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Undaba v State [2010] PGNC 95; N3967 (15 March 2010)

N3967

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

M.P. NO. 51 OF 2010

IN THE MATTER OF AN APPLICATION FOR BAIL

BETWEEN:

PHIL UNDABA
Applicant

AND:

THE STATE
Respondent

Mt. Hagen: David, J
2010: 12 & 15 March

CRIMINAL LAW – application for bail – applicant charged with offences of wilful murder and attempted armed robbery – relevant considerations - exceptional circumstances must be shown in application involving wilful murder – applicant to show cause why continued detention not justified – no exceptional circumstances shown – application refused.

Cases cited

The State v. Kwambol Embogol (1977) N91
Paul Louis Kysely v. The State [1980] PNGLR 36
Re Herman Kagl Diawo [1980] PNGLR 148
Re Fred Keating v. The State [1983] PNGLR 133
Re Kou Dua [1984] PNGLR 22
Malaki Kongo & Joe Akusi v. The State (1996) N1544
Bernard Juale v. the State (1999) N1887
Triga Kakarabo v. The State (1999) N1891
Joe Puksy Purari v. The State (2001) N2077
Michael Aia v. The State (2001) N2124
Paul Guant v. The State (2009) N3576
Sent Ninji v. the State (2009) N3581

Counsel:

Mr. Nelson T. Nagle, for the Applicant
Mr. Joe Waine, for the Respondent

RULING ON APPLICATION FOR BAIL

15 March, 2010

1. DAVID, J: INTRODUCTION: This is an application for bail made pursuant to s. 42 (6) of the Constitution and s.6 of the Bail Act seeking an order that the Applicant, Phil Undaba be released on bail whilst awaiting his trial or until his case is determined according to law. I gave my brief oral ruling this afternoon refusing the application and undertook to publish my full reasons later. I now publish my full reasons.

2. The Applicant moves this application pursuant to his Bail Application filed on 4 March 2010 and relies on three Affidavits filed in support of the application which I list below and they are:-

1. Affidavit of Phil Undaba sworn on 2 March 2010 and filed on 4 March 2010;

2. Affidavit of Pastor Gideon Mitien sworn on 2 March 2010 and filed on 4 March 2010;

3. Affidavit of Osmond Santos sworn on 2 March 2010 and filed on 4 March 2010;

3. The Respondent, The State contests the application. Mr. Waine of counsel for the Respondent sought leave to rely on an Affidavit sworn by the investigating officer just before the hearing that made reference to an alleged confessional statement made by the Applicant and to which was attached a copy of that document. Counsel submitted that the confessional statement confirms the Applicant's involvement in the offences he is alleged to have committed.

4. Mr. Nagle objected to the use of the Affidavit in the hearing on the basis that; firstly, it was only served on him over the bar table before the hearing; and secondly and more importantly, any reliance placed on it in particular the alleged confessional statement made by the Applicant will violate s.42 of the Constitution. This was primarily because he said he had standing instructions from the Applicant to challenge the admissibility of the alleged confessional statement into evidence in any criminal proceeding on the basis that it was involuntarily given. Counsel referred me to The State v. Kwambol Embogol (1977) N91 which he said supported the proposition that a statement involuntarily given cannot be admitted into evidence.

5. Having taken note of the submissions for and against the objection and s.28 of the Evidence Act, I accepted the Applicant's submissions and upheld the objection.

6. My ruling there does not necessarily mean that there is no material placed before the Court for the Respondent to rely on. This is because I will take into account two documents entitled Summary of Facts which are in identical terms (hereinafter referred to collectively as the "Summary of Facts") and annexed to the Applicant's Affidavit supporting the charges laid against the Applicant in my deliberations. That is permitted by s.9 (2) of the Bail Act.

BACKGROUND OF ALLEGATIONS, CHARGES AND FACTS

7. The State alleges that on Tuesday, 22 September 2009 at Mt. Hagen between the hours of 08:30 pm and 12:00 o'clock midnight, the Applicant in the company of nine other persons and armed with a dangerous weapon namely a high powered M16 rifle entered the premises of Mainland Holdings (ABCO Yard) along the Dobel Road and attempted to steal with actual violence cigarettes valued at about K100,00.00 the property of Pusamo Trading. A security guard namely, Jeffery Sine who was stationed in the yard at the material time was shot dead during the course of the attempted armed robbery.

