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Makovu v State [2010] PGNC 250; N4038 (20 May 2010)

N4038

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO. 178 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:

PAUL MAKOVU, COSMAS MARE, JOE DAVID, AND WILLIE SENEKA
Applicants

AND:

THE STATE
Respondent

Kimbe: Kawi, J
2010: 10th & 20th May

CRIMINAL LAW - Practice and Procedure – Bail application – Practice and – Offence of wilful murder contrary to Criminal Code – Section 299(1) – 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, seriousness and prevalence of crime operates as sufficient factor against bail being granted – Need to balance individual interests of an accused person to be out on bail and protection of 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 –excuse of attending to oil palm blocks need to show proof of ownership of blocks – need to demonstrate the run down state of the oil palm blocks and how much income derived from the blocks- general statement that an applicant needs bail to organize for a caretaker to manage oil palm block is not sufficient- one of the proposed guarantors is a family member– possible apprehension of bias and placing himself in a conflict of interests situation –family member as guarantor not approved- other guarantor is a neutral person- Neutral person as a guarantor is approved- Accused persons have not discharged onus of showing why their continued detention in custody 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, Unnumbered judgment of Kawi J dated 2nd March 2010
Casper Wynneberger –v- The State, Unreported Judgment of Kawi J dated 11th March 2010
Philip Maru and Arua Oa v State [2001] N2045

Counsel

Mr. R. Awalua, for the Accused /Applicants
Mr C. Sambua, for the Respondent

RULING

20th May, 2010

1. KAWI, J: Paul Makovu, Cosmas Mare, Joe David, and Willie Seneka are all co-accused who have been charged with the alleged willful murder of one Wellington Ngava at Davevoa Hamlet, Buluma village, Hoskins in the West New Britain Province on the 26th of February 2010. All of them have been charged with one count of wilful murder contrary to section 299(1) of the Criminal Code. They are remanded in custody and are awaiting the committal process to be finalized. Whilst 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 all four co- accused alleges that on the 19th February 2010 at Davevoa Hamlet, Buluma village the deceased one Wellington Ngava was with his cousin one Herman Sumua when he received a telephone call from his girl friend to see her later that night. The deceased did meet his girlfriend that night near her house They were heard whispering by the mother of the girl who woke her husband up and he is alleged to have chased the deceased away with a spear. The deceased then went and regrouped with his cousin brother and came back to see his girlfriend’s father and question him as to why he was chased away with the spear. When the deceased and his cousin brother, arrived at his girlfriend’s house, they were requested to go away by his girlfriend’s mother. They did not. At this time the accused Paul Makovu, who was asleep in a nearby house was awoken by an old man and he came onto the scene with a bush knife which he used to slash the left arm of the deceased when he put up his hand to protect his face. With this injury the deceased began to run away. But he was hotly pursued by the defendants. Subsequently the second accused, Cosmas Mare is alleged to have armed himself with a stone and hit the deceased on the right shoulder which caused him to fall onto the ground. While he was lying on the ground, the accused persons Paul Makovu, Willie Seneka and Joe David are alleged to have struck him on the head three times with a bush knife. The deceased died from these bush knife wounds.

The Application

3. In making this bail application the four (4) co-accused swore affidavits dated the 26th April 2010 which they all rely upon. In addition, they also rely upon the affidavits of their proposed guarantors also sworn on the same dates. The proposed guarantors are Augustine Tori and Julius Dede. Both guarantors pledge a surety of K300.00 each and severally for all four 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 for Bail Application

Paul Makovu

4. Paul Makovu relies on the following grounds in support of his application for bail:

(a) This accused is a 24 year old bachelor who stays with his grandparents. He is concerned about the welfare of his grand parents who look after and take care of him after his biological parents separated.

(b) Secondly he is very concerned about his oil palm block. With his aging grand parents, there is really no one who could look after his oil palm block.

Joe David

5. The applicant Joe David is also a 24 year old bachelor who relies on similar grounds.

(a) Both his parents are old and he wants to be granted bail so he could arrange for a caretaker to manage his oil palm blocks.

(b) He argues that he is a young man and does not want to be influenced by the bad habits of the remandees and prisoners at Lakiemata prison. He wants to get out on bail so he can stay away from being influenced by these bad habits.

Cosmas Mare.

(a) This applicant says that he is a divorcee, who has three children. He wants to be released on bail so that he could arrange for someone to look after his children. At the moment he does not know who will look after his children.

(b) Secondly he has an oil palm block and he does not know who is looking after his block which provides the only source of income for him and his three children. He wants to be released on bail so he can arrange for some one to be a caretaker of his oil palm block.

