N4206

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 693 OF 2009

JOE BAL JUNIOR
Applicant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Kundiawa: Sagu, AJ
2009: 15th October

CRIMINAL LAW – practice and procedure - bail application- willful murder charge: compensation payments not exceptional factor to grant bail – guarantors - family members and relatives with reputation and standing can be safe guarantors – increases accused obligation to answer bail

Cases cited:

Re Fred Keating -v- The State [1983] PNGLR 133
Re Kou Kua [1984] PNGLR 22
Malaki Kongo & Joe Akusi -v- The State (1996) N1544
Michael Aia & Michael Maneba -v- The State (2001) N2124
Jonathan Hembi v. State (2008) N3463
Guant v. State (2009) N3576

Counsel:

Ms. Josephine Kilage, for the Applicant
Mr.Steven Kesno, for the Respondent

RULING ON APPLICATION FOR BAIL

15th October, 2009

1. SAGU AJ: The Applicant applies for bail pursuant to section 42(6) of the Constitution and ss 4 and 6 of the Bail Act after he was charged with one count. Firstly for the wilful murder of one, Rose Waras- Kuipa on the 15 day of September 2008 contrary to section 299 and secondly for the attempt murder of Billy-Kuipa on the 16 September 2008 contrary to section 304 of the Criminal Code Act.

BRIEF FACTS

2.	The brief facts alleged by the State as contained in the summary of facts are that on the night of the 15th of September 2008, the Applicant, Joe Bal Junior in the company of others dragged Rose Waras Kuipa out of the Man's House and out into the nearby bushes and murdered her and hid the body somewhere not to be found. Thereafter, between 2.00 -3.00 am the same night but on the 16.9.08 the Applicant and his group armed with bush knives, axes and stones attacked Billy-Kuipa the husband of the deceased and Doris Kuipa his second wife where the victims suffered wounds to their head and chest and fracture to the central pelvis bone. Both of the victims were taken to the Kundiawa Hospital for treatment.

3.	In making this bail application the Applicant relies on his affidavit and the Two Guarantors' affidavits being Pius Temai and Betty Franky all sworn and filed on 5.10.09.

PERSONAL BACKGROUND.

4.	The applicant is aged 45 years and is married with five (5 ) children of which two (2) are attending Kerowagi Secondary High School while one is in grade 7 and the other two with their mother. The Applicant has a clean record having no prior conviction. 

5. 	The Applicant's wife is employed as the Treasurer of Karamui Nomane District in the Simbu Province and he looks after the children while she goes to work. 

GROUNDS FOR APPLICATION

Denial of Charge & Family Livelihood

6.	The grounds for seeking bail, are that the Applicant vigorously denies the offence and says that he did not commit the offence. At the moment he does not know how his family is managing and is hoping he could continue his role if and when released on bail. He further states that he operates a stationary business in his house. The profit generated helps him pay for his children's school fees which is approximately K3,000.00. He is worried for the education of his children and their future and needs to be out on bail for these family reasons.

Prolong Detention

7.	The Second ground for this bail Application is that the applicant says he has been in custody for over 8 months and it is unlikely that his case will come up quickly due to the long list of outstanding cases pending before the National Court here in Kundiawa. He seeks bail pending his trial.

Medical Grounds

8.	Further the Applicant says he suffers from an eye sight problem on his right eye and that he usually gets regular treatment but now it is limited since he is confined. He says he also suffers from heart or gestural burn for which he also gets regular treatment however this also is limited due to confinement in custody. In addition the Applicant undertakes to abide by any bail conditions set by the Court if granted bail. 

GUARANTORS

9.	The Applicant proposes two guarantors, Pius Temai and Betty Franky both having deposed to two Affidavits. They are willing to become guarantors having understood the consequence in the event that the Applicant absconds bail if granted. They undertake to ensure that the Applicant comply with all bail conditions. They pledge a sum of K350.00 each as surety.