8. The Applicant is charged with two counts arising from that incident, one for wilful murder pursuant to s.299 of the Criminal Code and the other for attempted armed robbery pursuant to s. 387 (1) of the Code. The charges are preferred in two informations laid by Senior Constable Benson Gambakoli on 16 February 2010 and as I have stated earlier, they are supported by the Summary of Facts. Those documents are annexed to the Applicant's Affidavit as annexures "A" to "F".

9. The Applicant denies the charges and states that he will vigorously defend his innocence. He states that at this stage, the charges amount to mere allegations until proven before an impartial court of law. He also states that his arrest and the laying of the charges and his subsequent detention in custody was the doing of at least four other suspects who were also arrested in connection with the same incident, but later released from custody upon the withdrawal of informations laid against each of them. They were now co-operating with the police and supplying them information which was not true and adverse to his defence.

10. The Applicant is an adult male from Koge village in the Tufi District of Oro Province. He is married and has seven children. He is of the Baptist faith and has been a member of the Narrow Way Baptist Church situated at the junction of the Tech Road, Mt. Hagen for the last nineteen years.

11. The Applicant is a long serving member of the Royal Papua New Guinea Constabulary and has been attached to the Mt. Hagen Police Station for the last nineteen years. Prior to his arrest and detention in police custody on 11 February 2010 he states that; he had served the constabulary with loyalty and transparency; he held the rank of First Constable; and he had neither a prior conviction nor a run in with the law.

12. The Applicant is now remanded in custody at the Baisu Correctional Institution (Baisu) outside the city of Mt. Hagen, Western Highlands Province.

13. The Applicant states that he can afford cash bail of K800.00.

14. The Applicant has nominated Pastor Gideon Mitien and Osmond Santos to be his guarantors. Pastor Mitien who is from Banara village, Bogia District in the Madang Province is into his third year as the pastor of the Narrow Way Baptist Church. He has known the Applicant for over ten years. Osmond Santos who is originally from the Philippines and a member of the Catholic faith has lived and worked in Mt. Hagen for the last ten years and is currently employed by Dae Won Trading as its Operations General Manager. He has held that position for the last five years. He has known the Applicant for over five years. The proposed guarantors have undertaken to ensure that the Applicant will comply with the conditions of his bail and also pay K500.00 each to the State in support of their undertakings if the Court were minded to admit him to bail.

ISSUES

15. The main issue for determination is whether the Applicant has shown cause why his continued detention in custody is unjustified. In deciding that issue, it is necessary to determine as a peripheral issue whether the Applicant has established any exceptional circumstance for the Court to exercise its discretion in favour of granting his application.

APPLICANT'S SUBMISSIONS

16. Mr. Nagle submitted that whilst the Applicant is charged with two very serious offences that invite the application of s.9 (1)(c) of the Bail Act to refuse bail, he nevertheless relied on the oft-quoted case of Re Fred Keating v. The State [1983] PNGLR 133 in requesting the Court to exercise its wide discretion in favour of granting the application because his client's continued detention in custody is unjustified.

17. The reasons he gave as matters constituting exceptional circumstances to justify the Applicant's immediate release in the present case are these. Firstly, the Applicant's prolonged detention will have an adverse effect on the preparation of his defence i.e. he will be denied the opportunity to liaise personally with his witnesses who may be more accessible to him than to his lawyers when at least four suspects charged and detained over the same incident, but subsequently released from custody have become police informants and feeding them with untruths. Secondly, the Applicant's prolonged detention will have an adverse effect on his health as is confirmed by the interim medical report provided by Dr. Joel Martin of the Mt. Hagen General Hospital dated 17 February 2010.

18. As to the suitability of the proposed guarantors, Mr. Nagle submitted that they were persons of standing and good repute in the community and were capable of honouring their undertakings if the Applicant were admitted to bail. It is a fallacy to say that guarantors should be from the same province or country counsel further submitted.

