N4498

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 241 OF 2011

BAIL APPLICATION

KUA MONGULE KONIA

V

THE STATE

Kundiawa: Kangwia, AJ.
2011: 15th August

CRIMINAL LAW - Practice and procedures - Application for bail pending Committal – Onus on applicant to show why Detention was not Justified – Exceptional circumstance not shown- Bail refused

Cases cited:

Bernard Julie v The State (1999) PNGLR 501
Fred Keating v The State [1983] PNGLR 133
Michael Aia v The State (2001) N2124
Joe Peter v The State 01.08.11
Nime Michael v The State 01.08.11

Counsel:

 J. Nime, for the Applicant
V.Mauta, for the Respondent

15th August, 2011

1. KANGWIA AJ: The applicant applied for Bail pending Committal proceedings in the District Court on a charge of Wilful Murder pursuant to section 4 and 6 of the Bail Act and Section 42 (6) of the Constitution.

2. The following grounds were relied on;

1. The condition in which the applicant has been detained. 

2. The health condition of the applicant.

3. Health risk to the applicant if he continuos to be detained. 

4. The conditions of the cell block.

3. Supporting affidavits filed were as follows;

1. Goal Commander of CIS Barawagi

2. Medical reports annexed to the applicants affidavit referring to the health conditions of the cell block at CIS. 

 3. Two guarantors

 4. The applicant's own affidavit.

4. Ms.Mauta for the State objected to the bail on the grounds that Bail is not available to persons charged with wilful murder. Section 42 (6) of the Court provides;

(6) A person 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 requires.

5. Section 3 of the Bail Act reaffirms what section 42 (6) of the Constitution directs. Despite the strictures of section 42 (6) Constitution and section 3 of the Bail Act a person charged with Wilful Murder could be granted bail under section 4 of the Bail Act in the exercise of the Courts Discretion:

6. Discretion may be invoked upon the applicant satisfying the considerations under section 9 of the Bail Act. If any of the Section 9 considerations are shown to exist or are present it is incumbent on the applicant to show why bail should be granted.

7. In Re Fred Keating the Supreme Court held that: 

"In cases of wilful Murder only those considerations set out in section 9 (i) of the Bail Act apply and no others" 

8. The other way the Courts discretion may be exercised is under the "exceptional circumstance" considerations. In Bernard Juale v The State (1999) PNGLR 501 Kiriwon J intimated that; " I think there will be, as is always the case exceptional circumstance, such that as those allowed by Andrew J in the Fred Keating v the State case that would warrant bail, even in wilful Murder cases".

9. What would constitute exceptional circumstance was suggested by Davani J in Michael Aia v The State (2001) N2124 as; 

"Prolonged detention as being adverse to their defence, or that their social activities, family, welfare, employment or business would be in jeopardy, must be shown to exist. The applicant must demonstrate that an exceptional circumstance exist to warrant bail".

10. In Joe Peter v The State (unreported Judgment) dated 1st July and again in Nime Michael v The State (unreported Judgment) dated 1st July 2011, I departed from the suggestions by Davani J in Michael Aia v The State (supra) and stated:

"With respect, I do not think those suggested by her Honour would amount to exceptional circumstance to warrant bail, in the face of a wilful Murder charge coupled with the intent and spirit of section 42 (6) constitution and the Bail Act requirements. I would rather suggest a high health risk to an applicant or an applicant possessed of a contagious disease as an exceptional circumstance warranting bail for a person charged with wilful murder".

11. My views were based on the premise that exceptional circumstances are not a requirement for grant of bail under the prevailing legislations despite the presumption of innocence operating in favour of an accused person and the discretion a Court can exercise in the grant or refusal of bail.

12. Despite the presence of the presumption of innocence the purpose a grant of bail would serve for an accused person to obtain temporary freedom also demands consideration as a person cannot readily be charged for wilful murder which carries a prescribed maximum sentence of death.

13. In the present case Ms Mauta for the State objected to the grant of bail citing various short falls in the applications. They include, absence of relevant affidavits to support the various annexures relied on by the applicant and the failure to show why the grant of bail was justified.

14. The applicant relies partly on the affidavit of the Goal Commander. I am unable to comprehend how this detainee was preferred for bail from the other 45 or so detainees who are kept at the Barawagi CIS. The commander has failed to qualify that the applicant had been in remand for longer period as confirmed. Does he mean to say that the other remandees are recent intakes and need not be considered for bail? His statements of hygiene related diseases have no basis. Even if he did have any basis at all it can only be seen as a display of his own failures to accommodate detainees appropriately as he is required by Law to do. He cannot find an easy way out through bail for remandees.

15. In a letter to the Registrar of the National Court dated 28th March 2011 the Goal Commander stated that the holding capacity for his cell block was 50 people. In his affidavit dated 8th July 2011 in support of this bail application he deposed that his remand facility is meant for 30 people only. 

16. These are two factual differences in the Court from the same individual. I am unable to believe this witness as a truthful witness genuinely concerned for the welfare of a selected remandee. 

17. The applicants' purported medical condition in my view does not seem to be contagious or high risk to amount to an exceptional circumstance. 

18. From the information filed for bail I find that he was not an innocent bystander who was maliciously charged. He was charged for a death that he seemingly had a part to play. This further goes to show that section 9 (i) (c) considerations of the Bail Act are present. Despite the presence of the section 9 (i) (c) considerations the applicant has been unable to invoke the court's discretion by showing that an exceptional circumstance exists that would invite the grant of bail.

19. Just because the conditions in a remand centre or police cell are unlike the home setting, should not operate as a basis to obtain temporary freedom. Being locked up in a police cell or a CIS remand facility are options an individual chooses either by design or default in the first place, by allegedly falling out of line with the Law. 

20. Given the above findings, I'm not convinced that the grounds required for the grant of bail for wilful murder has been made out. Bail is refused.

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