10.	Pius Temai in his affidavit says he is an elderly person with grown up children residing at Wara Simbu. He is employed by the Simbu Provincial Government, attached to the Traffic Registry Division. Upon further enquiry by the Court, counsel submits he is also a Provincial Customary Lands Officer with the Provincial Government. 

11.	Betty Franky lives in Wara Simbu which is in Ward 6 of the Kundiawa Urban Local Level Government. She is a Board member of the Kundiawa General Hospital in Simbu Province. She is a community leader and the female representative in her council ward area.

PARTIES' SUBMISSIONS

12. Ms. Kilage of counsel for the Applicant submits that whilst the charge against the Applicant is a serious charge of Wilful Murder and bail is not readily available, there are at least three good and justifiable reasons for the Applicant to be released on bail. First, she submits on the Applicant's family and livelihood. The Applicant's stationary store is defunct and is not able to make money to support his children's school fees due to his detention. He is concerned about his children's welfare when his wife goes to work. Secondly, Counsel submits that her client needs medical treatment to his right eye which he cannot see, and further he complaints of constant chest burn. 

13.	Thirdly, he submits that there is a long list of outstanding cases before the National Court here in Kundiawa. As such, it would take a long time before the Applicant would be tried by the National Court, thus he should be granted bail pending his trial.

14.	Fourthly, the Applicant submits that there is peace in his community since the Applicant's relatives have paid compensation of Eleven Thousand Kina (K11,000) during the week end. Since peace is in the community he should be allowed out on bail

STATE OBJECTION

15.	The state objects to bail under section 9(1) (c) that the offence consisted of serious assault by the use of offensive weapons such as bush knives, axes and stones and further the State objects on the ground that there is a real likelihood that the Applicant would interfere with state witnesses under s 9(1)(f) Bail Act. The state relies on the affidavit of Mr. Kesno which has medical reports attached to it. I also acknowledge the summary of facts and the information charged attached to his affidavit which is crucial information for this Court in consideration to the bail application which the Applicant bears the onus to providing particularly where there is counsel representation in such application. 

16.	The State further submits that there is no other independent evidence supporting the applicant's medical conditions and the family's livelihood needs. He further states that compensation payments should be treated as perverting the cause of justice and in fact this practice has derailed accused persons from being brought to trial in the proper administration of justice and the Court should not take that into account. Lastly, the state objects to the guarantors as being not independent and therefore should not be acceptable by the Court.

LAW ON BAIL

17.	Bail is not available to this Applicant as of right. This is because section 42 (6) of the Constitution does not give automatic right to bail for persons charged with treason and wilful murder. However, the Bail Act gives power to the National Court to hear application for bail in respect of wilful murder. The power to grant or not to grant bail is a discretionary one. 

18.	Both the Supreme and National Courts have 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 [1983] PNGLR 133 and Re Kou Dua [1984] PNGLR 22. 

19.	The applicant raised the following issues in supporting why his detention in custody is not justified. It be said that the long delay be a ground to grant bail under this criteria of exceptional grounds. 

20. His Honour Batari AJ, (as he then was)in Malaki Kongo & Joe Akusi -v- The State (1996) N1544 gave some examples of exceptional grounds. There, His Honour said:

"Although the provision of s. 9(1) (c) has been established, there is a discretion in the Court to grant bail. The onus is on the applicants to show why their detention in custody is not justified (Re: Fred Keating's Case). By the time the accusers are brought to trial in April, 1997 they would have spent over 12 months in custody if they are not released on bail. This is a relevant consideration in their favour. It is however not the sole determining factor. One may bear in mind also that, despite the long wait, case trials in Waigani could now be expeditiously dealt with through case listings so that the accused are at least assured of being brought to trial on fixed dates. There is no uncertainty of their being ever brought to trial.

20.	There are three judges in Mt. Hagen now and Kundiawa is regularly circuited now unlike in the past. It is therefore that, he can no longer be uncertain of his case ever being brought to trial.