RESPONDENT'S SUBMISSIONS

19. Mr. Waine of counsel for the Respondent basically submitted that unless the Applicant shows why his continued detention in custody is not justified, the Court must refuse the application. To do that, the Applicant must establish exceptional circumstances operating in his favour counsel said. Counsel further submitted that considerations operating against granting bail in the present case were; firstly, the alleged acts giving rise to the serious charges are caught by s. 9 (1)(c) of the Bail Act and the firearm used in the alleged incident has not been recovered and was still in the hands of the Applicant's accomplices; secondly, it was likely that the Applicant will not appear at his trial if granted bail invoking s.9 (1)(a) of the Bail Act; and thirdly, it was likely that the Applicant will interfere with potential witnesses for the Respondent if granted bail invoking s.9 (1)(f) of the Bail Act.

20. As to the effect that the Applicant's continued detention in remand in custody at Baisu will have on the preparation of his defence, counsel submitted that the reasons advanced by the Applicant do not substantiate the ground as an exceptional circumstance.

21. Counsel further submitted that the application has been made too early following the Applicant's arrest and detention in custody on 11 February 2010.

22. As to the presence of any medical condition that the Applicant might have to warrant his immediate release from custody, counsel submitted that on face value, the interim medical report relied on by the Applicant does not show that his condition is life threatening. The interim medical report only confirms a diagnosis of mild typhoid fever for which appropriate treatment was administered counsel said. An exceptional circumstance has not been established counsel said.

23. Counsel therefore submitted that the Applicant having failed to establish any exceptional circumstance to be admitted to bail, his application must be refused.

24. As to the suitability of the proposed guarantors, Mr. Waine submitted that both of them are not suitable. The reason he advanced was that both guarantors' continued residency in Mt. Hagen was not guaranteed as both of them were not from the Western Highlands Province. Pastor Mitien who is from Madang Province and Mr. Santos who is from the Philippines could leave the province at any time either on job transfers or termination from employment he contended.

THE LAW

25. There are two categories of bail applicants. The first category applies to those who are charged with wilful murder or treason. The second category applies to those charged with other offences.

26. The right to bail is guaranteed by s.42 (6) of the Constitution for applicants falling under the second category. That provision reads:-

"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 interest of justice otherwise require."

27. There is therefore a heavy presumption in favour of bail being granted to an applicant at all times unless the interests of justice otherwise require: see Paul Louis Kysely v. The State [1980] PNGLR 36. In those cases, the onus is on those who oppose bail to show why bail should not be granted: see Re Herman Kagl Diawo [1980] PNGLR 148.

28. For applicants falling under the first category, bail is not available as of right.

29. According to s. 4 (1) of the Bail Act, only the Supreme and National Courts can entertain applications for bail involving treason, wilful murder and other serious offences listed there.

30. Section 9 of the Bail Act sets out the considerations for a bail authority to consider when deciding whether to grant or refuse bail. That provision reads:-

"(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; or

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

(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; or

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

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

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

(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; or

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

(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; or

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

(2) In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it...."

31. In Re Fred Keating, the Supreme Court said:

"When considering the grant or refusal of bail in cases other than wilful murder or treason, the courts and other bail authorities are to be guided generally by s.9. But whilst the Bail Act is a complete code dealing with the grant or refusal of bail, by s.3, in matters other than wilful murder or treason, the bail authority may still have to consider the question of the interest of justice. This may involve considerations other than the criteria for refusing bail as established in this section."

32. It was also said in Re Fred Keating that in wilful murder cases, only those considerations apply and no others, i.e. without reference to the interests of justice. There, the Supreme Court said:-

"In cases of wilful murder, only those considerations set out in s.9 (1) apply and no others because the 'interests of justice' in s.3 of this Act and because s.42 (6) of the Constitution does not apply to wilful murder and treason cases."

33. It was also said in Re Fred Keating that the existence of any one or more of the considerations under s.9 does not necessarily mean that bail must automatically or readily be refused. This is because a bail authority does have the discretion and power to decide whether to grant or refuse bail.

34. In cases of wilful murder, the onus is on the applicant to show cause why his detention in custody is not justified: see Re Fred Keating and Re Kou Dua [1984] PNGLR 22. Exceptional circumstances must be shown before bail can be granted: Bernard Juale v. the State (1999) N1887.

