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Apau v State [2010] PGNC 155; N4073 (14 April 2010)

N4073

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

MP No. 79 OF 2010

In the matter of an Application for bail under s. 42(6)
of the Constitution and s.6 of the Bail Act

BETWEEN:

JOE APAU, FRANCIS AGAU, ALOYSIS INAPI & HENRY AGAU
Applicants

AND:

THE STATE
Respondent

Waigani: Kawi, J
2010: 24th March & 14th April.

CRIMINAL LAW - Practice and Procedure – Bail application – Practice and – Offence of wilfull murder – Section 299(1) of Criminal Code – Bail Act – Section 9 (1)(c)(i)(ii)(iii) present in commission of crime –section 9(1)(f) of the Bail Act – likely interference with witnesses is a consideration taken into account-Constitution section 42(6) interests of justice – Interest of community and law abiding citizens - Crime of wilful murder – a serious crime – Nature of the crime operates as sufficient factor against bail being granted- Prime suspects still at large-Need to balance individual interests of an accused person to be out on bail and community interest. Community interests well encapsulated in the phrase " interest of justice" provision in Constitution section 42(6) and section 3 of the Bail Act.- Community interests should prevail over individual interests-Interests of community need to be protected from offenders and alleged offenders-Releasing accused persons back to communities not in the interest of the community- Proposed guarantors are biological fathers of two of the accused persons- possible apprehension of bias and placing themselves in a conflict of interests situation- guarantors are not approved.
Accused have not discharged onus of showing why continued detention is not justified- Bail is refused.

Cases cited:

Re Fred Keating v. The State [1983] PNGLR 133
Re Herman Kagl Diawa [1980] PNGLR 148
The State v. Beko Job Paul [1986] PNGLR 97
Cletus Waffi –v- The State (2010) N4078
Casper Wynneberger –v- The State (2010) N4077
Philip Maru and Arua Oa [2001] N2045

Counsel:

Mr. D. Korowa Kipoi, for the Applicants
Ms. L. Wawun, for the Respondent

RULING

14th April, 2010

1. KAWI, J: Joe Apau, Francis Agau, Henry Agau and Aloysius Inapi are all co-accused who have been charged with one count of the wilful murder each of one Max Miai, contrary to Section 299(1) of the Criminal Code. They are remanded in custody and are awaiting the committal process to be completed. They all applied for bail under sections 4 and 6 of the Bail Act.

Statement of Facts

2. The Police statement of facts which is annexed to the affidavits of Joe Apau and Francis Agau, two of the applicants alleges that on Friday the 12th February 2010 at Eboa village, Kairiku District in the Central Province, the four (4) accuseds persons were alleged to have accompanied a prime suspect, who is still at large and placed a log across the road at Eboa village as an oncoming PMV truck bound for Malalaua in the Gulf province was approaching. When the PMV approached, it saw the log lying across the road, and slowed down to maneuver and avoid the log. As it was maneuvering to drive around the log, the prime suspect fired a shot at the driver who died as he was being driven to the Bereina Health Center to seek medical treatment. At all material times the PMV driver was the deceased, Mr. Max Miai. The prime suspect is still at large and is yet to be tracked down by Police and charged.

The Application

3. In making the bail application two (2) of the co-accused namely Joe Apau and Francis Agau swore affidavits dated the 9th of March 2010 which they all rely upon. In addition, two of the proposed guarantors, Mr. Andrew Inapi and Mr. Charles Apau also deposed to affidavits which the applicants also rely upon. They both pledge a surety of K 300.00 each and severally for all the applicants to be paid if the accused persons are released on bail and then fail to abide by the bail conditions or skip bail.

The Grounds

4. The main ground which the accuseds rely upon is that they argue that bail is really a constitutional entitlement and so it must be granted as a matter of course. In this regard heavy reliance was placed upon section 42(6) of the Constitution and the presumption of Innocence provision under section 37(4)(a) of the Constitution. Reference was also made to the often cited case of Re Fred Keating v. The State [1983] PNGLR 133 for the proposition that even if one or more of the considerations under the section 9 of the Bail Act exists, the Court still has the overriding discretion to grant bail.

5. In relation to the considerations under section 9 of the Bail Act it was submitted that the applicants were merely charged as accomplices and not as the principal offenders. The principal offender is still at large. As such most of the considerations under section 9 of the Bail Act are not made out.

