N4075

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No. 29 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:

AISI KOEBA
Applicant

AND:

THE STATE
Respondent

Waigani: Kawi, J
2010: 24th & 25th March, 2010

CRIMINAL LAW – Practice and Procedure – Bail application – Practice and – Offence of wilfull murder – Section 300(1)(a) of Criminal Code – Bail Act – Section 9 (1)(c)(i)(ii)(iii) established in commission of the crime – section 9(1)(e)- Accused to be held in custody for his own safety-Section 9(1)(f) – Interference with witnesses who are all family members. Interference with state witnesses a real possibility- ground established– Welfare of 8 month old child and welfare of family not established-Accused need to produce Medical and Welfare Reports showing living and health conditions of family- Accused doing his Apprenticeship in motor mechanic – should have foreseen natural consequence of his actions- nature of the crime of murder – a very serious crime – Accused has not discharged onus of showing why his continued detention is not justified.–Bail is refused.
 
Cases cited:

Re Fred Keating v. The State [1983] PNGLR 133
Herman Kagl Diawa [1980] PNGLR 148
Beko Job Paul [1986] PNGLR 97
Bail Application of Derrick Noki (2010) N4072
Philip Maru and Arua Oa –v- the State [2001] N2045

Counsel:

Mr S. Sam, for the Applicant 
Mr. A. Bray, for the Respondent

RULING

25th March, 2010

1. KAWI, J: The applicant Aisi Koeba applied for bail pursuant to Sections 4 and 6 of the Bail Act. He is charged with one count of murder contrary to Section 300(1) of the Criminal Code.

2. The brief facts constituting this charge are taken from the short statement of facts which is annexed as annexures ”A” to the affidavit of Aisi Koeba sworn in support of his application on the 19th of December 2010. 

EVIDENCE IN SUPPORT OF APPLICATION

3. In his support of his application for bail, apart from relying on his own affidavit, the accused also relied on the affidavit of his proposed guarantors, namely Joseph Miria sworn on the 16th December 2009 and the affidavit of Nicholas Koeba also sworn on the 16th December 2009.

FACTS

4. The brief facts constituting the charge of murder is taken from the short Police summary of facts and annexed to the affidavit of the accused. It alleges that on the 14th of December 2009 at Korobosea village here in the National Capital District the accused and the deceased were involved in a very bitter, heated, and emotional argument. In the course of this argument, an altercation broke out between the two. Both traded punches and kicks at each other. It is alleged that during the fight the deceased picked up a stone and hit the accused somewhere on his body. The accused in turn picked up the same stone, and hit the deceased on his head causing a deep laceration. The deceased was taken to the Port Moresby General Hospital, and hospitalized in the Intensive Care Unit where he stayed for three days, but was unable to recover from the wound. He died three days later.

GROUNDS RELIED UPON

5. The accused advances and relies upon the following grounds in his bail application:

(a)	He has an 8 month old child and his family which he needs to support. He submits that I should consider the welfare of his young family as being paramount.He submits that I should consider the welfare of his family as being paramount.

(b)	The accused is an apprentice motor mechanic. Currently he is employed by Auto Parts Limited where he is undertaking his Apprenticeship. A grant of bail will enable him to go back to the Auto Parts workshop and complete his apprenticeship. 

(c)	He further submits that none of the considerations enumerated under Section 9 of the Bail Act exists and so he should be granted bail.

OBJECTIONS BY THE STATE

6. The State on the other hand opposes bail. 

(a) The first ground relied upon in their opposition to bail is that the consideration under section 9(1)(e) of the Bail Act. It is submitted in this regard that the accused and the deceased are relatives. Many of their relatives and family members are still grieving. Since the murder, relatives have taken sides and so the situation as it is, is very tense and volatile. His release on bail may provoke an already tense environment sparking off some more family violence. In addition there is no guarantee that the accused himself will be safe if released on bail. Hence the accused should be kept in custody for his own safety and protection.

(b) Secondly the nature and gravity of the offence is very serious and in the interest of justice the applicant should be refused bail. The case of Beko Job Paul was cited as the authority for the proposition that the nature of the offence is in itself a very serious offence and so the interests of justice required that the accused should be kept in detention. 

(c) It was submitted that the fact that the accused and the deceased are relatives, means that all the witnesses will naturally be family members and relatives. Being relatives, all of them live in the same locality at Korobosea No. 2 village. It was submitted that there is a risk that releasing an accused person on bail in such circumstances may provide an avenue for such an accused person to interfere with family members and relatives who will be witnesses for the State. Hence it was argued that the consideration under section 9 (1) (f) has been shown to exist. 

