N3580

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 491 OF 2008

IN THE MATTER OF THE BAIL ACT CHAPTER 340

AND

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

BETWEEN

PAUL PAWA
Applicant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Minj & Mt. Hagen: Makail, AJ
2008: 14 November &
2009: 6 January

CRIMINAL LAW - Bail - Applicant charged with wilful murder - Whether exceptional circumstances shown - Innocence of applicant not an exceptional circumstance - Medical condition of applicant considered an exceptional circumstances - Onus of proof on applicant - Medical report of doctor supporting serious medical condition - Continued detention would be unjustified - Application granted - Constitution - Section 42(6) - Bail Act - Sections 4, 6 & 9 - Criminal Code - Section 299.

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
Kuku Hayara -v- The State (2008) N3488
Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27 February 2008)

Counsel:

Ms V. Palts, for the Applicant
Mr J. Waine, for the Respondent

RULING ON APPLICATION FOR BAIL

6 January, 2009

1. MAKAIL AJ: This is an application for bail pursuant to section 42(6) of the Constitution and sections 4 and 6 of the Bail Act after the Applicant was initially charged with one count of obstructing and hindering a member of the Police Force one Senior Sergeant David Lulua whilst he was acting in the lawful execution of his duty on 22nd October 2008 contrary to section 60(1) of the Summary Offences Act and subsequently charged with one count of wilful murder of one Timothy Henry on 2nd February 2008 contrary to section 299 of the Criminal Code after being arrested and detained at the Mt Hagen Police Station by police.

BRIEF FACTS

2. For each of the alleged offences, there is no Summary of Facts placed in evidence before me but from the various Affidavits filed by the Applicant and the State which I will refer to specifically in a moment, I deduce the following as the brief facts giving rise to the two offences. On the morning of 22 October 2008, the Applicant was asked by Mr Wai Rapa to go to Mt Hagen Police Station to pick up keys to Mr Rapa's security company's vehicle after police had arrested and detained security guards of Wapa Security Services Limited in relation to the burning down of Kapal haus earlier that morning.

3. At Mt Hagen Police Station, the Applicant asked the duty officer for the key to the security company vehicle but instead the police arrested and charged him with obstructing and hindering a member of the Police Force one Senior Sergeant David Lulua in the lawful execution of his duty. It is not clear from the evidence how the Applicant obstructed and hindered the police but what is clear is that he was at the police station with a specific instruction from Mr Rapa to collect the key of the security company vehicle and was arrested and charged with that alleged offence.

4. After he was charged and detained, he applied for bail at the Mt Hagen District Court and on 31 October 2008, the District Court granted him bail. When he informed the Police of the bail, they slapped him with another charge. This time, for the wilful murder of one Timothy Henry. This was on 3 November 2008. Because of the second charge, the Police refused him bail and he was detained until today.

GROUNDS FOR APPLICATION

5. The Applicant vigorously denies these two offences and says that he did not commit them. In relation to the charge of wilful murder, he says that he was not involved. In relation to the charge of obstructing and hindering a member of the Police Force, one Senior Sergeant David Lulua in the lawful execution of his duty, he says that he simply requested for the return of the key to the security company vehicle that day so that he could drive it back to Mr Rapa. Instead, he was arrested and charged with that offence which he denies out rightly.

6. And in refuting the allegations made by the State, first he relies on his two Affidavits, one sworn on 6th November 2008 and filed on 7th November 2008 and the Supplementary one sworn and filed on 17 November 2008. In those two Affidavits, he deposes that he is suffering from a serious medical condition called hypertension. It is a medical condition relative to high blood pressure and is caused by stress. 

7. He produces a Medical Report prepared by Dr John McKup of Family Medical Centre dated 5th November 2008 (herein "Medical Report"). Dr McKup confirms that the Applicant has hypertension. According to Dr McKup, the Applicant has been his patient for a long time as the Applicant suffers from a recurrent history of migraine pains, chest and loins/lumber pains, giddy spells and fatigue going back to 2004.

8. When he did a medical check of the state of the Applicant's health at Mt Hagen Police Station cell on 5th November 2008, he noted that the Applicant had a "persistent BP of 150/100 whilst the other system findings were within normal limits". That is the reason for him to confirm that the Applicant is suffering from hypertension. He concludes by saying "The cause of the condition is most likely due to primary renal disease and is further compounded with STRESS. The stresses of detention, poor sanitation and hygiene in the cell blocks which is contributing to his blood pressure elevation". 