Willie Seneka

(a) This applicant is a 23 year old bachelor. He says that he is now badly influenced by the bad influences of prisoners and remandees. He wants to be released so that he can avoid this bad habits and negative influences.

(b) Secondly he is concerned about the management of his oil palm block. He states that his father is now old and there is no-one to assist his father to look after his block. He wants to be released on bail so he can assist his old father to look after his oil palm block.

Objections by the State

6. Counsel for the State objected to bail being granted. His principal objection is based on section 9(1)(c)(i)(ii)(iii). It is argued that there were actual threats and actual violence used. The violence consisted of using a bush knife and stone to perpetrate the crime. Police allege that the bush knife was initially used to slash the arm of the deceased when he tried to protect his face with the arm. Subsequently he was hit with a stone and he fell to the ground. And as he was lying on the ground the bush knife was used to cut him several times which eventually led to his death. The other objection is based on section 9(1) (f). It is argued that because this crime was perpetrated in Buluma village, naturally all independent State witnesses will have to come from Buluma village. And so releasing the accused applicants on bail, there is a real likelihood that there may be some interference with State witnesses.

THE LAW ON BAIL

7. 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.

Section 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.

8. Let me address the objections put forward by learned counsel for the State and the submissions in reply by the learned counsel for the accused.

9. The principal objection is based on section 9(1)(c)(i)(ii)(iii). It is argued that there were threats of violence and actual violence used to perpetrate the murder. The threats of violence consisted of the deceased being chased away and the accused persons hotly pursuing him and throwing stones at him to hit him and slow him down so that they could catch up with him. The actual violence consisted of using a bush knife and a stone to hit and injure the deceased. It was the use a stone that forced him to fall on the ground. And while he was lying on the ground he was punched and kicked. Prior to that the same or another bush knife was used to slash him on the hand when he tried to protect his face with his hand. And when he was lying down, a bush knife was used to cut him on the head three times. I find that actual threats and actual violence were used to perpetrate the crime of the wilful murder of the deceased. I am satisfied as to the existence of all the considerations enumerated under section 9(1)(c)(i)(ii)(iii). I therefore find that the State has made out the considerations prescribed under section 9(1)(c)(i)(ii)(iii).
10. The final objection is based on section 9(1)(f) – That is to say that if the accused persons are released on bail they may be likely to interfere with State witnesses. The fact that this crime was committed at Buluma village means that primarily the State witnesses will all have to come from Buluma village. All accused persons propose to reside with their parents and relatives at Mai village if bail is granted. Mai village is the neighboring village to Buluma village both located along the highway towards Hoskins airport. In those circumstances I am of the view that there is therefore a risk that releasing the accuseds on bail will result in the accused persons possibly interfering with some State witnesses.

I am therefore satisfied that the State has established the consideration under section 9(1)(f).

11. Counsel for the accused persons argues that even if the court finds that the considerations under section 9 exists the court must use its discretion to grant bail to the accused persons. He cited the case of Re: Fred Keating as authority to support his contention. Whilst I generally agree with learned counsel, I am of the view that the exercise of my discretion is dependent upon the accused person advancing good grounds to convince the court to exercise that discretion in their favour. The burden is upon the four accused persons to satisfy the court as to why their continued detention in custody is not justified. The accused persons have indeed relied on and advanced grounds which they say is sufficient to discharge that burden to show cause as to why their continued detention in custody is not justified.

Other considerations

12. In my view, the factors enumerated under section 9 of the Bail Act are not conclusive and exhaustive and limited in their application to section 9 only. Section 9 of the Bail Act in my view does not prevent the Court from taking into consideration other factors to consider whether bail should be granted or not. This include the grounds relied upon by the accused persons.

13. The principal grounds which the applicants rely upon in their applications is their concern for the welfare of their families which includes their children and the health of their parents and grand parents. The accused persons also claim that their respective hectares of oil palm blocks would need their immediate attention. These blocks they say will not be tended to and looked after while they are locked up in jail. They want to be released on bail so that they can organize for someone to take care and manage their properties on their behalf while they are in jail.

14. Nothing was put before the court on how each of these respective applicants were caring for or looking after their respective parents or grand parents even their respective oil palm blocks before their detention. 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 their families and how the families are now suffering because of the absence of the accused persons who are being held in custody. The accused persons did not adduce any facts to show how old their parents or grand parents were and what their respective medical conditions were like. All they assert is that they are old and sick and are ageing.

15. In my view the applicants 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. The consequences of one's own careless conduct should not form the basis of a bail application. The accused persons should have considered the welfare of their families first and foremost before engaging in conduct where their characters are now being called into question. Now that their conduct is being called into question family welfare suddenly becomes a matter of great concern and priority. The accused persons did not adduce any evidence at all to show the general living conditions of their respective families prior to them being taken into custody and how the families are now suffering as a result of their detention. I am not convinced at all that family welfare concerns is a ground on which I can exercise my discretion to grant bail.