(d) Finally the murder involved all the considerations stipulated under section 9(1) (c) (i) (ii) (iii) of the Bail Act. That is to say that there were actual threats, violence and serious assaults occasioned by the accused upon the body of deceased which eventually led to his ultimate death. An offensive weapon, namely a stone was used to commit the murder. Hence the considerations under section 9(1)(c )(i) (ii)(iii) are all present.

7. Given the presence of all these considerations under section 9 of the Bail Act it was submitted that bail should be refused. 

8. When deliberating on the question of bail, one need not consider the material or information available in support of or against bail in minute detail and apply to it, a higher standard of proof. Section 9(2) of the Bail Act states that the Court is not bound by strict and technical rules of evidence, but may act on such evidence as is available to it.

9. This in my view extends to discretionary admission of facts in the interests of justice. If I am satisfied on reasonable grounds that one or more of the Section 9 considerations exists, on the evidence available, then I must refuse bail. If they do not exist, then I must grant bail.

THE LAW ON BAIL

10. The law on bail has been clearly stated in many cases. Section 42(6) of the Constitution guarantees ‘’every person charged, arrested or detained for an offence other than treason and willful murder to bail at all times from arrest or detention to acquittal or conviction unless the interest of Justice otherwise requires’’. In the case of Herman Kagl Diawa [1980] PNGLR 148, Kearney, DCJ reiterated an accused person’s right to bail as follows; ‘’it is clear from Section 42(6) of the Constitution that an applicant is entitled to bail during the course of his trial, unless the interest of Justice otherwise requires.”

11. The Bail Act then gives effect to Section 42(6) of the Constitution. This right to bail is however not automatic. The right to bail is qualified by the prescriptions enumerated under Section 9 of the Constitution. This means that Section 9 of the Bail Act sets out the criteria which may operate as a bar to the grant of bail. However bail should not be refused for this reason alone. The Supreme Court decision in Re Fred Keating [1983] PNGLR 133 now makes it clear that even if one or more of the considerations under Section 9 are shown to exist, the court still has the overriding and unfettered discretion to grant bail, with the applicant bearing the onus of satisfying the court as to why his continued detention in custody is not justified. Section 9 of the Bail Act is in the following terms;

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.

Let me now address the objections by learned counsel for the State.

12. The crime of murder involves actual violence and actual threats. Accused persons often enlist the aid of missiles and weapons to effect their intentions whether intentionally or accidentally. Such was the case here where it is alleged that the accused enlisted the aid of a rock to hit the deceased on the head. Whether this was an accidental or intentional hit which led to the eventual death is a different matter. But the Police facts allege that a missile or a projectile, namely a stone was allegedly used in the commission of this crime. The court accepts this evidence for purposes of this bail application. The accused submits that no firearms or imitation firearms were used in the commission of this offence. It is argued that the use of any weapons are evidentiary matters that needs to be strictly proven at trial and until that happens, this are mere allegations and should not form the basis of refusing bail. 

13. It is true that at this stage, the accused has the presumptive right of innocence in his favour. But that does not in itself water down the State's case. The process of eventually determining the guilt or innocence of the accused has just started and it is in motion to eventually determine guilt or innocence according to law. Until that happens, I can only exercise my discretion whether to grant or deny bail on the strength of the materials before me. Whilst I accept that no firearm or imitation firearm was used in the commission of this offence, that does not diminish the seriousness of the offence. I find from the Police summary of facts that a missile or projectile namely a stone was used in the commission of this crime. Hence I find that all the considerations under section 9(1) (c)(i)(ii)(iii) were all satisfied at the time of the commission of the offence.

14. The next objection is based on Section 9(1)(e). It is feared that releasing the accused will not guarantee his safety, as other renegade members of the family may want to avenge the death of the deceased upon him and his being on bail may present the perfect opportunity for a revenge killing. The Police investigator Senior Constable Richard Triga deposes to this fact at paragraph 5 of his affidavit. Furthermore his release on bail may provoke a breach of peace in an already volatile environment. The accused argues through his Counsel that if released the accused will not reside with his relatives at the same locality, at Korobosea village, but will reside with his parents in a different locality. Whether it is the same locality, or a different one, I do find that the safety of the accused will not be guaranteed. I also accept that his release on bail may be the perfect spark to ignite some more family violence among the family of the deceased and the family of the accused. I am quite satisfied that the accused should be held in custody for his own safety and protection. The consideration under section 9(1)(e) of the Bail Act is established.