21.	However, a more relevant consideration would be to assess whether there are any adverse effects by the prolonged detention to his personal health, family, business and welfare or in the preparation of his defence. Her Honour Davani J considered this in Michael Aia & Michael Maneba -v- The State (2001) N2124 when she followed the decision of Malaki Kongo & Joe Akusi (supra) where she said at p 3:

"What are these exceptional circumstances? The Applicants have not shown any. The affidavits filed by the Applicants are very brief. They do not depose to matters pertaining to exceptional circumstances, some of which may be that, prolonged detention is adverse to their defence or that their social activities, family welfare, employment or business would be in jeopardy. These are matters that are relevant to the applicants and ought to have been covered but were not". (Emphasis is mine).

22.	This was further applied in the more recent judgment of Makail AJ (as he then was) in Guant v. State (2009) N3576 when he says;

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 ought also to show cause that his detention would put his social activities and his family welfare, employment, or business engagements in jeopardy. These are some of the matters that in my view are relevant in the applicant's favour and ought to have been covered in their applications. 

23.	While I am not bound by the technical rules of evidence, nevertheless the Court has to be satisfied and it is for the Applicant to provide to the Court all relevant information in relation to his medical and family conditions so as to persuade this Court to grant the application he seeks. The Applicant has fallen short of that. There are no medical reports for example before me favoring this application for bail. I am not satisfied that there exist any exceptional circumstances.

Compensation Payment

24.	The Applicant submitted that a compensation of K11,000.00 was paid and peace is maintained in the community. It is therefore unlikely that there will be disharmony in the applicant's community if he is allowed bail. I am of the view that compensation payment does not constitute an exceptional criteria that would not justify an accused persons continued detention in custody. However, the converse is true in that compensation payments have in fact played an important part in derailing offenders from being brought to trial according to due process of law. This is so because once compensation is paid the matter is deemed settled by the community to maintain peace. Such being the case the accused are either slow to answer bail or in some cases abscond bail and are at large and not brought to account to the charge. The compensation issue may be a relevant factor in considering sentence if the accused is found guilty, however, it is prematurely raised here in this application. 

25.	I am of the view that the Applicant has not shown cause why his detention in custody is not justified. Having said that I now take this opportunity to make a few remarks on suitable guarantors.

Guarantors

26.	I now address the issue of the guarantors. What is the guideline for accepting guarantors? The National Court has held that suitable guarantors are to be independent and reputable and does not include family members. In Jonathan Hembi v. State, (2008) N3463 a decision of Canning J in Madang where the Applicant was Charge with Armed Robbery and applied for bail, said the following and I quote:- 

The guarantors proposed are neither independent nor reputable. If someone such as a ward councillor or church pastor had come forward as a guarantor, the applicants' chances of getting bail would be enhanced. But, in such a serious case as this, I agree with Mr Wala that family members cannot be trusted.

27.	I defer from this view slightly and I may do so as the above case is not a Supreme Court decision that I would be bound by it. In deferring I say that while I agree with the above case there are instances where family members or relatives provide good guarantors as I said in Knox Knumb v State (2009) MP 516 of 2009 Mt. Hagen, Unreported and un numbered judgement, where the Applicant was charged with willful murder and family members and relatives with standing such as Village Court Magistrate, or chairman of the peace mediation committee in the area came forward as guarantors. That in some situations where family members posses reputable status and character and who the community has high regard for such as a Village Court Magistrate, Councilor, Pastors, Peace Mediators, businessmen and persons with high positions in government and non government organizations can become safe and secure guarantors. This is because when a respected member of the family with standing in the community agrees to be a guarantor it imposes a greater degree of obligation and respect on the part of the Applicant to answer bail. 

28.	I have already ruled that I was not satisfied that exceptional grounds exist for the grant of bail. Accordingly, the application for bail is refused. Having said that the applicant is at liberty to re apply for bail if there a substantial changes in the circumstances under which bail is refused today.

_________________________________________

Acting Public Prosecutor: Lawyers for the State
Kilage and Associates: Lawyers for the Applicant