16. In relation to the argument on arranging a caretaker to manage their oil palm blocks, the accused persons did not adduce any evidence to show firstly their ownership of their respective oil palm blocks. Any person on the street can simply claim ownership of an oil palm block without actually owning it. This can be easily done by getting a letter verifying ownership from the Office of the Oil Palm Industry Corporation (OPIC) or from the Lands Department. The accused persons also did not adduce any evidence to show the state of their respective blocks. This included any evidence to show whether the blocks were already run down or whether they were being mismanaged. And if they were being mismanaged the accused should have at least included a Bank Statement or a Financial Return to verify their ownership of the blocks and the kind of income they were earning from the blocks before their detention and after their detention. A general statement that they should be released so that they can organize for someone else to care take their blocks is not sufficient to say the least.

17. This is not a good convincing ground that would warrant exercise of my discretion to grant bail. The court is of the view that reasons associated with coming out on bail for purposes of organizing for some else to manage the oil palm blocks are just convenient excuses which have no real merits in them.

18. 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 v The State [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".

19. I adopt those comments and apply them as being equally applicable in the circumstances of this case. The consequences of their conduct is not a good convincing ground at all for a bail authority to exercise its discretion to grant bail.

The accused persons have not discharged the onus of satisfying the court as to why their continued detention in custody is not justified. The accused also argue that they are now being influenced by the bad ways of prisoners and remandees while in custody. The court finds that this is a natural consequence of being in jail. Accused persons must understand that serious allegations of wilful murder are now being alleged against them. It is for this reason that they are now being held in custody. It is therefore a natural consequence of being held in custody that they will encounter inmates whose conduct they disapprove. The accused persons are adults and not little kids. If they do not approve the behavior of other persons, than they must simply stay clear of such inmates. The Bail Act is not the avenue to solve such problems of people badly influencing other people.

20. Neither is the Bail Act intended to solve problems of inmates badly influencing other inmates. In the end I find that the accused persons have not discharged the burden of satisfying the court as to why their continued detention in custody is not justified. I will therefore not exercise my discretion to grant bail on the basis of the grounds submitted by the accused persons.

Other Grounds For Refusal of Bail.

21. Let me now consider other grounds on the basis of which I will refuse bail.
The first of such a ground which I will consider here is the nature of the offence itself. Neither Counsels addressed the Court on this issue. But this does not stop me from considering this aspect in the exercise of my discretion.

22. In Beko Job Paul v The State [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 in itself warrants the continued detention of the accused persons in custody.

23. The second ground I consider here is the interest of the accused persons to be released on bail and return to their community, and the interests of their community at large. I must balance those individual interests with the interests of the majority law abiding citizens of a society at large. The accused persons say that they intend to return to the Mai community if they are granted bail. And so I ask myself; Is it in the interests of the law abiding citizens of the Mai and Buluma communities, that persons who are accused of wilful murder of a member of the Buluma community return to their communities. Their return to their community of Mai may cause possible apprehension of fear in the lives of ordinary peace loving members of the community or it may even spark off fresh violence from the relatives of the deceased.

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 community's interests is encapsulated in the phrase "interests of justice." His Honour defined community interests in the following way when referring to section 42(6) of the Constitution and section 3 of the Bail Act: "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. I have already found the existence of the considerations under section 9(1)(c )(i)(ii) (iii) and section 9(1)(f).

27. Clearly it is in the interests of an accused person to be released on bail. But I am equally mindful of the interests of the society as noted above 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. In this regard the court is of the opinion that the interests of law abiding citizens of a community dictate that they be protected from offenders or those who are alleged to have offended.

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 prevalence of the offence and the seriousness of the crime of wilful murder in this case is a serious matter warranting the continued detention of the accused in custody. The interests of the wider community of law abiding citizens militate against the accused persons being released on bail.

30. The third consideration which I address is the accuseds person's right to bail under Constitution section 42(6) and his presumption of innocence guaranteed by section 37(4)(a) of the Constitution.

31. 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 from arrest or detention to acquittal or conviction unless the interest of justice otherwise require.

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

33. 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. These considerations under section 9 of the Bail Act may at times operate as a bar to the grant of bail.

34. It appears that the arguments proceeding on the basis of Constitution section 42(6) coupled with the presumption of innocence provision under Constitution section 37(4)(a) does not mean that bail is a matter of course or that bail is automatically granted when an applicant requests for bail. In my judgment this 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.

35. This is so in the present case. The accuseds persons are held in custody because it is alleged that they acted in concert with each other to perpetrate the taking way of the life of another innocent person. They are therefore held in custody for good legal reasons.

