N4235

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

MP 54 OF 2011

PAUL LAKORE
Applicant

V

THE STATE
Respondent

Waigani: Kariko J
2011: 25 & 28 March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application – Murder – No evidence of how the deceased was killed – Nature of offence – Whether applicant likely to abscond – Bail allowed

On an application for bail on a charge of murder.

Held:

(1)	If one or more of the considerations under section 9(1) of the Bail Act exist, the court may still grant bail if satisfied that continued detention is not justified: Re Fred Keating [1983] PNGLR 133 considered and applied.

(2)	Section 9(1(c) of the Bail Act concerns a consideration of the nature of the offence, that is the particulars or matters alleged to constitute, make up or form the offence.

(3)	Evidence that an applicant has been on the run or avoiding arrest would be reasonable grounds to conclude that an applicant is not likely to appear at his trial.

(4)	Notwithstanding section 9(1) of the Bail Act, the nature of the offence may warrant the refusal of bail. The State v Beko Job Paul [1986] PNGLR 97 considered and applied.

(5)	To properly consider a bail application, it is necessary to provide evidence of the relevant facts and circumstances of the offence and in particular the acts (or omissions) that constitute the offence.

(6)	None of the considerations under section 9(1) of the Bail Act were established. Bail allowed with conditions.

Cases cited:

Re Fred Keating [1983] PNGLR 133 
The State v Beko Job Paul [1986] PNGLR 97

Counsel:

Mr G Gorua, for the Applicant
Mr A Bray, for the Respondent

28 March, 2011

1.	KARIKO J: The applicant seeks bail during committal proceedings on a charge of murder contrary to section 300 of the Criminal Code. The motion is made pursuant to sections 42(6) of the Constitution and sections 4 and 6 of the Bail Act. 

The facts 

2.	In the Summary of Fact accompanying the Information laid in the District Court the police allege that on 18 May 2007 the applicant and his father-in-law (the deceased) travelled by dinghy to their village in Orokolo, Gulf Province after returning from Port Moresby. While travelling, "the defendant murdered the deceased, Mr Danaiel Avae Malaha and tied him with a nylon rope against the pallet used as seats inside the dinghy". There are no other details describing the alleged killing.

3.	The police further allege that when the applicant and the deceased arrived at the village, the villagers took the deceased and buried him. Police investigated the killing but the applicant was on the run until he was finally arrested on 7 December 2010 in Port Moresby.

The Law

4.	A person charged with a criminal offence is entitled to bail, a right that is guaranteed by section 42(6) of the Constitution. The Bail Act 1977 ("the Act") gives effect to this constitutional provision. Section 6(1) of the Act provides for bail to be applied for at any stage of a proceeding, and section 6(2) of the Act imposes a duty on a court to consider an application for bail, subject to section 4. Under Section 4 of the Act only the National and Supreme Courts may consider bail for certain serious crimes, including murder. Bail shall be considered in accordance with section 9 of the Act which lists circumstances for which bail shall be refused. 

5.	It is settled law that bail shall not be allowed if one or more of the considerations set out under section 9(1) of the Act exists. But even then, the court still has a discretion whether or not to grant bail, and the onus is on the applicant to show why his continued detention in custody is not justified: Re Fred Keating [1983] PNGLR 133. 

Grounds for the application

6.	The applicant raised a number of grounds in support of his application for bail:

•	He is innocent of the charge.

•	He has never had any problems with the law before.

•	He is married with children and runs his business in the village.

•	He denies being on the run since the alleged offence
 
7.	An elder from the Evegima United Church Kilakila which the applicant attends and the applicant's brother-in-law who works as a supervisor for Badili Hardware, are willing to act as guarantors for the applicant and have deposed to affidavits confirming his trouble-free background and his family and business situation.