9. The Applicant proposes four guarantors. They are:

1.	Councilor Albert Manapi;
2.	Councilor John Watts;
3.	Pastor Andrew Boima; and
4.	Mr Wai Rapa.

10. By his Affidavit sworn on 4th November 2008 and filed on 7th November 2008, Councillor Albert Manapi deposes that he is from Jika Milakamb clan of Jika tribe of Hagen Central and married with three children. The Applicant is from Jika Muglmana clan of the Jika tribe and has known the Applicant all his life. He says that the Applicant is a law abiding citizen and he was arrested and detained for these two alleged offences. He pledges to be one of the guarantors of the Applicant and is prepared to put up K500.00 as cash surety if the Applicant is given bail. He is fully aware of the duties and responsibilities of a guarantor and knows the risks involved if appointed by the Court as one of the guarantors of the Applicant.

11. Councillor John Watts deposes to the same matters as Councillor Albert Manapi. In his Affidavit sworn on 4th November 2008 and filed on 7th November 2008, he deposes that he is from Jika Milakamb clan of Jika tribe of Hagen Central and married with four children. The Applicant is from Jika Muglmana clan of the Jika tribe and has known the Applicant all his life. He says that the Applicant is a law abiding citizen and he was arrested and detained for these two alleged offences. He pledges to be one of the guarantors of the Applicant and is prepared to put up K500.00 as cash surety if the Applicant is given bail. He is fully aware of the duties and responsibilities of a guarantor and knows the risks involved if appointed by the Court as one of the guarantors of the Applicant.

12. The other proposed guarantor is Pastor Andrew Boima of the Lutheran Church at Pame, Hagen Central. In his Affidavit sworn on 4th November 2008 and filed on 7th November 2008, he deposes that he has known the Applicant for 10 years and during that period he has found the Applicant to be hard working person and minds his business. He also says that the Applicant is a law abiding citizen and this is the Applicant's first time to be arrested and detained for these two alleged offences. 

13. The Applicant is a member of the Lutheran Church at Pame and attends church and has no reason to believe that the Applicant will abscond bail if given bail. He pledges to be one of the guarantors of the Applicant and is prepared to put up K500.00 as cash surety if the Applicant is given bail. He is fully aware of the duties and responsibilities of a guarantor and knows the risks involved if appointed by the Court as one of the guarantors of the Applicant.

14. The fourth and last guarantor is Mr Wai Rapa. In his Affidavit sworn on 4th November 2008 and filed on 7th November 2008, he deposes that he was the former Deputy Governor of the Western Highlands Province but is the present Local Level Government President of Mt Hagen Rural Local Level Government. He is also the Managing Director of Wapa Security Services Limited.

15. He says he comes from the same clan as the Applicant and has known the Applicant all his life. He says that the Applicant is a law abiding citizen and this is the first time for the Applicant to be arrested and detained for these two alleged offences. He pledges to be one of the guarantors of the Applicant and is prepared to put up K500.00 as cash surety if the Applicant is given bail. He is fully aware of the duties and responsibilities of a guarantor and knows the risks involved if appointed by the Court as one of the guarantors of the Applicant.

16. He also deposes that at about 7 o'clock in the morning on 22nd October 2008, he received a telephone call from one of his security guards that Kapal haus was burnt in the night and 5 of his security guards were detained by police for questioning in relation to the fire at Kapal haus. The key to the security company's vehicle was left at the Police Station and so he told his wife and the Applicant to go and pick it up. When his wife and the Applicant went to the police station, the Applicant got arrested and charged.

PARTIES' SUBMISSIONS

17. Ms Palts of counsel for the Applicant submits that whilst one of the charges against the Applicant is wilful murder and bail is not readily available, there is a good and justifiable reason for the Applicant to be released on bail and that is, on medical grounds. She strongly submits that the Applicant is suffering from hypertension and his continued detention would not be in his best interest in so far as getting well. He stands a great risk of fainting or even dying if his blood level increases given the present confinement condition. She relies on the Medical Report of Dr McKup which I have alluded to earlier to support her submission for the Applicant's early release on medical grounds.

18. Further, she submits that the Court should accept the Medical Report of Dr McKup as evidence of the medical condition of the Applicant notwithstanding the State witnesses' claim that Dr McKup did not attend to the Applicant at the Mt Hagen Police Station cell on 5th November 2008. He submits that Dr McKup did attend to the Applicant and for the State witnesses to deny so in their evidence is a lie and the Court should not believe them in so far as the Medical Report is concern. 

19. Secondly, she submits that the Applicant is innocent as he denies been involved in the alleged wilful murder of Timothy Henry. He did not take part in the killing and the Court should accept his evidence because if he did, it would not be logical and sensible for him to go to Mt Hagen Police Station to collect the key to the security company vehicle, especially when police had labelled him as the most wanted suspect in relation to the alleged wilful murder. For this reason, the Applicant should be granted bail.

20. On the other hand, Mr Waine of counsel for the State opposes the application for bail and says that the onus is on the Applicant to show that his continued detention is unjustified since he has been charged with wilful murder where bail is not readily available. He submits that although the Applicant did produce a Medical Report by Dr McKup to support his application on medical grounds, the Medical Report was done purposely to have him removed from the Mt Hagen Police Station cell and not for the application for bail. It is inapplicable and the Court should not rely on it.

21. In any case, he submits that there was no Medical Report done for the Applicant. This is because the two State witnesses, especially Inspector John Maguna denies seeing Dr McKup at the Mt Hagen Police Station cell on 5th November 2008 to check on the Applicant's medical condition. As such, the Medical Report may have been fabricated and produced simply to support the application for bail. Thus the Court should not rely on it.

22. Further, even if the Applicant demonstrates that bail should be granted on medical grounds, he also submits that there is likelihood of the Applicant interfering with the State witnesses, thus he is disqualified from being granted bail by virtue of section 9(1)(f) of the Bail Act.

ISSUES

23. From the evidence and the submissions of both counsel, the five issues are as follows:

1.	whether medical condition of an Applicant is a ground for bail;
2.	if so, whether the Applicant has established by appropriate evidence this ground;
3.	whether innocence of the Applicant is a ground for bail; 
4.	whether the Applicant is likely to interfere with the State witnesses; and
5.	if bail is granted, which of the proposed guarantors should be appointed as guarantors for the Applicant.	

REASONS FOR DECISION

24. According to section 4(1) of the Bail Act, only the Supreme and National Courts can entertain applications for bail involving serious offences like wilful murder or so forth. 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 [1983] PNGLR 133 and Re Kou Dua [1984] PNGLR 22. 

25. In other words, 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. 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 willful 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." 

26. I am of the view that medical condition of an Applicant is an exceptional circumstance but the onus of proof is on the Applicant to make out a case on this ground. This will require the Applicant to produce appropriate medical evidence from a doctor to state the nature and extent of the medical condition of the Applicant. That is, he must be able to establish the seriousness of the medical condition. In my judgment of Kuku Hayara -v- The State: MP No 345 of 2008 (2008) N3488, a case where the Applicant was charged with armed robbery and demand for compensation, I referred to one of my earlier judgment on an application for bail in the case of Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27 February 2008) and said these at pp 26 & 27:

"The other ground is; can I say that the Applicant's suffering from ill health is an exceptional circumstance? He says that he has been feeling sick and not eating well. As a result, he has lost a lot of weight and also lost his appetite.

As I said in Lawrence Tapi's case (supra) at page 13:

"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).

I consider that the welfare of the Applicant's health may be an exceptional circumstance but there must be appropriate evidence presented to show that his welfare whilst in custody is in jeopardy".

27. Thus, in that case, I concluded that the Applicant's medical condition was an exceptional circumstance. But whilst I noted that the Applicant said that he was feeling sick and not eating well and as a result, had lost a lot of weight and appetite, yet there was no evidence from a doctor to confirm so. There was not even a Medical Report presented to show that the Applicant was sick or his health was deteriorating. All I had was the Applicant's assertion that his health was deteriorating.

28. In the absence of any medical evidence to prove that the Applicant was sick or his health was deteriorating to a point where his life was in great danger, I was not satisfied that the Applicant had discharged that onus bestowed upon him and I declined his application for bail.

29. Returning to the present case, the Applicant relies on his serious medical condition as one of the grounds for the application for bail. I have decided to follow my decisions in Lawrence Tapi (supra) and Kuku Hayara (supra) and say that medical condition of an Applicant like in this case, this Applicant is a ground for bail but I ask, did the Applicant establish this ground?