Objections by the State

6. Counsel for the State objected to bail being granted. Her only objection was based on section 9(1)(c)(i)(ii)(iii). It was argued that whether the applicants were all accomplices or principal offenders they all participated in the commission of a serious, heinous and vicious crime, where there was a serious assault to an innocent driver, which resulted in his untimely death, actual threats and actual violence were used.

7. She also made extensive submissions in response to submissions from learned counsel for the applicants on paragraphs (e) (f) (g) (h) (i)(ii)(iii) of the affidavits of the two applicants arguing that matters deposed to in those paragraphs are not bail grounds proper but are statements which the applicants undertake to do if they are granted bail. She further argued that paragraph (h)(ii)(iii) are matters for substantive trial to determine and should not be raised and relied upon in a bail application.

8. The violence consisted of a log being placed across the highway to slow down vehicles and the use of an offensive weapon namely a firearm was used to commit the murder. Therefore she argues that all the considerations under section 9(1)(c)(i)(ii)(iii) are all present.

THE LAW ON BAIL

9. The law on bail is trite law which has been the subject of countless judgments of both the National and Supreme Courts in this jurisdiction in many cases. Since it is trite law, I need not repeat minute details of it save to reiterate the following summary of the legal principles which has been said many times:

(i) A person arrested and charged with an offence is entitled under section 42(6) of the Constitution to bail at anytime except for wilful murder and treason but a bail authority still has the discretion to refuse bail "if the interest of Justice otherwise requires''. See Re Herman Kagl Diawa [1980] PNGLR 148.

(ii) Section 9 of the Bail Act prescribes circumstances in which bail may be refused. These section 9 prescriptions qualify the right to bail under Constitution section 42 (6).

(iii) The existence of one or more of the considerations under section 9 of the Bail Act may operate as a bar to or form the basis for the refusal of bail but that is not automatic. There is a discretion vested in the Bail Authority to grant bail if any applicant for bail is able to show by appropriate evidence that his continued detention in custody is not justified. The existence of one or more of the considerations under section 9 is no reason to refuse bail - See Re Fred Keating [1983] PNGLR 133.

(iv) The burden to produce appropriate evidence to form a foundation for a grant of bail is not a difficult and complicated one because by virtue of section 9(2) of the Bail Act, the application of strict and technical rules of evidence and procedure are excluded.

(v) The list of circumstances under section 9 of the Bail Act are not exhaustive and conclusive and the court has the discretion to take into account any other considerations forming the basis of a particular bail application.

9. BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

(1) 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;

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

(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;

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

(e) it is necessary for the person's own protection for him to be in custody;

(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings;

(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;

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;

(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;

(j)that the alleged offence is one of breach of parole.

10. Let me address the objections put forward by learned counsel for the State and the submission by learned counsel for the accused.

11. The first is the objection based on the considerations under section 9(1)(c)(i)(ii)(iii).

12. The crime of wilful murder in this case consisted of the four (4) accused persons allegedly assisting a prime suspect by carrying and placing a log across the main Hiritano highway to slow down the vehicles. The deceased was shot dead when he slowed down the vehicle to avoid and maneuver the vehicle around the log. He was shot with a shotgun or other high powered firearm. The accuseds say that they were not the ones who pulled the trigger that fired the fatal shot. They say it was the prime suspect who is still at large. The accused maintain their innocence arguing that they were simply at the wrong place at the wrong time.

13. Whilst the accused persons may have been at the wrong place at the wrong time, it may be true to say that their presence at the scene of a crime is not sufficient to create criminal responsibility and culpability. But the facts in this case show that the four (4) accuseds were not simply bystanders or onlookers at the crime scene, the facts alleged that they did participate in the criminal act. Their participation was by means of helping to carry the log and then placing it across the road. This was done with the sole intention of slowing the vehicles down. The carrying of the log and placing it across the road bespeaks encouragement of and support to the principal offender who was the person who actually pulled the trigger that killed the deceased. In law this is sufficient to implicate the four (4) accused persons.

14. In my view whether they were mere by- standers at the wrong place and at the wrong time, in law every person who participates one way or another that makes commission of a crime possible is criminally responsible like the actual perpetrator of the crime. This is common sense because without the accessory or accomplice before, during or after the crime, no crime will be committed, particularly major crimes such as the one alleged which involved some logistical support to commit.