Objection by the State

8.	The State opposed the release of the applicant on bail arguing that circumstances of sections 9(1)(c) and (f) of the Act are present. Firstly, the State claimed the charge constituted a serious assault. Secondly, it was submitted that as the applicant was at large for well over 3 years before being arrested, he is unlikely to appear at his trial. 

9.	Additionally, the State argued that the seriousness of the offence warrants the denial of bail and relied on the decision in The State v Beko Job Paul [1986] PNGLR 97 to support the argument. 

Section 9(1)(c)

10.	Under section 9(1)(c) of the Act, bail should not be allowed if a bail authority is "satisfied on reasonable grounds ...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;" (My underlining for emphasis).

11.	The language in this section is clear and unambiguous. What is to be considered under this provision is not the offence charged, in this case murder, but the act or acts alleged to constitute the offence. The court therefore considers the particulars or matters that makes up or form the offence charged. The question is not whether the offence is a serious offence but does the offence comprise a serious assault; or a threat of violence to someone; or having a firearm or other offensive weapon or explosive. 

12.	As I noted earlier, the Summary of Facts do not elaborate on or explain the alleged killing. There is no other material before me to help determine what act or acts constitute the offence charged. The affidavits filed by the applicant do not assist in this regard, and the State did not or rather was unable to provide any further information as to how it is alleged the deceased met his fate. 

13.	The mere fact that death occurred does not necessarily mean there was a serious assault or a threat of violence to another person or that a firearm or other offensive weapon or explosive was used. There is a natural tendency to conclude that a killing necessarily involves the use of violence or a weapon, but deaths may be caused by omissions as well. Was the deceased on regular daily medication that was kept by the applicant and who refused or failed to give the deceased the required dosage when due? Did the deceased fall overboard and the applicant refused or failed to save him before he drowned? If for example these were the facts, section 9(1)(c) of the Act may not apply even though the charge is murder. 

14.	As the evidence stands, I am not satisfied that the consideration under section 9(1)(c) of the Act exists.

Section 9(1)(a)

15.	For its objection based on section 9(1)(a) of the Bail Act, the State again merely relied on the Summary of Facts, the relevant part of which states: 

"The matter was then reported to police and an investigation carried out. The defendant has been on the run since committing the offence."

16.	In his affidavit, the applicant categorically denies he ever evaded the police. He said he was surprised by his arrest. He affirmed that at all times he had been in the village living with his wife and children. He is self-employed and operates a motor (which I understand to be an outboard motor repair) business and a trade store. From time to time he would come to Port Moresby on business but return to the village. It was on one of the trips to Port Moresby that he was arrested. The affidavits of the proposed guarantors support these statements of the applicant. 

17.	Evidence that an applicant has been on the run or avoiding arrest would be reasonable grounds to conclude that an applicant is not likely to appear at his trial. On the evidence before me, I am not convinced that the applicant had been at large and evading the police. I am therefore not satisfied on reasonable grounds that section 9(1)(a) of the Bail Act has been established and that the applicant is likely to abscond if granted bail. 

Seriousness of the offence

18.	In The State v Beko Job Paul (supra) which was relied on by the State, Wilson J refused bail on reaching the view that notwithstanding section 9(1) of the Act, the nature of the offence may warrant the refusal of bail. His Honour was dealing with a break, enter and steal case. He did not base his decision on the type of offence charged but considered the nature of the charge – the particulars of the offence charged. His Honour was not concerned so much that the offence was break, enter and steal, but rather the disclosure that it was a police station that was broken into with the aim of stealing firearms. 

19.	The decision in The State v Beko Job Paul (supra) fortifies the view I expressed earlier that to properly consider a bail application, it is necessary to provide evidence of the relevant facts and circumstances concerning the offence and in particular the acts (or omissions) that constitute the offence. This necessary evidence is lacking in the present case.

Decision

20.	The application is granted and bail is allowed subject to conditions.

_________________________________

PANG Legal: Lawyer for the Applicant
Acting Public Prosecutor: Lawyer for the Respondent