35. In Bernard Juale, the applicant was a long serving policeman who held the rank of Sergeant. He was charged with one count of wilfully murdering his wife at a service station in Port Moresby one evening in late 1996. It was alleged that the applicant conspired with other persons and devised a plan for one of those persons to shoot and kill his wife with a gun. In accordance with that plan, the accused set his wife up on the date, time and place agreed upon by driving her to the service station as pre-arranged where he stopped, left his wife and child sitting in the car and he walked into the store. While the applicant was in the store, his accomplices arrived in another vehicle, pulled up beside his stationary vehicle and his wife was shot on the head at point blank and they escaped. Two other suspects, one with whom the applicant conspired to kill his wife and the other who actually pulled the trigger of the gun were still at large when the application was made.

36. The applicant there raised a number of grounds to seek his release from custody on bail and they included, inter alia,; that his safety was more guaranteed by his wantoks and family members at home than in custody amongst prisoners because of the mere fact that he was a policeman; humanitarian grounds, in that since the death of his wife, he played the dual role of a mother and father to his young children and therefore it was in their interest that they should not be separated from their father; and freedom to be at large to prepare his defence given that he was innocent until proven guilty. His Honour, Justice Kirriwom refused the application having not been convinced that the applicant's continued detention in custody was not justified.

37. As to the question of "exceptional circumstances", His Honour stated:-

"I think there will be, as is always the case, exceptional circumstances, such a those alluded to by Andrew J in the same case (Re Fred Keating) that would warrant bail, even in wilful murder cases. The question is always one of degree. Each case must be decided on its own peculiar circumstances. The Constitution under s. 42 (6) does not deny bail to a person charged with wilful murder. It avails bail to all persons at all times except those charged with wilful murder and treason. The fact that it excepts wilful murder and treason does not necessarily connote a negative proposition of law. It simply means that bail is not readily and automatically available but that the person charged must seek redress for bail through other avenues. That avenue is thus provided under ss. 4 and 6 of the Bail Act. It is however unfortunate in my view that section 9 of the Bail Act is restricted only to those considerations exhaustively defined therein. "

38. As to what matters constitute "exceptional circumstances", they have not been clearly spelt out by both the Supreme and the National Courts as yet. Some examples however have been suggested in two (2) judgments of the National Court namely in Malaki Kongo & Joe Akusi v. The State (1996) N1544 and Michael Aia v. The State (2001) N2124. Obviously, the list is not exhaustive as each case must be considered in the light of its own peculiar circumstances: Bernard Juale.

39. In Malaki Kongo & Joe Akusi, His Honour, Acting Justice Batari (as he then was) considered a joint application for bail where the applicants were each charged with one count of wilful murder. There, His Honour said:-

"Although the provision of s. 9 (1)(c) has been established, there is a discretion in the Court to grant bail. The onus is on the applicants to show why their detention in custody is not justified (Re: Fred Keating's Case). By the time the accusers are brought to trial in April, 1997 they would have spent over 12 months in custody if they are not released on bail. This is a relevant consideration in their favour. It is however not the sole determining factor. One may bear in mind also that, despite the long wait, case trials in Waigani could now be expeditiously dealt with through case listings so that the accused are at least assured of being brought to trial on fixed dates. There is no uncertainty of their being ever brought to trial.

Besides, there is no evidence or suggestion that prolonged detention is adverse to their health, for instance. Similarly a person detained on a wilful murder charge, in my view should show cause that his prolonged detention would either prejudice his defence or deny him the opportunity to adequately prepare his defence. He ought also to show cause that his detention would put his social activities and his family welfare, employment, or business engagements in jeopardy. These are some of the matters that in my view are relevant in the applicant's favour and ought to have been covered in their applications. Those family difficulties they each spoke of through their lawyer in my view are not exceptional to them. I also do not see the urgency of such consideration when they have been in custody for some seven months now".

40. Her Honour, Justice Davani followed the decision of Malaki Kongo & Joe Akusi in Michael Aia & Michael Maneba. There, Her Honour considered an application for bail where the applicants were also charged with one count each of wilful murder. Her Honour said:-

"What are these exceptional circumstances? The Applicants have not shown any. The affidavits filed by the Applicants are very brief. They do not depose to matters pertaining to exceptional circumstances, some of which may be that, prolonged detention is adverse to their defence or that their social activities, family welfare, employment or business would be in jeopardy. These are matters that are relevant to the applicants and ought to have been covered but were not."

