N4560

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 301 OF 2010

JACOB MARAGAU

V

THE STATE

Lae: Batari J
2010: 8, 13 September

CRIMINAL LAW - Practice and procedure - Bail application – Offence of wilful murder – No right to bail – Exclusive power in National Court and Supreme Court to consider bail - Onus of proof – Objection to bail, s9(1) of the Bail Act - Prosecution to establish one or more of those matters under s. 9 Bail Act before onus shifts to applicant to show why his detention is not justified - Considerations of – Bail refused – Constitution s 42 (6), Bail Act 1977, s. 9.

CRIMINAL LAW - Practice and procedure - Bail application – Offence of wilful murder - special circumstances – Medical, business, family welfare – considerations of – Strength of evidence – Whether relevant consideration against bail. 

Cases Cited.

Re: Fred Keating [1983] PNGLR 133
Re: Kou Dow [1984] PNGLR 22.
Bernard Juale v The State (1999) N1887
Vela Wari Vele v The State (2004) N270
In Re Diawo [1980] PNGLR 148

Bail Application.

This was an application for bail following ex officio indictment for trial on a charge of wilful murder

Counsel:

K. S. Pais, for the Applicant 
J. Done, for the State/Respondent 

RULING ON BAIL APPLICATION

13 September, 2010

1.	BATARI J: The applicant, Jacob Maragau appeared at the National Court call-over in Lae on 6th September 2010 after being served Witness Statements file following election by the Acting Public Prosecutor Mr Jim Wala to file Ex Officio Indictment against him for wilful murder. The Committal Court had previously discharged him after refusing to commit him for trial. I extended him oral bail to hear on his application for bail. On 8 September, I heard him on bail and remanded him in custody pending determination of his application. 

Jurisdiction to Grant Bail in Wilful Murder cases 

2.	An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding pursuant to s.6 of the Bail Act (the Act). Section 6 however has limited application where the applicant is charged with treason or wilful murder because of s. 42 (6) of the Constitution and s. 3 of the Bail Act. While it is open for a person charged with treason or wilful murder to apply for bail, he must proceed only under s. 4 of the Act. 

3.	Section 4 of the Bail Act vests in the National Court and the Supreme Court, exclusive power to deal with bail applications in relation to three categories of offences namely; (i) homicide offences of wilful murder and murder; (ii) any offence punishable by death; (iii) serious offences the commission of which involved use of a firearm. That provision states:

"(1) A person –

(a)	charged with wilful murder, murder or an offence punishable by death; or

(b)	charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or break and enter a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence,

shall not be granted bail except by the National Court or the Supreme Court.

(2)	For the purposes of Subsection (1), "firearm" includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile."

4.	The applicant here is charged with wilful murder. So, the National Court has jurisdiction to deal with his application for bail. However, he does not start with the same advantage in his or her favour as those entitled to bail because of s. 3 of the Bail Act and s. 42 (6) the Constitution which stipulate that, persons charged with treason or wilful murder are not entitled to bail. Section 42 (6) of the Constitution states: 

"(6) A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require."

5.	This restriction means there is no presumptive right to bail and bail is not readily available to the person charged with wilful murder. However, given the grant of power under s. 4 of the Bail Act in the National Court to allow bail for those persons charged with treason or wilful murder, an application for bail must be decided only on those considerations set out in s. 9(1) of the Act. 

6.	If any one or more of those matters prescribed in s. 9 (1) is shown to exist, it does not necessarily follow that bail will be refused because the bail authority has the discretion to refuse bail. The onus is on the applicant to show why he or she should be granted bail despite the presence of one or a number of considerations under s. 9 (1): Re: Fred Keating [1983] PNGLR 133. See also Re Kou Dow [1984] PNGLR 22. There may also be exceptional circumstances which the person charged with wilful murder may point to as peculiarly applicable to his case that warrants exercise of bail discretion in his favour. See, Bernard Juale v The State (1999) N1887.

Background to this Bail Application

7.	 On 5th March 2010, Jacob Maragau was arrested and remanded on a charge that he wilfully murdered one George Naemon. It is alleged that the killing followed a grievance which Jacob Maragau had for sometime, harboured against George Naemon over a State land issue. It is alleged that, the applicant had extended the boundary fencing of his Club 140 premises onto State Reserve Land at Tent City and the deceased in his official capacity had instructed him in November/December 2009 to remove the encroaching fencing. The deceased was then the Chairman of Morobe Lands and Physical Planning Board. The applicant felt humiliated and infuriated by the instructions and planned to kill the deceased. 

8.	On 17th January, 2010, he allegedly mobilised his relatives to attack the deceased at his home but were prevented by the presence of security personnel guarding the property at the University of Technology Campus. The applicant and his relatives instead attacked the deceased's nephew, Edward Suagus and cause him bodily injuries at his 2nd Street residence in Lae. On that occasion, Jacob Maragau allegedly uttered words to the effect that, he would kill George Naemon for spoiling his business. 

9.	On 15th February, 2010, the applicant organised a reconciliation gathering over that incident but George Naemon and his nephew Edward Suagus appeared to have subbed the applicant's gesture because they did not show up. Two days later, on 27th February 2010, George Naemon was seen drinking at Wima Trading at Tapiok Market, Tent City and this was reported to the applicant. Upon his arrival from Madang, he allegedly instructed his son and others to instigate a fight which led to the stabbing and killing of George Naemon. It is also alleged that Jacob Maragau was present when his relatives attacked and killed George Naemon.

10. 	On 30th July, 2010, the Committal Court dismissed the committal proceedings against the applicant on the grounds of insufficiency of evidence. On 30th August, 2010, the Public Prosecutor laid an ex officio indictment pursuant to its powers under s. 526 of the Criminal Code. The applicant was served the indictment on 5th September, 2010. He appeared the next day before the National Court and subsequently remanded on 8th September 2010. There is also a pending charge in relation to firearm for which he was on K500.00 District Court bail. 

Applicant's reasons and contentions for grant of bail.

11.	Jacob Maragau relies on his own affidavit evidence and the affidavits of his proposed guarantors in support of his application. He gives several reasons why he ought to be granted bail:

(i)	He has, at the outset denied any involvement in the killing and will raise a strong alibi in his defence on his trial.

(ii)	Because of the priority given to listing of earlier committal trial cases, he will likely be detained for a very long time before he stands trial.

(iii)	His detention will likely affect his health due to debilitating hypertension, stress and gastric conditions which required easy access to medical consultation and treatment outside Buimo Correctional Institution.

(iv)	He has two wives and 8 children who are likely to suffer as a result of his detention because he is the sole family breadwinner. The continuing education of his children is also likely to be disrupted if he is not released on bail.

(v)	His formal as well as informal business activities will suffer because he is solely responsible for their daily management and supervision. There are also matters that require his personal attention, conduct or travel out of Lae which will affect his business if he remained in custody.

(vi)	In regard to matters going to refusal of bail under the Bail Act, he asserts that those matters in s. 9 (1), (a) (b), (f), (g), (h), (i) and (j) of the Bail Act, do not apply. He avows that:

(a)	he will appear at the National Court mention dates including his trial if granted bail;

(b)	he will abide by all bail conditions. He will appear on reporting conditions if required and has shown that reliability while attending to his current District Court bail conditions;

(c)	he will not or likely to commit an indictable offence if he is not in custody;

(d)	 it is not necessary for his own protection for him to be in custody;

(e)	 he will not interfere with witnesses or the person who instituted the proceedings. 

(vii)	He can put up cash bail condition of K1000.00.

(viii)	Michael Amia, a community leader and member of the Law and Order Committee for Ward 5 Local Level Government Council and St. Patrick Catholic Church Catechist, Benny Bell being reliable persons of good community standing are willing to act as Guarantors and are able to pledge K500.00 each as surety towards bail.

(ix)	If allowed bail the applicant will reside and remain at his residence at Tent City pending his trial.

State's Objection to bail

12.	The State objects to the applicant's release on bail for reasons that:

(i)	the offence with which the applicant is charged consisted of a serious assault; (s. 9 (1) (c));

(ii)	the applicant is likely to commit another indictable offence if released on bail; (s. 9 (1)(d)

(iii)	the applicant has a history of threatening and intimidating witnesses and is likely to interfere with witnesses personally and through third party or agents. (s. 9 (1) (f)). 

13.	 These grounds have raised a number of matters under s. 9(1) of the Bail Act. Counsel, Mr. Done relied on two affidavits ascertaining proof of those matters against bail. The affidavit of Detective Senior Constable Max Makeso states that George Naemon's death was planned by Jacob Maragau after he was required to demolish the fencing which had encroached onto government reserve land. The affidavit further claimed that, when Jacob Maragau learned of the presence of George Naemon at Tent City, he instructed his son Tovo Jacob and brother, Chris Wepun Maragau to instigate a fight with the deceased and his group at Wima Trading. He followed later with others to the scene where George Naemon was stabbed and killed. Tovo Jacob and Chris Wepun Maragau were later committed to stand trial in the National Court. 

14.	The police detective further asserts from his information that, upon his release from custody, Jacob Maragau's relatives intimidated and threatened State witnesses. He was also seen in the vicinity of the witnesses' residence on one occasion at night. In his opinion, Jacob Maragau and his relatives are likely to interfere with and corrupt State witnesses if he is released on bail. He further stated that the applicant is capable of harming witnesses living in his same area of residence at Tent City. These assertions are supported by the Affidavit of Lazarus Naemon.

15.	Lazarus Naemon is the deceased's brother. He resides some 200 meters away from the applicant and had known the applicant for some 10 years. In his affidavit, Lazarus Naemon described Jacob Maragau as a violent and arrogant person with a prior conviction for assault. He also gave accounts of Jacob Maragau attacking and causing others serious bodily harm. His victims included his own relatives and other individuals from Yangoru, East Sepik Province living at Tent City. Lazarus Naemon feared that, Jacob Maragau will interfere with those witnesses residing in the neighbourhood if granted bail. 

16.	Lazarus Naemon also spoke of events immediately following Jacob Maragau's release from custody on 30th July 2010. He stated that Jacob Maragau's nephew Kenneth Alois whilst inebriated, accosted witnesses and threatened them at their residences at night. He listed other instances of possible interference in his affidavit as follows: 

•	31st July, 2010 about 10.00am, the same relative, Kenneth Alois together with another relative of the applicant, Manik Maipa confronted and shouted abusive words and threats against State witnesses Dominic Krasombi, Willie Livepari and his family. The tension that followed was quelled by community leaders.

•	On 22nd August 2010 Kenneth Alois and Manik Maipa with the knowledge and approval of Jacob Maragau provoked a situation in the neighbourhood with witnesses Dominic Krasombi and Willie Livepari, with their family members and relatives resulting in an all out fighting into the night with the applicant's group stoning the witnesses' residences and discharging a firearm at them.

•	On early morning of the fighting, the witnesses and their relatives damaged what they believed was a reinforcement vehicle sent by Jacob Maragau. They also harmed the driver who fled the scene with the vehicle. 

17.	Things are back to normal but Lazarus Naemon fears that, tension is likely to rise again if Jacob Maragau is release on bail. 

Ruling

18.	There is no issue that George Naemon died from multiple stab wounds. The charge against the applicant is related to that death. It involved a serious assault. The applicant's own son and younger brother have been committed and are remanded in custody to stand trial in the National Court on the same charge. Jacob Maragau is thoroughly implicated in the killing of the deceased by eyewitness statements on file. 

19.	I am satisfied on reasonable grounds that, the allegations against the applicant consisted of a serious assault under s 9 (1) (c) of the Bail Act. I am also satisfied that the State has made out a case against the applicant pursuant to s. 9 (1)(d) that, he is likely to commit an indictable offence if he is not in custody. The applicant's prior conviction for assault together with the history of assaulting his relatives and others from his Yangoru District, East Sepik Province living at tent City, Lae, is proof of his propensity towards violence. 

20.	There is further proof under s. 9 (1)(f) that, the applicant is likely to interfere with witnesses or the person who instituted the proceedings against him. Besides, reasonable inferences can be drawn from the materials before the Court that it is necessary for the applicant's own protection for him to be in custody. These inferences which are reasonably drawn from likely interferences with witnesses and likely commission of an indictable offence, satisfy s 9 (1)(e). 

21.	The grounds which prosecution has put forward against bail are not speculative. The affidavit evidence relied on by the State show compelling grounds for believing that Jacob Maragau will directly or indirectly through his relatives, servants and agents interfere with witnesses. From the same evidence, there are substantial grounds for believing the applicant will commit an indictable offence and further that, for his own protection, he should not be released on bail. 

23. 	The crucial factor in a bail application is for the State to establish the existence of substantial grounds for the belief that one or a number of those matters under s. 9 which it relies on to oppose bail will occur. That point was made in re: Keating (supra) Andrew J stated at p. 133:

"..... before the discretion to refuse bail arises, the court has to be satisfied that there are substantial grounds for believing that one or more of the events described in s. 9(1)(a), (b), (c), (d), (e), (f) or (g), will happen. It is the existence of substantial grounds for the belief, not the belief itself, which is the crucial factor: See R v. Slough Justices; Ex parte Duncan and Another (1982) 75 Cr. App. R. 384". (Underling mine.)

22.	In Re: Diawo [1980] PNGLR 148 the Court dismissed the application for bail because the State failed to produce any evidence to support its contention that the applicant would interfere with witnesses. See, also Vela Wari Vele v The State (2004) N2701 where Mogish J emphasise the point that, it is not enough for the State to state it's belief; it is obliged to call or rely on credible evidence to substantiate its belief. 

23.	The evidence adduced by prosecution on the existence of a number of those matters under s. 9 (1) (c), (d),(e) and (f) provide irresistible grounds for believing that one or more of the events described will happen. This meets the requirement on the State to produce evidence to substantiate the belief of a possible occurrence of one or a number of those matters under s. 9 which it relies on to oppose bail. 

24.	I am satisfied that the State has discharged the onus to establish those considerations it relies on under s. 9 of the Act. There are sufficient reasons given to refuse bail. The applicant must show reasons and special circumstances to justify his release on bail.

25.	Mr. Pais has put forward a number of propositions in support of the Court Court's exercise of discretion in his client's favour. He relies on the applicant's affidavit and the affidavits of proposed guarantors, Michael Amia and Catechist Benny Bell. 

26.	The main thrust of Counsel's submissions is that, the applicant has a health problem which will degenerate if he does not have easy access to medical facility. The lack of medical provision at Buimo Correctional Institution is not conducive to his good health. In addition, the welfare of his family and that of his business will likely suffer if he is not release on bail. These are factors which Mr Pais say amount to special circumstances. Mr Pais relied on Vela Wari Vele v The State (supra) as having similarities to this case. He submitted that, the applicant on a charge of wilful murder was granted bail after the court accepted the applicant's family welfare and his business as forming special circumstances for grant of bail. Counsel also relies on his client's undertakings under the Bail Act that he will abide by all bail conditions if granted bail. 

27.	The case of Vela Wari Vele v The State is clearly distinguished on the facts supporting the bail application. In that case, the State had opposed bail on the ground of likely inference of witnesses under s. 9 (1) (f) of the Bail Act. The objection, like in Re: Diawo was based on mere assertions of a belief that the applicant would interfere with witnesses. The courts in those two cases granted bail on the failure of the State to establish by credible evidence, its assertions against bail. 

28.	In the application before this Court, there is proof of assertions of interference with witnesses, there is proof of possibility of the applicant committing an indictable offence and there is proof of possibility of remaining in custody for his own protection. 

29.	The applicant's grounds for bail appear sound. But they have a glaring defect and lacking in substance. The grounds whilst pleaded in the accepted form and in conformation to the usual requirements, failed to directly address those matters which Detective Senior Constable Max Makeso and Lazarus Naemon asserted in their affidavits in opposing bail. This omission is critical to the bail application because the sworn affidavits specifically addressed the possibility that the applicant will commit an indictable offence and the possibility that he will interfere with witnesses if released on bail. These are substantial grounds supported by proof of facts on the basis of which a reasonable belief is formed that the applicant will likely breach his bail conditions and that his further detention is necessary. 

30.	Lazarus Naemon was quite detailed in his evidence of the threats and fights that ensued from Jacob Maragau's release from custody on 30th July 2010. He was also particular about Jacob Maragau's aggressive nature and his past record of assaulting other people, including a prior conviction by the court for assault. 

31.	Those factors are important considerations against bail and Lazarus Naemon appeared believable. The applicant and his proposed guarantors, Michael Amia and Catechist Benny Bell said nothing about those matters raised by the State. The proposed guarantors should have responded to the statements by Lazarus Naemon but they only speak generally of the applicant's good character and conduct. 

32.	In particular, Michael Amia who held himself out as a community leader and senior member of the Law and Order Committee for Ward 5 Local Level Government Counsel ought to have refuted those claims. He either did not know any of those instances of threats which Lazarus Naemon spoke of, or he deliberately attempted to mislead the Court. The applicant could have also called evidence from other community and church leaders to refute the evidence of Lazarus Naemon but that was not done. 

32.	 On the issue of the applicant's health, I am not satisfied for now that, it is an overriding factor for special circumstances consideration. Besides, the effect of the applicant's custody on his family, his children and business has not been convincingly articulated. Those factors submitted in the run-of–the-mill fashion remain vague. 

33.	The affidavits do not state specifically or relate examples and instances of difficulties that will be encountered in the family well-being or children's schoolings and the business activities if the applicant is remanded. The assumption is always that, in close-knit communities such as we have in Papua New Guinea, there is no shortage of helpers for the family and children if a parent or breadwinner is not immediately available due to detention, imprisonment or death. Similarly, for any well established family business, the assumption is that, the remaining family members and workers will ensure the business continues to trade. 

34.	The applicant ought to show substantial grounds for a belief that, his detention would put his social activity, his family welfare, employment, or business interests in jeopardy. In this case, the applicant has failed to show special circumstances based on those factors. Besides, he has not shown that his detention would either prejudice his defence or deny him the opportunity to adequately prepare his defence. 

35.	Finally, the issue of guilt or innocence does not arise on a bail application and indeed the strength or weakness of the States is not one of those considerations under s. 9 (1) of the Act. However, in my view, it may be relevant to consider the strength of the evidence against the accused, the scope of the prosecution case and the probability of conviction within the ambit considerations of interests of justice. In this case, the applicant is thoroughly implicated in the killing. This is a consideration against his release from custody, in the interest of justice. It is however not an overriding consideration. 

Conclusion 

36. 	In summary, the State has shown substantial grounds for believing that a number of those matters under s. 9 (1) of the Bail Act exist. In contrast, Jacob Maragau through his lawyers has not shown serious cause why his further detention in custody is not justified. He has not shown ascertainable cause for believing that those matters raised by the State are insignificant against the justification for him not to be in custody. 

32. 	The application is refused.
_________________________________________

Pais Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent