uncover more evidence to support the charges. Hence, I find that the Applicants have failed to discharge the onus set out in section 9(1)(f) of the Bail Act and bail should be refused on this basis too.

Exceptional circumstances

33. Although Mr Yange did not submit that there are exceptional circumstances present in the Applicants’ case which warrants that they should be granted bail, I think that this is what he wanted to submit when he submitted that first the Applicant’s detention would not be in their best interest where they have denied committing these offences. Secondly, they need to be outside custody in order for them to adequately prepare the defence of their case.

34. It is accepted that the Court may take into exceptional circumstances when considering an application for bail but the onus is on an Applicant to prove that there exist exceptional circumstances. In other words, the National Court has also considered that it can grant bail to an Applicant if the Applicant is able to demonstrate that there are exceptional circumstances present in his or her case. 

35. I refer to the cases of Bernard Juali -v- The State (1997) N1887, a case of wilful murder and Michael Aia’s case (supra), a case of armed robbery where the Court considered whether or not there exist exceptional circumstances.

36. And as Kandakasi J, said in Steve Lester -v- The State (2001) N2044 at page 5 which I respectfully adopt here:

"The applicant therefore has the burden to show and convince this Court that his continued detention in custody is not justified and the interest of justice requires his release on bail. If the grounds relied on for bail by the applicant is intended to discharge that burden, I have two difficulties. First, there is no evidence whatsoever in any form to prove their existence. Secondly, I fail to see how all or any of them could be regarded has a factor or factors showing his continued detention in custody is not justified and that it is in the interest of justice that he should be granted bail".

37. And so, the question I ask is; have the Applicants shown that there exist exceptional circumstances in their case? Or to put it the other way, have the Applicants demonstrated in any way how their continued detention in custody is unjustified? 

38. As I said in Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27 February 2008) on page 13 that:

"This was the same question paused by Her Honour Madam Justice Davani in the National Court Judgment of Michael Aia & Michael Maneba -v- The State (2001) N2124. There, Her Honour Madam Justice Davani considered an application for bail where the each of the Applicant was charged with one count of Wilful Murder. In considering what would have been exceptional circumstances in cases of Wilful Murder, Her Honour cited some examples on page 3 of the Judgment as follows:

1.	prolong detention is adverse or may prejudice the defence;

2.	the Applicant’s social activities;

3.	the welfare of the Applicant and family may be prejudiced; 	and

4.	the employment and business welfare of the Applicant may be prejudiced or in jeopardy".

39. There, I expressed some of my thoughts in respect of each of the examples given by Her Honour which may be considered exceptional circumstances in the following way at page 13:

"First, the prolonged detention of the Applicant may be adverse or prejudicial to the Applicant’s defence. I agree with my sister that this may constitute an exceptional circumstance. I consider that in cases of Wilful Murder where bail is not readily granted, I consider that this may be a consideration which falls under the cases of what would be defined as exceptional circumstances. In this particular case, I note that this point was not pursued by the Applicant. Hence, I will not take this into account. In any event, as the Applicant was recently as November 2007 arrested and detained pending the hearing of these charges, in my view this consideration has minimum effect on the out come of this application. 

Secondly, as for the Applicant’s social activities such as participating in church activities, I beg to differ from my sister. I am of the view that loss of participating in social activities like church activities or even sports activities cannot be considered exceptional circumstances. I consider that one’s loss of participating in social activities is a natural or direct consequence of being charged and detained for committing an alleged offence. In this present case, in my view, the Applicant’s loss of participating in church activities as an Assistant Pastor is a direct result of being charged with two (2) counts of Wilful Murder and one (1) count of Attempted Murder. In my view, it is not an exceptional circumstance which would justify an exercise of discretion in favour of the Applicant.

40. In respect of those grounds raised by the Applicants, I note the submissions of Mr Yange did not raise any of the grounds I have referred above and more so, the ground in respect of the Applicants’ welfare as an exceptional circumstance.

41. I consider one exceptional circumstance is the welfare of the Applicants, more particularly their health. As I said above, Mr Yange did not raise this as a ground for the application for bail for the Applicants nor did the Applicants raise it in their respective Affidavits. As I said in Lawrence Tapi’s case (supra) at page 13 of the Judgment:

"There is one last aspect which I wish to mention here. I consider that one consideration that may be considered exceptional circumstances is the welfare of the Applicant. This will again depend on the Applicant showing by appropriate evidence that his welfare whilst in custody is in jeopardy.

For example, the Applicant must show by appropriate evidence that he is suffering from serious medical ill health. Appropriate evidence should include Medial Report from a reputable and specialist Doctor.

In this case, the Applicant has not I find that there is no evidence presented to support this ground of serious medical ill health of the Applicant". (Underlining is mine).

42. Thus, I consider that the Applicants’ health condition may be an exceptional circumstance but there must be appropriate evidence presented to show that their health whilst in custody will be or is in jeopardy. As I said, the Applicants did not raise this ground, thus I will not consider it.

43. On the hand, they claim that they are innocent. They say that they were not involved in the commission of these offences. The question is, is innocence of an accused an exceptional circumstance? In my view the answer is straight forward. It is not. The question of guilty or otherwise in my view is a matter for trial and cannot be a ground for the grant of bail. Therefore, I reject this ground.

44. Secondly, I do not consider that the Applicants’ early release from custody to prepare the defence of their case is an exceptional circumstance. To my mind, their "limited access" to information to prepare their defence is a direct consequence of being arrested and charged with these offences. But they will still have the opportunity to prepare their defence whilst in custody. And so for now, they must wait until their turn comes. For these reasons, I reject this ground and say in passing that they have been in custody for about 3 months unlike the others who have been waiting in custody for more than 3 months.

45. This leaves the Court with the serious allegations of attempted murder where dangerous or offensive weapons were used and arson against the Applicants to consider as opposed to their mere denial of the charges based on their claim that they were wrongly accused and need to be out on bail to prepare their defence. 

46. That gives me no choice but to follow the dictates of the Supreme Court in Re Fred Keating’s case (supra), namely, the application should be refused if one of the factors under section 9(1) of the Bail Act is established unless the Applicants show their continued detention in custody is not justified.

CONCLUSION

47. In the end, I find that the Applicants have failed to discharge the onus that none of the considerations under section 9(1)(a),(b),(c)&(f) of the Bail Act exists. Further, I find that the Applicants have failed to show that there are exceptional circumstances in this case and also that the reasons advanced by the Applicants in support of his application are not exceptional circumstances. Therefore, the application must fail.

I refuse the application. 
______________________________________

Acting Public Prosecutor: Lawyers for the State
Warner Shand Lawyers: Lawyers for the Applicants