41. From those two cases emerge the following factors that may amount to exceptional circumstances and they are:-

1. the prolonged detention in custody will have an adverse effect on the defence i.e. he or she will be denied the opportunity to properly prepare his case;

2. the prolonged detention in custody will have an adverse effect on the social activities and welfare of the applicant and his family;

3. the prolonged detention in custody will have an adverse effect on the employment and business welfare of the applicant.

42. Paul Guant v. The State (2009) N3576 and Sent Ninji v The State (2009) N3581 are further examples. There, His Honour, Justice Makail dealt with applications for bail by applicants charged with wilful murder. In both applications, the applicants argued that living conditions at Baisu were not conducive for them to live in due to over-crowdedness thus posing a health risk to them and others remanded in custody as well. The risk of contracting diseases like typhoid, tuberculosis, scabies and diarrhoea was therefore very high they said. His Honour held that to establish that alleged state of affairs as an exceptional circumstance, over-crowdedness per se of that correctional institution was not sufficient. Evidence of serious health risk associated with over-crowdedness was required His Honour said.

43. Being a policeman per se does not make one an exceptional case: Bernard Juale and Triga Kakarabo v. The State (1999) N1891.

44. The presumption of innocence guaranteed by the Constitution cannot be a basis for the Court to grant bail as that is an issue for trial: Triga Kakarabo and Joe Puksy Purari v. The State (2001) N2077.

45. A guarantor plays a significant role in ensuring that a person granted bail appears at his or her trial and also complies with the conditions of his or her bail. He is required to make an undertaking to that effect: s.19 (1) of the Bail Act. According to s.19 (2) of the Bail Act, a guarantor will only be required if the bail authority considers that the person granted bail will not appear at his or her trial or will not comply with the conditions of his or her bail.

46. As to whether the proposed guarantors are suitable or not, one only has to look at s.19 of the Bail Act in particular sub-sections (4), (5), (6) and (7) to discern between who is suitable and who is not. The general qualification in sub-section (4) is that for a bail authority, etc to refuse approval of a person to act as a guarantor, it must be 'satisfied on reasonable grounds that the proposed guarantor will not honour the undertaking required of him under Subsection 1.'

47. According to sub-section 6, the bail authority must consider the financial means of a proposed guarantor. It is couched in mandatory terms. It is an important factor that a bail authority must take into account when deciding the suitability of a proposed guarantor. A proposed guarantor who only makes an undertaking to pay or pledge a certain amount of money as surety without disclosing his financial means should not be considered at all.

48. Thus, in considering the suitability of a proposed guarantor, regard ought to be had, amongst other relevant matters that may be peculiar to a particular case, to the following:-

1. the guarantor's financial means: Malaki Kongo & Joe Akusi, Michael Aia & Michael Manebai and Joe Puksy Purari;
   
2. the guarantor's proximity, whether by kinship or place of residence, to the applicant: see Charlie Posanau & David Koyama v. The State, SC APP. Nos. 2 & 3 of 2009, Unreported and Unnumbered Judgment delivered on 1 May 2009 (Lenalia, David & Makail JJ), Malaki Kongo & Joe Akusi, Michael Aia & Michael Maneba, Paul Guant, and Sent Ninji;
   
3. the guarantor's standing in the community, including his character and antecedents: Malaki Kongo & Joe Akus, Michael Aia & Michael Maneba and Joe Puksy Purari.
   

49. In addition to paragraph 48.2 above, the involvement of a non-relative as a guarantor either by blood or marriage is to avoid apprehension of bias and conflict of interest; and the risk of an applicant absconding bail would be much higher compared to a guarantor who was a neutral person: see Charlie Posanau & David Koyama v. The State, SC APP. Nos. 2 & 3 of 2009, Unreported and Unnumbered Judgment delivered on 1 May 2009 (Lenalia, David & Makail JJ), Malaki Kongo & Joe Akusi, Michael Aia & Michael Maneba, Paul Guant and Sent Ninji.

THE PRESENT CASE

Type of bail applicant

50. The Applicant is charged with two serious offences. As I have alluded to earlier the one for wilful murder falls under the first category of bail applicants where bail is not available as of right while the other for attempted armed robbery falls under the second category where the right to bail is guaranteed by the Constitution. Since, the present case is a mixed bag, I will apply the principles that are applicable to the first category of bail applicants.