15. In my view the considerations under section 9(1)(c)(i)(ii)(iii) are all present as the prosecutor has ably argued.

16. I also concur with the learned prosecutor, that the statements of the accused persons appearing in paragraphs (e) (f) (g) (h)(i) of the affidavits in support are not grounds to be relied upon, but rather they are statements which the applicant undertake to do should they be granted bail. I further endorse her submission concerning paragraph (h)(ii) (iii) on whether actual violence and a dangerous weapon was actually used. At this stage it suffices to say that there is some evidence of some actual violence used and an offensive weapon was used.

17. In the exercise of my discretion I also consider that the consideration under section 9(1) (f) of the Bail Act is also present. That is Interference with witnesses. The fact that this crime was committed at Eboa village, along the Hiritano Highway, naturally means that all witnesses or nearly most of the independent eye witnesses will have to come from Eboa village. There is therefore a risk that releasing the accuseds on bail will result in the accused persons interfering with some State witnesses. This is true when one considers that the prime suspect is still at large and is yet to be tracked down. Indeed this is another factor that I will take into consideration.

18. The accused have all deposed to affidavits giving an undertaking that they will not interfere with State witnesses. This is good, but I find that it is easier said than done. I will accept that there may be some interference with State witnesses if the accuseds are released on bail despite their noble intentions and undertakings.

In my opinion, the consideration under section 9(1)(f) is also established.

Other considerations

19. Are these the only considerations that I look into? In my view, the factors enumerated under section 9 of the Bail Act are not conclusive and exhaustive. This leads me to consider other factors one of which is the nature of the case itself. Indeed neither of the Counsel addressed the Court on this issue. Inspite of this failure by counsels, I will still consider this aspect in the exercise of my discretion.

20. The crime of wilful murder is a very serious crime. Wilful murder is in effect unlawfully taking away the life of another person. Society's abhorrence to this crime is reflected in the Criminal Code provisions making the killing of another person, a very serious indictable offence. The crime of wilful murder is a serious matter. This court considers that the wilful murder of a person is in effect taking the life of another fellow human being unlawfully. Society's abhorrence to this crime stems from the Criminal Code. The modern state has legislated the taking away of another life by another person unlawfully as a serious indictable offence which is punishable by very stringent sanctions and punishments. The Criminal Code prescribes life sentence and in some aggravated circumstances the ultimate penalty of death is prescribed for offenders. This shows society's abhorrence, abomination and distaste to this heinous and vicious crime.

21. Christian churches and organizations as well as the law abiding citizens of the community recognizes unlawfully taking away the life of another person as a very grave cardinal sin that violates the Ten Commandments of God. Whichever way we look at this heinous crime whether purely from a legal or purely from moral ethical point of view, we would still arrive at one undeniable conclusion. Wilful murder is a serious heinous crime.

22. In State v Beko Job Paul [1986] PNGLR 97 Wilson J, made it clear that the nature of the offence itself may have the effect of operating as a sufficient factor to refuse bail, unless the Court is convinced that the continued detention is not justified. In my view, the nature of this case falls into a classic statement by Wilson, J in the State v. Beko Job Paul which I adopt that "the interests of justice are not served by failing to give special significance to this type of crime and the consequences that flow, or could flow from it." In my view the serious nature of this crime of wilful murder warrants the continued detention of the accused persons in custody.

23. The other factor that I have to consider is the interest of the accused person to be released on bail and return to their community, and I must balance those individual interests with the interests of the law abiding citizens of a society at large.

24. The interests of the society to see offenders deal with promptly and effectively according to law is well encapsulated in the phrase "interests of justice." The notion of interest of justice is included in the provision of Section 42(6) of the Constitution and Section 3 of the Bail Act. In the State v. Heisi Tau (1999) N1937 Sakora J stated that it "is concerned with protection of the community, the law abiding people, from those who offend (or are alleged to have offended) against them until such time as guilt or innocence are fully and finally determined according to law."

25. His Honour further stated:

"In my opinion, the inclusion of those exceptions (to the availing of the right or entitlement) was a deliberate legislative act to ensure that interests of justice is accorded due recognition and consideration, and, where appropriate, held to prevail over the individual rights and interests of the accused person. This would suggest that the criminal laws of the country are to be enforced without exception, and equally, and that those who have (or are alleged to have) offended against society or community's laws and rules are made to realize that they have forfeited their right to live and move around freely."

26. The "interest of justice" involves all those considerations prescribed under Section 9 of the Bail Act, considerations such as the prevalence and the nature off and the seriousness of the offence. Bail should not be refused unless the Bail Authority is satisfied on reasonable grounds as to the existence of one or more of those factors or considerations.

27. Clearly it is in the interests of an accused person to be released on bail. But I am also very mindful of the interests of the society as noted earlier on and the law abiding citizens which needs to be protected at all times from offenders or from those who are alleged to have offended. In my view the interests of the wider community of law abiding citizens should prevail at all times over an individual interest of an accused persons.

28. Accused persons must realize that they have forfeited their rights to live and move around freely in society, the moment they are suspected of a crime and are arrested and taken into lawful custody. They have forfeited that freedom. The interests of the law abiding citizens must be protected from such offenders or those who are alleged to have offended.

29. The Court therefore finds that the nature of the crime of wilful murder in this case is a serious matter warranting the continued detention of the accused in custody.

30. One other matter which I must also consider when dealing with the interest of the community is the fact that the prime suspect is still at large. The fact of the prime suspect being at large creates fear into the lives of ordinary law abiding citizens of the community. Releasing four (4) other alleged suspects back to their community will not ease those fears but rather increase and heighten those fears about their own safety into the hearts and minds of the ordinary law abiding citizens in the community. Rather than create more fear and concerns in the hearts and minds of the ordinary law abiding citizens, I am of the view that the interests of the law abiding members of the community dictates against the release of the accused persons on bail back to their community.

31. The other consideration which I address is the arguments by learned counsel for the applicants around the accuseds right to bail under Constitution section 42(6) and his presumption of innocence guaranteed by section 37(4)(a) of the Constitution.

32. It is true that every person charged with an offence is presumed innocent until proven guilty according to law. It is also true to say that a person charged with or arrested or detained for an offence (other than treason or wilful murder) is entitled to bail at all times form arrest or detention to acquittal or conviction unless the interest of justice otherwise require.

33. However, it is important to note that the right to bail prescribed under section 42(6) of the Constitution is not an absolute, automatic self executing constitutional right.

34. In my opinion the section 42(6) right to bail is a qualified right and not an absolute, self executing right. It is qualified by the prescriptions or the considerations under section 9 of the Bail Act.

35. It appears that the submission by the learned counsel for the four (4) accused persons proceeded on the basis that because of Constitution section 42(6) and 37(4)(a), bail is a matter of course. In other words, bail is automatic. This in my judgment is quite erroneous. In my view, a person cannot be unnecessarily detained in custody unless he or she is suspected of having committed a crime, whilst the whole criminal justice process to determine his or her innocence commences. While an accused person remains innocent, until proven guilty according to law, the same constitution also provides for a legitimate legal process to be set in motion, the moment he or she is taken into custody. There is therefore a presumption that an accused person who is charged and detained is so held on some proper legal basis.

36. This is so in the present case. The four (4) accuseds are held in custody because it is alleged that they acted in concert with the principal offender in the killing of the deceased, a Max Miai.

37. They are therefore held in custody for good legal reasons.
In my view under Constitution section 42(6) and section 9 of the Bail Act, bail is not automatic as submitted by learned counsel for the four accused persons. It would therefore be erroneous to think that because of these constitutional prescriptions bail would come as a matter of course, or that bail is automatically granted when an applicant requests for bail.

38. In the Courts view a Bail Authority should carefully consider the interests of the applicant to be left out on bail and the wider interests of society to have offenders dealt with according to law once they are brought before the Courts in a manner that is prompt, effective and less costly. This involves the Bail Authority taking into account the considerations under section 9 of the Bail Act and such other factors the Bail Authority considers appropriate in deciding whether or not to grant bail.

39. The final contention by the applicant is a worry they all have about their aging parents and the need for them to be out on bail to look after their aging parents and the general welfare of their respective families.

40. Nothing was put before the court on how each of these respective applicants were caring for or looking after their respective parents. In fact I would doubt the veracity of these statements from the accused persons. There is nothing on file to show the general living conditions of his family and how the family is suffering because of the absence of their sons who are being held in custody. In my view the applicant must point to specific instances of suffering; they cannot just rely on some general statements that their family will suffer if they are not released on bail.

41. I adopt what my brother Kandakasi J said in relation to Family Welfare being raised as a ground for bail in the case of Philip Maru and Arua Oa [2001] N2045

"Finally, it is a common claim by all bail applicants that their family will suffer unless they are released from bail. There is the presumption of innocence on the one hand and on the other hand is a presumption that a legitimate process has been set in motion on some proper legal basis. If an applicant's family is put to some suffering of some sort by their arrest and detention, it is their own doing. The effects of their conduct should not form the basis for an exercise of the discretion vested in a bail authority, to decide whether or not to grant bail".

42. I adopt those comments and apply them as being equally applicable in the circumstances of this case

43. For all these reasons, I find that the four (4) accused persons have not discharged the onus of showing why their continued detention in custody is not justified.

44. Bail is therefore refused and the accuseds are to be further remanded in custody until the trial of this matter or until such a time when the Supreme Court or a differently constituted Court grants bail pursuant to section 13 of the Bail Act.

Guarantors

45. The accused persons have nominated two persons as guarantors. The first is Mr. Charles Apau and the other is Mr. Andrew Inapi. Both men are community leaders of standing in their community. Mr. Charles Apau deposes that he is the Eboa village peace officer, or a community policeman. He has been in this job for the last six (6) years. Mr. Andrew Inapi is the land mediator for the Kairuku District. He has been in this job for ten (10) years now.

46. In their respective affidavits both depose that the offenders have been law abiding citizens of Eboa village. They will ensure that the offenders do not skip bail and abide by every bail condition that is set by the Court if bail is granted.

47. In their respective affidavits, both depose that the offenders have been law abiding citizens of Eboa village. I find this statement to be a contradiction with the fact that the accuseds are now charged with a serious indictable offence which attracts life imprisonment. The guarantors further pledge that they will ensure that the offenders do not skip bail and abide by every bail condition that is set by the Court. I accept all the pledges of the guarantors. But what concerns me is this: Both guarantors have been very faithful in enforcing the rule of law in their community. But their restraining influence is not evident in the behavior of their children. So even if I release their children, there is no guarantee that their children will ever listen to their fathers and place themselves again under their restraining influence. I therefore doubt the strict observance and adherence to the undertakings by the applicants themselves.

48. In their respective affidavits, both admit that they are related to the offenders. Mr. Charles Apau is the father of the accused Joe Apau, while Andrew Inapi is the father of Aloysius Inapi, the other accused person. No doubt I would have readily approve of the guarantors, but for the fact that they are the biological fathers of two of the applicants. I am mindful of the caution issued by the Supreme Court when dealing with guarantors who are relatives or family members. The Supreme Court has said in no uncertain terms that relatives and family members run the risk of placing themselves in a conflict of interest situation or by acting as guarantors for relatives and family members there is an apprehension of bias involved. I reiterated this caution in a number of cases where bail was refused. In Cletus Waffi –v- The State (2010) N4078, I refused to approve the elder brother and uncle of the prisoner as guarantors. Similarly in Casper Wynneberger –v- The State, (2010) N4077, I refused to approve the wife of the prisoner as the proposed guarantor. In both cases I said this:

As much as possible applicants for bail must be very careful when nominating relatives and family members as guarantors. Persons who accept to be guarantors should be neutral persons. I do accept that because these are all family members there is a reason to argue that there may possibly be some apprehension of bias and conflict of interests involved. The fear of absconding bail is real here than if a neutral person was nominated. I would not approve the two guarantors as proposed.

49. I would adopt and apply those comments here. The chances of the guarantors placing themselves in a conflict of interest situation is real here. There is also the possible apprehension of bias on their part which I find is real here than if neutral persons were to be nominated. I doubt that the guarantors will do a better job now than they were before the commission of the crime. Despite their many undertakings I am not convinced at all the accused persons will ever listen to their parents or bring themselves under their restraining influence. If the four (4) accused persons were law abiding citizens as they claim they are, then they should not have been in the wrong place at the wrong time.

50. For all these reasons bail is hereby refused and the accused persons are further remanded in custody until a proper trial of this case.

____________________________________________________
Kipoi Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent