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State v Siminzi [2010] PGNC 58; N4060 (23 June 2010)

N4060

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 186 OF 2010

THE STATE

V

WIRI SIMINZI & WANIS KANOL

Mount Hagen: Makail, J
2010: 15th & 23rd June

PRACTICE & PROCEDURE - Bail application - Wilful murder - Grounds of - Welfare of applicants - Deteriorating medical condition - Serious ill heath - Deteriorating living conditions and over-crowdedness in detention centre - Whether exceptional circumstances shown - Bail granted - 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
Paul Guant -v- The State (2009) N3576
Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27th February 2008)
Paul Pawa -v- The State (2009) N3580
Counsel:

Mr C Kos, for Applicant
Mr J Kesan, for the State

RULING ON APPLICATION FOR BAIL

23rd June, 2010

1. MAKAIL, J: The applicants Wiri Siminzi and Wanis Kanol apply for bail pending trial in the National Court pursuant to section 42(6) of the Constitution and sections 4 and 6 of the Bail Act, Ch 340. Each of them has been charged with one count of wilful murder of one Peter Tospa at Lalgua village in Tambul District of this province on 5th October 2008 contrary to section 299 of the Criminal Code.

2. The alleged killing of Peter Tospa, it was alleged arose from a conflict between the applicants’ tribe and a nearby tribe called Alkena over the inadequacy of compensation by them to the Alkena tribe for a stolen pig. A fight erupted at the gathering and the applicants’ tribesmen chased the Alkenas away with bush knives, axes, sticks and stones. In the process, Peter Tospa was killed and it was alleged that the two applicants were the persons who killed him.

3. The applicants rely on two grounds. First, they say they are suffering from some serious ill health and need urgent medical treatment. Secondly, the living conditions at the detention centre at Baisu CIS had deteriorated and overcrowded to a point where it poses a serious threat to their health and lives. For these reasons, they claim their welfare has not been properly taken care of by authorities and their lives are at risk. Evidence of these factual matters may be found in each of their affidavits sworn on 09th April 2010 and filed on 10th May 2010 and an affidavit of Chief Superintendent Simon Sobaim sworn on 20th April 2010 and filed on 10th May 2010.

4. The State did not oppose bail but asked for strict conditions to be imposed on the applicants if bail is granted. Be that as it may, that does not mean that bail should be granted as a matter of course. The Court as one of the bail authorities under sections 1, 6 and 9 of the Bail Act, Ch 340 must consider the application on its merit and decide whether or not the applicant has made out a case for grant of bail and the onus is on the applicant to make out a case for bail. In a case where an applicant is charged with wilful murder, bail is not available as of right: see section 42(6) of the Constitution. It is granted at the discretion of the Court and the Courts have, in the past granted bail to applicants charged with wilful murder by applying the exceptional circumstances test. In other words, an applicant charged with 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. Where an applicant raises deteriorating ill health condition on a charge of wilful murder, is it an exceptional circumstance? In my view, the answer is, yes. I for one in past cases have held that to be the case in all cases including cases where an applicant is charged with wilful murder. But there is a qualification and that is, an applicant must establish by appropriate evidence his or her serious ill health before the Court may grant bail. Evidence of medical report from a reputable medical practitioner either in public health or private practice is relevant and will go a long way to establishing a meritorious and successful bail application: see my judgments of Kuku Hayara -v- The State (2008) N3488, Paul Guant -v- The State (2009) N3576 and Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27th February 2008).

6. In the present case, there is no doubt in my mind that the applicants are disqualified for bail by section 9(1)(c) of the Bail Act, Ch 340 because of allegations of use of weapons (axes, bush knives, sticks and stones) and serious assault in the killing of Peter Tospa on 05th October 2008, separate from the fact that they have been charged for wilful murder. But the applicants say that they are suffering from serious ill health such that there is a serious threat to their lives if they are detained. They have produced in each case a medical report from Dr John McKup of Family Medical Centre dated 27th March 2010 and I have considered them and note that the applicant Wiri Siminzi has peptic ulcer of the stomach while the applicant Wanis Kanol has chronic renal disease. Dr McKup suggests that they have been suffering from these illnesses for a long time prior to their detention.

7. It is also noted that both applicants suffer high blood pressure. According to Dr McKup, both applicants had experienced giddiness and fainting episodes. He also suggests that each applicant’s ill health may have been aggravated by the solitary confinement at Baisu CIS. To my mind, each of the applicants suffers a number of illnesses which poses a very serious risk to their lives. I consider that each applicant’s case is very similar to Paul Pawa -v- The State (2009) N3580 where the applicant in that case had high blood pressure while being held in custody at Baisu CIS. I granted him bail on medical grounds. There, I observed at pp 13 & 14:

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

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

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

8. I see no reason to deviate from that decision in the present case. The applicants in this case suffer serious illnesses which require close monitoring and observations by a doctor. This in turn require constant visits or medical check ups. This can only be done if they are out on bail as I note, there are no longer regular visits by remandees to Mt Hagen General hospital due to security reasons, in that, remandees and prisoners have taken the opportunity to escape. In my view, serious injustice will be caused if the applicants’ serious illnesses are not attended to adequately. They ought to be given bail so that they may seek proper and adequate medical treatment.

9. In so far as their proposed guarantors are concerned, I am satisfied based on the evidence in their respective affidavits sworn on 8th April 2010 and filed on 10th May 2010 that Pastor Simon Siria and Councilor William Kulu are respectable persons in the community where the applicants hail and no doubt would ensure that the applicants abide by any condition of bail if bail is granted. I accept them.

10. Further, in relation to any concern that may arise in relation to the applicants’ safety under section 9(1)(e) of the Bail Act, Ch 430 if they are granted bail, I am satisfied based on the evidence of the village Court magistrate Pipe Pawa in his affidavit sworn on 14th April 2010 and filed on 10th May 2010 that it is highly unlikely that the applicants will be threatened, assaulted or killed by the relatives of Peter Tospa because the conflict was settled by way of customary compensation following the killing on 05th October 2008. It is said, on 02nd January 2010, K200,000.00, 130 pigs, 2 cows and 2 cassowaries were given to the relatives of Peter Tospa. This, in my view is sufficient compensation although it will not fully compensate them for the loss of Peter Tospa.

11. For the forgoing reasons, I am satisfied that the applicants have made out an exceptional case for bail to be granted and grant it. As I have upheld the application on medical grounds, it is not necessary for me to consider the second ground in relation to the deteriorating living conditions and over-crowdedness at the detention centre at Baisu CIS. Bail is, therefore, subject to the following conditions:

1. They shall not interfere with any State witnesses while on bail.

2. They shall reside at Lalgua village each day between the hours of 6:00 pm and 6:00 am.

3. They shall not leave the Western Highlands Province under any circumstances while on bail unless with leave of the Court.

4. They shall report to the Assistant Registrar of Mt Hagen National Court on the first Monday of each month between the hours of 9:00 am and 3:00 pm.

5. They shall appear before the National Court for call over whenever required.

6. They shall each pay K1,000.00 cash bail.

7. The guarantors Pastor Simon Siria and Councilor William Kulu shall each pay K250.00 cash surety for applicant Wiri Siminzi and a further K250.00 cash surety for applicant Wanis Kanol, giving a total sum of K1000.00.

Ruling accordingly.
______________________________
Paul Paraka Lawyers: Lawyers for the Applicants
Acting Public Prosecutor: Lawyers for the State