Preparation of defence

51. Will the prolonged detention of the Accused have an adverse effect on the Applicant preparing his defence? The Applicant's main reasons to support his argument that he will be adversely affected and prejudiced in the preparation of his defence are deposed to at paragraphs 7 to 10 of his Affidavit. For the benefit of the parties, it will be useful to recite the relevant paragraphs and they are:-

"7. I seek bail before this Honourable Court as I have personal knowledge that I was arrested and charged upon the information provided by at least four suspects who were also arrested, charged and detained in relation to the same incident.

8. Those four suspects were however later released upon the withdrawal of their information by police and these same suspects have now co-operated with police and have given untrue information to the police which resulted in my subsequent arrest, charge and detention.

9. I therefore seek bail so that I can be able to more around and collect more information from my intelligence sources and in that way, prepare my defence with credible evidence to strengthen my defence. My prolong detention will inevitably prejudice my defence.

10. I have served the police force for nineteen (19) years with transparency and loyalty. In those nineteen (19) years of service, I have intercepted many planned armed robbery in the Western Highlands Province through my intelligence network and sources. Hence I ask this Honorable Court to grant me bail so that I may get my defence prepared and supported with credible evidence which I will obtain from my intelligence sources." (sic)

52. The Applicant has acquired the services of Paul Paraka Lawyers who have an office in Mt. Hagen to help him with this application. It is common knowledge or so it seems that they provide legal services on a pro bono basis, i.e. free legal advice and he is therefore quite fortunate in that respect to be accorded that service. If the Applicant continues to be remanded in custody at Baisu, surely he will not be denied access to legal services whether they are provided by his current lawyers or the Public Solicitor if he is entitled to legal aid or any other lawyer of his choice in future for that matter. For his lawyers to best represent his interests, the Applicant should give them his full instructions. This includes giving the names and whereabouts of his witnesses so that his lawyers can communicate with them, interview them and obtain their statements in preparation of his defence.

53. There is no evidence before me to suggest that any member of the Royal Papua New Guinea Constabulary or a correctional officer has tried to violate or will in future violate the Applicant's constitutional right to have access to a lawyer of his own choice at the place where he is currently detained in custody in order to prepare his defence. Section 75 of the Correctional Service Act actually permits visits by lawyers to detainees held in a correctional institution at any time provided the appropriate protocols are met. I do not see any reason why the Applicant cannot give his further and full instructions to his lawyers to prepare his defence while he is in custody.

54. There is no merit in this argument. The prolonged detention of the Accused will not have an adverse effect on the Applicant preparing his defence.

Health of Applicant

55. Will the prolonged detention of the Accused have an adverse effect on the Applicant's health? The Applicant's reasons for supporting his argument that his health will be adversely affected are deposed to at paragraphs 11 to 12 of his Affidavit. For the benefit of the parties, it will also be useful to recite the relevant paragraphs and they are:-

"11. I further seek bail on medical grounds. I have been diagnosed with Typhoid and have been on medication prior to my arrest and detention. I have sought medical treatment and have been examined by Dr. Joel Martin whose examination result are contained in the medical report attached to my affidavit.

Annexed hereto and marked with the letter "H" is the medical report.

12. However due to living conditions here in the cell blocks, and lack of proper diet, my illness have not improved despite the medications I have been taking as per the doctor's directions. I therefore humbly ask this Honorable Court to grant me bail so that I may attend to the hospital for further treatment and advise." (sic)

56. The interim medical report of Dr. Joel Martin which actually is annexure "G" to the Applicant's Affidavit confirms that the Applicant was taken to the Emergency Department of the Mt. Hagen General Hospital complaining of having a history (two days) of fever, headache and feeling light headed. However, no date is given as to when the Applicant was actually brought there as the date that appears at the top right hand corner of the letter, "17th February 2010", is to my mind the date when the interim medical report was written. That aside, the interim medical report confirms that; a diagnosis of typhoid was made and the Applicant was treated with chloramphenical and panadol and sent home with a sick leave pass to rest from duties for one week; and that the Applicant's condition was to be reviewed after two weeks. To my mind, if the condition of the Applicant were life threatening at the time, surely the medical personnel who attended to him at the hospital would not have allowed him to go home. He would have been kept there for further observation until his condition improved.