30. Unlike the case of Kuku Hayara (supra) where there was no Medical Report presented except the Applicant's assertion that he was suffering from some serious medical condition, in this case, I do have a Medical Report of Dr McKup placed before me to assist me decide whether or not the medical condition of the Applicant is such that he must be released.

31. Whilst I accept the submission of Mr Waine that the Medical Report was purposely prepared to justify the Applicant's request for early release from the Mt Hagen Police Station cell, I am at the same time of the view that the Medical Report is sufficient for my purposes to decide whether or not the Applicant should be released on medical grounds. There would be no point requesting Dr McKup to provide another Medical Report for purposes of this application because I am pretty sure, if asked again, Dr McKup will give the same information on the Applicant's medical condition in the new one. Thus, I do not see any difference if I were to decline to accept and rely on this Medical Report now and wait for a new one to be provided. It is simply a waste of time.

32. Further, I reject Mr Waine's submission that the Medical Report of Dr McKup was fabricated in order to support the application for bail. My reading of paragraphs 2 and 3 of the Affidavit of Inspector John Maguna of 11 November 2008 makes it clear to me that he was at work at the Mt Hagen Police Station from 4:00 pm to 12:00 midnight on 1st November 2008 and during that time, he did not see any medical doctor, not even Dr McKup attend at the police station cell to examine the Applicant. I believe and accept his evidence to that extent because there were no medical doctors, not even Dr McKup seen attending to the Applicant on 1st November 2008. That is why he did not see any medical doctor or even Dr McKup on that date.

33. On the other hand, Dr McKup in his Affidavit sworn and filed on 17 November 2008 deposes that he attended to the Applicant at the Mt Hagen Police Station cell on 5th November 2008. From his attendance and examination of the Applicant, he produced the Medical Report of 5th November 2008. It follows Inspector Maguna did not see Dr McKup on 5th November 2008 when Dr McKup came into the Police Station cell to attend to the Applicant's needs. Thus, I conclude that Dr McKup attended and examined the Applicant at the Police Station cell on 5th November 2008 and produced the Medical Report, a copy which is before me.

34. I accept and will rely on it to asses the state of the Applicant's medical condition. Proceeding on this premise, I have carefully perused it and I conclude that the medical condition of the Applicant is a serious one, requiring close observation and monitoring by a doctor. The Applicant has been diagnosed of hypertension. To my mind, it is a specific type of illness which is not a common illness like malaria or headache. As such, quick medical treatment is or would not be readily available or at his immediate disposal. Hence, it would and will require a specialist treatment and attendance by someone who knows the medical problem, in this case, his doctor, Dr McKup.

35. Further, I accept that this medical condition of the Applicant is not a one off incident. I say this because Dr McKup did say in his Medical Report that the Applicant has a long history of this medical problem going back to 2004. Thus, it means that the Applicant is a regular patient of Dr McKup and Dr McKup would be the only person in a better position to attend to the Applicant whenever the need arises.

36. Further still, I accept based on the opinion of Dr McKup that "The cause of the condition is most likely due to primary renal disease and is further compounded with STRESS. The stresses of detention, poor sanitation and hygiene in the cell blocks which is contributing to his blood pressure elevation". To my mind, this is a serious medical condition. It seems to me that detaining the Applicant in a confined area like at Baisu Corrective Institute would only worsen his medical condition and do him no good.

37. For these reasons, I am prepared to give the Applicant a breather. On the other hand, there is no evidence from the State that the Applicant will be properly attended to whilst in detention. Nor is there any evidence that there is proper medical facility at Baisu Corrective Institute where the Applicant could attend for medical treatment or that he will be brought to Mt Hagen town to visit his specialist doctor. If the State is serious about opposing the application and more importantly, to persuade me that the Appellant's medical condition is and will be properly taken care of, then it is incumbent on it to provide appropriate evidence in those terms I have alluded to above to oppose bail. As it did not do so, I am left with the medical evidence of Dr McKup to decide the Applicant's blight. For this, I am satisfied that it supports the Applicant's cause.

38. Accordingly, I am satisfied that the Applicant has made out a case that he suffers from a serious medical condition which would mean that his continued detention is not justified.

39. In relation to the second issue of whether or not innocence of the Applicant is an exceptional circumstance, I am of the view that it is not. Whilst the Applicant says that he was not involved in the commission of these offences, especially the alleged offence of wilful murder, I consider that his innocence is relevant to the question of guilty and as such, is a matter for trial. It is not and cannot be a ground for grant of bail in the disguise of exceptional circumstances. Ms Palts did pose a question and that is, if the Applicant is guilty of the alleged offence, why then did he front up at the Police Station and ask for the security company's vehicle key? She says that as the Applicant did, it just doesn't sound right and is illogical because if a person is accused of committing an offence, that person would as far as possible avoid any contact with the police, in case he or she is apprehended by the police. 