15. It was further submitted that if the accused is released on bail there is a likelihood of the accused interfering with State witnesses as after all the witnesses will be his extended family members and relatives. I accept this as being a legitimate concern and find that the consideration under section 9(1) (f) of the Bail Act has been established.

16. The final objection is based on the nature of the offence itself. It was submitted that I should consider that the murder of a person is in effect taking the life of another fellow human being. Society's abhorrence to this crime stems from the Ten Commandments in the Holy Scriptures. The modern State recognizes this not only as a sin that violates the Ten Commandments, but as a crime and has legislated the taking away of another life by another person as a serious indictable offence which is punishable by very stringent sanctions and punishments. In 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. The crime of murder is no doubt a very serious indictable offence. 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." The Court finds that the nature of the crime of murder is in itself a serious matter warranting the continued detention of the accused in custody.

OTHER CONSIDERATIONS

17. The applicant further submitted that I should nonetheless exercise my discretion to grant bail in the interest of justice, citing the case of Re; Fred Keating [1983] PNGLR 133 as authority for this proposition. In this regard, he submitted that I should take into account the following in exercising my discretion: - 

The accused has an eight month old child which he needs to support by his continued employment as an apprentice mechanic. There was nothing tangible such as a medical report or a Report from the Welfare Office produced to demonstrate that the well being of infant and the family. Even the accused could have obtained affidavits to this effect from his wife and her ability and difficulties in meeting the family needs. Surprisingly also the nominated guarantors are silent on this issue. They do not say any thing about the welfare of the wife and the eight month old child and how the absence of the father from the house is jeopardizing the welfare of the family. This begs me to really question whether this is a genuine reason or what I would term as a ground of convenience. I am therefore not satisfied as to this ground. In the Bail Application of Derrick Noki (2010) N4072, one of the grounds relied upon in the bail application by the accused person was to look after his young child and the young pregnant wife who was about to give birth to their second born child. In refusing bail I made the following comments: 

"The last argument advanced by the accused in support of his application for bail is that he has a very young family and therefore needs to be out on bail to look after his family. He argues that he has an infant child and his young wife is expecting their second child. It is argued that his release on bail will be for the welfare of his family.

The accused did not depose to any facts in his affidavit outlining the living conditions of his young family. Neither did he depose to the state of the health of his wife or his young child and the unborn child. He did not even annex a medical or a welfare Report of the health and living conditions of his family. In absence of this documentary evidence, how does he expect me to believe him? There is nothing on file to show the general living conditions of his family."

18. I also adopt similar sentiments expressed by my brother Kandakasi J 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 on bail. There is a 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 basis. If an applicants 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 both these statements as being equally applicable to the circumstances of this case. The accused has therefore not discharged the onus of satisfying the Court as to why his continued detention is not justified.

20. The final ground that was relied upon by the accused is that his release on bail will enable him to complete his apprenticeship training as a motor mechanic and proceed on to do his tradesman training. Whilst I am very mindful of Section 9(2) of the Bail Act, that I am not bound by strict and technical rules of evidence and procedure in a bail application, the Court is of the view that at least the accused should have produced a short letter from his employer attesting to his apprentice training and the kind of training program he was placed under. Whilst he is in custody those who support him could have easily done this. Than again this is a ground that should have been well considered before the commission of the offence, if indeed the applicant was the perpetrator of the murder. Being held in custody is the natural consequence of committing a crime in the first place. He should have foreseen the natural consequences of his actions. The applicant here is an educated man and he should have exercised a certain degree of restraint. In saying this I am mindful of the fact that an accused person is innocent until proven guilty according to law. At the same time I am also mindful of the fact that a legitimate criminal justice process which is also provided for by the Constitution is now set in motion that will eventually determine the guilt or innocence of the accused according to law. There must therefore be a presumption that the accused has been charged and detained on some proper legal basis. That is why the Bail Act is enacted with the section 9 provisions in it. I am not convinced that this is a good ground that warrants the exercise of my discretion to grant bail. 

21. The court finds that all the considerations under section 9 of the Bail Act have been established and the Court would refuse bail on those bases. Even the applicant has not discharged the burden of showing why his continued detention is not justified. The grounds that he relied upon are not convincing at all to warrant the exercising of my discretion in his favour.

22. Accordingly bail is hereby refused and the accused is to be remanded in custody until trial or bail being granted by another Court. Under Sections 6 and Section 13 of the Bail Act, the applicant may make further applications to this Court or the Supreme Court at any stage of the proceedings.

GUARANTORS

23. As the Court have refused bail it is not necessary for me to give my reasons for either approving or rejecting the guarantors.

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