57. Blaming the conditions of the cell blocks and lack of proper diet for lack of improvement in his health despite ongoing medication per se is insufficient: Paul Guant and Sent Ninji. There is no material evidence before the Court as to the state of the cell blocks at Baisu such as a report from the health authorities or the kind of food including their nutritional value that is administered to the Applicant and other detainees for that matter or a further and updated medical report concerning his health immediately prior to the making of this application to substantiate that assertion.

58. Section 2 of the Correctional Service Act defines the term "detainee" to mean 'a person who, by virtue of Section 116, is deemed to be in the custody of the Commissioner'. Section 2 also defines the term "Commissioner" as the Commissioner of the Correctional Service appointed under s.8 of the Correctional Service Act. According to s.116 (1) of the Correctional Service Act, a person is deemed to be in the custody of the Commissioner where he or she is committed or delivered to a correctional institution under any of the processes set out in that provision. There is no evidence before me to suggest that the Applicant is detained at Baisu illegally.

59. According to s.141 (1) of the Correctional Service Act, a detainee has a right to reasonable medical care and treatment consistent with community standards and necessary for the preservation of health including, with the approval of the Departmental Head of the Department responsible for health matters, but at the expense of the detainee, a private medical practitioner. For that reason, each correctional institution is required to be served by a medical officer with the prescribed qualifications: see s141 (2) of the Correctional Service Act and ss. 107, 108, 112, 113 and 114 of the Correctional Service Regulation. An infirmary for sick detainees is also required to be set up in a suitable room within a correctional institution: see s.110 of the Correctional Service Regulation.

60. There is no material evidence before me from the Applicant to suggest that he has been denied access to medical services at Baisu if they are actually in place there. However, if those services are not available there now, there is, as has been conceded by Mr. Nagle in his closing submissions in reply to the Respondent's submissions, no material evidence before the Court to suggest that his client's request to be brought to Mt. Hagen General Hospital for further medical attention has been denied.

61. There is no merit in this argument as well. The prolonged detention of the Accused will not have an adverse effect on the Applicant's health.

Guarantors

62. This is a case where I think guarantors are required consonant with s.19 (2) of the Bail Act.

63. I reject the Respondent's contention that because the proposed guarantors' continued residency in Mt. Hagen was not guaranteed as they were not from the Western Highlands Province, they were not suitable. The test of proximity should be applied.

64. The Affidavits of the proposed guarantors do not disclose the financial means each of them have to be in a position to ensure that the Applicant complies with conditions that might be imposed for his bail. However, they depose that they are able to put up K500.00 each as surety. Does that suffice for the purpose of s.19 (6) of the Bail Act?. I answer that in the negative. I think it is high time for that provision to be enforced strictly. It is not my suggestion. The law demands it. The proposed guarantors must disclose their financial means to warrant consideration.

65. The proposed guarantors are not related to the Applicant in any way either by blood or marriage. They are independent and neutral. They both live and work in Mt. Hagen. If the Applicant is admitted to bail and resides in Mt. Hagen, they will be in close proximity to him and will therefore be in a position to enforce compliance with conditions that might be imposed for his bail.

66. The proposed guarantors appear to me to be persons of some standing and good repute in the community; Pastor Mitien in his capacity as pastor of the Narrow Way Baptist Church, Mt. Hagen and Osmond Santos as Operations General Manger for Dae Won Trading, Mt. Hagen.

CONCLUSION

67. None of the grounds proposed by the Applicant as an exceptional circumstance has been established. The upshot of that is that the Applicant has shown no cause why his detention in custody is not justified.

68. Furthermore, I agree with Mr. Waine's submission that the application has been made too early. The police should be allowed to complete their investigations into the serious allegations made against the Applicant without any obstruction because there is in my view a real likelihood of the Applicant interfering with the Respondent's witnesses if granted bail.

69. Accordingly, I refuse the application. I therefore order that the Applicant shall continue to be remanded in custody at Baisu awaiting his trial or otherwise to be dealt with according to law.

70. This is not the end of the road for the Applicant in so far as making an application for bail is concerned. He is at liberty to re-apply under s.13 of the Bail Act.

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