N4136

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

MP NO 392 OF 2010

IN THE MATTER OF AN APPLICATION FOR BAIL PURSUANT TO 
SECTIONS 4 AND 6 OF THE BAIL ACT, CH 340 AND SECTION 42(6) OF 
THE CONSTITUTION

BETWEEN

MARK GUNUA
Applicant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Minj: Makail, J
2010: 20th & 21st September

PRACTICE & PROCEDURE - Bail - Applicant charged for wilful murder - Bail not available as of right to a person charged for wilful murder - Discretionary - Exceptional case must be established - Grounds for bail - Whether exceptional case established - Constitution - Section 42(6) - Bail Act, Ch 340 - Sections 4, 6, & 9.

Cases cited:

Re: Fred Keating -v- The State [1983] PNGLR 133
Kuku Hayara -v- The State (2008) N3488
Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27th February 2008)
Phil Undaba -v- The State (2010) N4062
Paul Guant -v- The State (2009) N3576

Counsel:

Mr R Otto, for Applicant 
Mr M Ruari, for Respondent 

RULING ON BAIL APPLICATION

21st September, 2010

1. MAKAIL, J: In this case, the applicant is the Provincial Works Manager of Chimbu Province. He has been charged and detained for the wilful murder of a youth named Junior Joe at Gui village in Sinasina District of the Chimbu Province on 05th June 2010. He makes an application for bail pending committal proceedings before the Kundiawa District Court pursuant to section 42(6) of the Constitution and sections 4, 6 and 9 of the Bail Act, Ch 340.

2. According to the summary of facts attached to his affidavit filed on 02nd September 2010, the State alleged that the applicant wilfully murdered the deceased when the deceased and a group of youths interrupted him and his friends during a drinking party at Gui village on the night of 05th June 2010. At the material time, he was armed with a firearm, namely a pistol and shot at the youths. The shot hit the deceased on his abdomen and he fell to the ground. He was subsequently rushed to Kundiawa General Hospital for treatment and died six days later.

3. The brief facts depict a case of serious assault with an offensive weapon. It is a case where the applicant is alleged to have shot the deceased with a pistol resulting in the death of the deceased. In my view, the presence of serious assault on the deceased and use of an offensive weapon are sufficient reasons for refusal of bail under section 9(1)(c)(i)-(iii) of the Bail Act, Ch 340.

4. Further and more importantly, section 42(6) of the Constitution states that bail is not available as of right to a person charged for wilful murder. It is granted at the discretion of the Court and the Courts have in the past considered bail for applicants charged for wilful murder by applying the exceptional circumstances test. In other words, an applicant charged for wilful murder must establish to the satisfaction of the Court that his or her continued detention is unjustified: see Re: Fred Keating -v- The State [1983] PNGLR 133.

5. In the present case, the applicant has been charged for wilful murder. Bail is therefore, not available to him as of right. He must establish an exceptional case before bail can be granted. He has advanced five grounds in support of the application. They were:

1. Unhygienic conditions at Kundiawa Police Station cell, thus posing serious threat to his health;

2. Prolong detention prejudicial to his family's welfare;

3. Prolong detention prejudicial to his work as Provincial Works Manager of Chimbu Province; and

4. Prolong detention prejudicial to his effort to organize and pay compensation to the line of the deceased; and

5. Prolong detention prejudicial to his medical condition.

6. The State has not opposed the application but had asked for strict bail conditions including K500.00 cash surety to be paid up front by each of the applicant's guarantors, namely Councilor Bepi Ekim and Councilor Sam Mogia if bail is granted. Although the State has not opposed bail, it does not necessarily mean that bail should be granted as a matter of course. Albeit, the applicant must establish that there are exceptional grounds present in his case before he may be granted bail.

7. Turning to the first ground, I accept that unhygienic condition at Kundiawa Police Station cell is an exceptional ground. But I am not satisfied that there is sufficient evidence establishing this ground. This is because there is no independent evidence from the health authorities confirming the applicant's assertion that the police station cell is unhygienic, thus posing a serious threat to his health. Further, there is no evidence that there are reported cases of typhoid and dysentery at Kundiawa Police Station cell. As a matter of evidence, this ground has not been established.

8. As for the second ground for bail, it is not an exceptional ground. In my view, it is a direct and natural consequence of the applicant's arrest and charge for the alleged offence. I reject this ground: see Kuku Hayala -v- The State (2008) N3488, Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27th February 2008) and Phil Undaba -v- The State (2010) N4062.

9. In relation to the third ground for bail, the applicant's counsel strenuously argued that as the Provincial Works Manager of Chimbu Province, the applicant has been heavily involved in the initial stages of the proposed project by sourcing funds through preparation and presentation of submissions to the National Government and donor agencies to upgrade and reseal roads in Kundiawa town. The proposed project will be a face lift to the province and is expected to start soon. Hence, his continued detention is detrimental to the proposed project. Counsel relied on the affidavit of the Chimbu Provincial Administrator Mr John Kunda Naur filed on 02nd September 2010 and the affidavit of Teine Sogan Onguglo also filed on 02nd September 2010 to emphasise the importance of the applicant's job and the need to have him released on bail. 

10. I am of the view that the adverse effect on the applicant's job due to the prolong detention is not an exceptional ground for bail. In my view, the prejudice to the applicant's work is also a direct and natural consequence of being arrested and charged for the alleged offence. I reject this ground: see Kuku Hayala's case (supra) and Lawrence Tapi's case (supra).

11. Turning to the fourth ground, the applicant's counsel strongly argued that the applicant's prolonged detention has seriously affected his efforts in organizing and paying compensation to the deceased's line so that peace and harmony can be restored between the two groups. I am of the view that it is not an exceptional ground for bail. If the applicant seeks to organize and pay compensation to the line of the deceased, that is a matter for him to take up at anytime. I consider that payment of compensation by an applicant and his line to the line of a deceased is evidence of genuineness and desire to restore peace and harmony between the two conflicting parties. But I fail to see the connection between the applicant's efforts on restoring peace and his request for bail.

12. I made similar observations in Paul Guant -v- The State (2009) N3576 with particular reference to the security and safety of the applicant at pp 13 and 14 in the following terms:

"Lastly, if the Applicant is granted bail, I believe the Applicant's security and safety is at risk. But the Applicant says that his life is not at risk or in danger because his relatives had paid compensation to the relatives of the deceased. He says that his relatives gave K6,000.00 cash and 6 pigs worth K1,500.00 each. As a result, both sides are at peace and life is back to normal again.

Be that as it may, there is a matter that concerns me and I wish to comment on before I decide whether or not the Applicant's security and safety is not a concern for all. That matter is the compensation culture. It is common in this part of the country. In some ways, it is a good culture but in other ways, it is not. It is bad cultural practice if it is used to buy ones way out of the law so to speak; that is to avoid criminal responsibility.

Putting it in the context of a bail application like in this case, it is used to make peace with the relatives of the deceased. In my view, at the same time it acts as a leverage to seek bail at the expense of ones safety. If it acts as a leverage to seek bail, this is where it is a bad cultural practice. I think ones safety should not be compromised simply because compensation is paid to the relatives of the victim or deceased as a mark or symbol of peace. In my view, whilst compensation is a mark or symbol of peace, it cannot act as a substitute for an Applicant's security and safety."

13. For these reasons, I am of the view that the applicant's request to be released on bail to organize compensation for the deceased's line is not an exceptional ground. Further, I am not aware nor have been referred by the applicant's counsel to any case authority to support this ground and I reject it.

14. As for the final ground for bail, the applicant's counsel submitted that following the alleged shooting of the deceased by the applicant, the youths and the deceased's line attacked the applicant and his father. They killed his father and seriously wounded him with bush knives. He sustained bush knife wounds to his head and limbs and was hospitalised at Kundiawa General Hospital. He was subsequently taken to his house due to threats where he continued to receive treatment until his arrest and detention at Kundiawa Police Station on 24th August 2010. 

15. I am of the view that adverse effect on an applicant's health due to prolong detention is an exceptional ground for bail. In this case, the evidence in support of this ground contradicts the evidence in support of the third ground, that is the prolong detention had adversely affected his job as the Provincial Works Manager of Chimbu Province. On one hand, he seemed to suggest that he is fit and well and must be released on bail to attend work. He is so keen to return to work to oversee the implementation of the up and coming road project in Kundiawa town. Then he seemed to say that he is not fit and well because of the serious injuries sustained in the attack and would require further medical treatment. If he is further detained, it would adversely affect his health.

16. I have perused the medical report from Kundiawa General Hospital by Dr John Tonar dated 24th August 2010 attached to his affidavit (supra) and note that he received head, facial and bodily wounds from the attack. It also stated that he is psychologically unstable for the rest of his life. The doctor assessed a 10% disability. In my view, this is a serious mental disability. It suggests that his ability to think and do things is reduced by 10%. Yet he believes that he can get back to work immediately. At the same time, he says that his prolonged detention has adversely affected his health. In my view, he can't have it both ways. Given the contradictory evidence, I am not satisfied that he has established this ground.

17. Bail is therefore refused.
____________________________________
Paul Mawa Lawyers: Lawyers for Applicant 
Acting Public Prosecutor: Lawyers for Respondent