40. I agree, but with respect, that is not a consideration here. In this respect, I have noticed on a couple of occasions in the past where lawyers have relied upon innocence of Applicants to apply for bail. This is a misconception and it must be emphasized here that innocence of Applicants is not relevant in bail applications. Therefore, I reject this ground. See my judgments of Lawrence Tapi (supra) and Kuku Hayara (supra).

41. Lastly, if the Applicant is granted bail, it is believed that the Applicant is likely to interfere with State witnesses. There is some truth in this belief because according to the evidence of Detective Senior Constable Raphael Dua in paragraph 17(c) of his Affidavit of 10 November 2008 he says, "During the identification parade, the accused (Applicant) saw the identities of the witnesses and nearly all the independent witness (sic) are residing in Mt Hagen where they have been threatened already and their lives will be in great danger if he is released on bail".

42. Thus, the threat of interfering with the State's witnesses is real in this case and this disqualifies the Applicant from being given bail as far as section 9(1)(f) of the Bail Act is concern. But I have to weigh this factor against the Applicant's medical condition too and in so doing, I am incline to grant bail given the serious medical condition of the Applicant. At the same time, I must protect the State's witnesses from any threats or interferences by the Applicant and that means there must be a condition that the Applicant must not threaten or interfere with the State's witnesses whilst on bail.

43. In so far as the proposed guarantors are concerned, I consider that all four of them are men of high standing in the community they hail from and would no doubt make good guarantors. But, I prefer Councillor Albert Manapi and Pastor Andrew Boimo ahead of Mr Rapa and Councillor John Watts. In applications for bail, the Court has preferred guarantors who are persons not related to the Applicants either by blood or marriage and in this respect, I note Mr Rapa is a relative of the Applicant as they come from the same clan of the big Jika tribe. Hence, he is disqualified on this basis. See Malaki Kongo & Joe Akusi -v- The State (1996) N1544 which was followed in Michael Aia & Michael Maneba -v- The State (2001) N2124.

44. As I have accepted one councillor as the head of the village community to act as one of the guarantors of the Applicant, it is not necessary to have Councillor John Watts act as one too. But it is satisfying to note that Councillors like him have put up their hands to ensure that Applicants for bail will be under their care and control whilst out on bail. As for Pastor Andrew Boimo, I have chosen him because the Applicant is a member of his church and I expect the Pastor in return to ensure that if bail is given to the Applicant, the Applicant complies with all the bail conditions including rounding up the Applicant if he absconds bail or fails to turn up for his trial on a date to be fixed by the Court.

CONCLUSION

45. In the end, I am satisfied that the Applicant has discharged the onus bestowed upon him. I find that there is an exceptional circumstance present in this case and that is, he has shown that because of his serious medical condition, his continued detention is not justified. Therefore, the application must succeed but there will be strict conditions for bail in the following terms:

1.	The Applicant shall not leave the Western Highlands Province under any circumstances unless with leave of the Court.

2.	The Applicant shall reside at his house at his village each day between the hours of 6:00 pm and 6:00 am.

3.	The Applicant shall not consume any form of alcohol at any time whilst on bail.

4.	The Applicant shall be of good behaviour whilst on bail.

5.	The Applicant shall not interfere with any State witnesses whilst on bail.

6.	The Applicant shall not be in possession of any dangerous weapons including firearms whilst on bail.

7.	The Applicant shall report to the Mt Hagen District Court Clerk of Court every Mondays of each month between the hours of 9:00 am and 3:00 pm.

8.	If he is committed to stand trial in the National Court, the Applicant shall report to the Assistant Registrar of Mt Hagen National Court every Mondays of each month between the hours of 9: 00 am and 3:00 pm.

9.	The Applicant shall pay K1,000.00 cash bail money.

10.	The two guarantors, namely Councillor Albert Manapi and Pastor Andrew Boimo shall pay K500.00 cash surety each, thereby giving a total of K1,000.00.

Orders accordingly.
______________________________________________
Acting Public Prosecutor: Lawyers for the State
Jerry Kiwai Lawyers: Lawyers for the Applicant