36. In my view under Constitution section 42(6) and section 9 of the Bail Act, bail is not automatic. 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.

37. There is also a public policy reason why I will refuse bail. Here in Kimbe there is a very high number of bench warrants being issued to arrest people who either escaped from custody or who have skipped bail conditions. The total number of bench warrants for Kimbe is 270. About three quarters of the bench warrants issued are for those who have skipped bail. This is quite staggering. This strikes at the ability of the courts to manage and monitor its crimes list for the month. And so it is incumbent upon the Courts to carefully assess a bail application before exercising its discretion to grant bail. The courts must always weigh the interests of the accused persons applying for bail and have that balanced out with the interests of the civil society at large. The courts must also be mindful of factors such as accused persons skipping bail, when it decides to grant bail. Where persons on bail skip bail, then the courts should immediately call up the guarantors and enforce the pledge they made when guaranteeing the bail. Only in this way guarantors will feel responsible to exercise some restraining influence on accused persons on bail. Even then guarantors must not simply pledge a surety amount. They should make an upfront payment before an accused person is released.

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.

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

40. 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

41. The accused persons have nominated two persons as guarantors. The first person being proposed as a guarantor is Mr Augustine Tori, who is a village elder of Mai village and also a Ward Committee member. He has made a pledge of K300.00 to be paid if the accused skips bail or breaches other bail conditions.
The other proposed guarantor is Mr. Julius Dede. He deposes to being the elder brother of one of the accused persons. He also pledges that a surety of K300.00 to be paid if the accused persons are released on bail and breach any of their bail conditions or skip bail. Both guarantors say that if released on bail the accused persons will return to their village of Mai.

42. They further undertake to ensure that the offenders do not skip bail and abide by every bail condition that is set by the Court if bail is granted.

43. In their respective affidavits, one of the guarantors deposes that the offenders have been "decent, honest and peace loving persons". I find this statement to be a blatant contradiction with the fact that the accuseds are now charged with a very serious indictable offence, the very nucleus of it being acts of violence, breach of peace and aggression. To classify the accused persons as "decent, honest, peace loving persons" may turn out to be a misnomer after all. I accept all the pledges of the guarantors. But what concerns me is this: One of the guarantors is a family member of one of the accused persons. Being a family member there is really no guarantee that the accused person will listen to or take heed of the advice of a family member. I have very grave doubts that these guarantor will ever exercise some kind of restraining influences upon the accused persons if released on bail. So even if I release the accused persons on bail, there is no guarantee that they will ever listen to their brother or a relative and place themselves again under their restraining influence. I therefore have very grave doubts about the strict observance and adherence to the bail undertakings by the applicants and their guarantors. I find that the bold Statement that the accused persons have been "decent, honest and peace loving persons" may be more a misnomer than a genuine expression of frankness at its highest.

44. No doubt I would have readily approved Julius Dede as a guarantor but for the fact that he is a biological family members of one of the applicants. In so saying I am very 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. The Supreme Court when refusing bail in Charlie Posanau & David Koyama v. The State made these cautionary remarks in relation to guarantors who are related to the applicant: -

"We have noted that, the proposed guarantors are all related to the two applicants. On these grounds we are of the view that there may be some apprehension of bias and conflict of interests involved. The risk of absconding bail would be much higher as compared to a guarantor who was a neutral person." Malaki Kongo & Joe Akusi v. The State [1996] N1544. See also Paul Guan v. The State [1999] N3576.

45. I reiterated this caution in a number of cases where I refused bail. In Cletus Waffi –v- The State, unnumbered judgment of Kawi J dated 2nd March 2010, I refused to approve the elder brother and uncle of the prisoner as guarantors. Similarly in Casper Wynneberger –v- The State, Unreported Judgment of Kawi J dated 11th March 2010, 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".

46. I would adopt and apply those comments here. The chances one of the guarantor, Julius Dede placing himself in a conflict of interest situation is very real here than if neutral persons were nominated. There is also the possible apprehension of bias on his part which I find is real here than in the case of Augustine Tori who I find is more neutral person. I doubt that Julius Dede will do any better job now than he was before the commission of the crime. Despite their many undertakings I am not convinced at all the accused persons will ever listen to their guarantors or bring themselves under their restraining influences. If the accused persons were law abiding, "honest, decent and peace loving" citizens as they claim they are, then they should not have been involved in the alleged killing of another person.

47. For all these reasons the court will not approve the nomination of Julius Dede as a guarantor. The court will however approve Augustine Tori as a guarantor. However bail will be refused and the accused persons are further remanded in custody until a proper trial of this case.

__________________________________________________________________
Paraka Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent