N4325

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR No 142 of 2011

THE STATE

V

TEGA MONDO
Defendant

Kundiawa: Kangwia, AJ.
2011: 31st May 1st & June
 
CRIMINAL LAW – Practice and procedure – Bail Application after committed to trial for wilful murder- Applicant to show why detention not justified under S.9 (c) (i)Bail Act- Contagious medical condition – Exceptional circumstance shown – bail granted.

Cases cited: 

Re Fred Keating v the State [1983] PNGLR 133
Kua Dua v Police [1984] PNGLR 22
Malaki Kougo and Joe Akusi v the State, N1544, 23 September 1996

Counsel: 

M. Mumure, for Applicant
D. Mark, for the Respondent

1 June, 2011

1. KANGWIA AJ: Applicant Tega Mondo applied for bail under S. 42 (6) of the Constitution and S. 6 and S. 4 of the Bail Act after the District Court committed him to stand trial on a charge of wilful murder.

2. To support his application he advanced the following reasons to show why he should be allowed bail.

1.	That he was possessed of a contagious TB condition such that it required regular medication and prompt monitoring to recover. It also posed a health risk for other inmates if he were in continued detention.

2.	That one of the co – accused confessed to committing the crime and that enabled his acquittal a possibility.

3.	That the deceased came from the same family and compensation was paid to reconcile among them.

3. The Supreme Court in Fred Keating v the State [1983] PNGLR 133 held that in a bail application of a person charged with wilful murder, if any one of the criteria in S. 9 of the Bail Act is shown to exist, the onus is on the applicant to show why bail should be granted.

4. Following the Fred Keating case (supra), Kidu CJ in Kua Dua v Police [1984] PNGLR 22 expressed the view that the use of the word "shall" in S. 9 (1) of the Bail Act shows that it can be seen that the bail authority must refuse bail if one or more of the conditions are proved unless the defendant shows cause why his detention in custody is not justified. Such an exercise is always discretionary. 

5. In the present case the State did not object to the grant of bail to the accused applicant. The state concurred with the applicant on the first reason that since he was possessed of a contagious disease which posed a high risk to other inmates that created an exceptional circumstance warranting the grant of bail.

Despite the concurrence of the State I still have to satisfy myself that the applicant has met the requirements for the grant of bail before I exercise my discretion to grant or refuse bail.

 6. At the outset the applicant is not entitled to bail as of right under S.42 (6) of the Constitution when he is under a charge for wilful murder. S. 42 (6) provides as follows;

S. 42 Liberty of the person

 (6) A person arrested or detained for an offence (other than treason or wilful murder as defined by an act of parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interest of justice requires.
 
7. However, under S. 4 of the Bail Act a person charged for wilful murder is accorded the right to apply for bail which this applicant did. The relevant parts of S. 4 are these;

S. 4 Only National or Supreme Court may grant bail in certain cases.

(1) A person 

(a) charged with wilful murder, murder or an offence punishable by death; or

(b)...

shall not be granted bail except by the National Court or the Supreme Court

8. The grant or refusal to grant bail under S. 4 depends on whether the considerations specified under S. 9 of the Bail Act are adequately negated. 
The question that arises then is whether any of the criteria in S.9 of the Bail Act exist which if it does, would shift the onus on the applicant to show cause why his detention in custody is not justified. The relevant parts of Section 9 considerations under which the court could refuse bail are as follows;

S. 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 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)...

9. In the present case the applicant is in custody for an offence which consists of a very serious assault which falls under the category of cases referred to under S. 9 (c) (i) and (ii). The deceased was alleged to have given the direction to kill the deceased. Following the directions the co-accused and others still at large attacked the deceased with bush knives and pocketknives. 

10. In light of the principle in the Fred Keating case (supra) it is incumbent upon the applicant to show why his detention in custody is not justified.

11. His first reason is that he is possessed of a contagious medical condition. He has the support of a medical report from Kundiawa General Hospital which confirmed that the applicant had a condition termed as POTTS disease which is a TB of the backbone. The report does not indicate what risk the applicant poses to others around him. There is also a supporting document from the police who witnessed the applicant fainting in the police cells after complications were experienced by him. The District Administrator submitted a status report in which he was approached by the relatives to raise concern for his personal health. I can safely assume from the reports that the medical condition referred to posses a risk to the accused himself and not others nearby. 

12. The treatment recommended requires constant treatment with prompt monitoring, adequate supervision and treatment compliance to contain the disease. If he is not accorded adequate medical treatment the gravity of the risk to his personal health would be very high.

13. The medical services required by the applicant in my view are not available at a correctional institution. The correctional service would be burdened with accommodating the medical requirements of this inmate. Whether they would accommodate his needs with the financial constraints the CIS seems to face is another matter of concern against the medical condition that the applicant is possessed with. The medical condition coupled with the medical recommendations for recovery render it an exceptional circumstance as to why the applicant's detention in custody is not justified.

14. It is only for the above reason that I will exercise my discretion to grant him bail with conditions despite the offence falling into the category of cases that would normally attract a refusal of bail.

15. It would be remiss of me not to consider the other reasons relied on by the applicant and so I express my views in passing as follows;

16. The applicant's second reason stated that one of his co-accused confessed to committing the offence and that should be a good reason for him to be released on bail. I view this proposition to be misconceived. This is not a trial on the charge for which he was committed. No determination of innocence can emerge from a bail application on a matter pending trial proper in the National Court. The purported confession does not absolve him of the charge he was committed to stand trial for. It does not eliminate his obligation to defend himself to secure a proper acquittal according to law i.e. if the State does not invoke S.7 and S.8 of the Criminal Code as principal offender or for aiding and abetting.

17. His charge falls within the category of cases under S. 9 (c) (i) and (ii) of the Bail Act which requires him to show why his detention is not justified. He has not satisfied to the court why his detention is not justified with the reason that a co-accused confessed.
I would have refused bail on the applicant's second reason. 

18. The third reason advanced was that compensation was paid for the death and reconciliation with the relatives had occurred.

19. Payment of compensation and reconciliation with relatives of the victim in my view cannot support his application for bail when the considerations under S.9 (c) (i) of the Bail Act exist upon which a refusal is most likely. He has failed to discharge the onus placed upon him by S. 9 of the Bail Act when he proposed that he should be released on bail because he paid compensation and reconciled with relatives. He was charged with wilful murder, an offence that carries a maximum sentence of death and one must show an exceptional circumstance to secure temporary release on bail. 

20. Payment of compensation may mitigate on penalty if an accused is convicted of an offence. It does not and should not operate as a reason for grant of bail, as to allow it would be akin to purchasing temporary freedom.

I would have refused him bail under this reason also.

21. Having decided to grant him bail on the reason of his medical condition, I now turn to consider the proposed guarantors. According to the affidavit of Kimin Wine he holds himself out to be a village elder and a leader of his clan who comes from the same area as the applicant. He has no other standing apart from knowing the applicant very well and for a very long time. For want of a better person, I would approve his nominee as guarantor. 
 
22. As to the other proposed nominee namely Kondugl Goiye I have hesitation in approving him as a suitable guarantor. Firstly he is 32 years old and comes from the same tribe as the applicant. He has no other attribute that the court can rely on as a preferred guarantor. Secondly, it would set a bad precedent to allow young villagers with no fixed addresses and limited standing or no standing at all in the community to be trusted by the courts just because they say they know an accused person very well. It is also inappropriate to allow relatives to be guarantors for the mere reason that monitoring of conditions may be compromised. 

23. I adopt part of what Batari AJ (as he then was) stated in Malaki Kougo and Joe Akusi v State, N1544, 23 September 1996 in relation to relatives proposed as guarantors;

"...a guarantor to a bail application should be someone with some standing and with means, preferably from outside the family. In wilful murder cases there should be at least adequate guarantors in terms of status and means..."
 
24. Guarantors are bestowed with responsibility for the lifetime of a pending case. They must be persons who are tied into society in one way or another so that when it comes time for them to account to the court they are able to meet the demands satisfactorily. 

25. On the basis of my comments on the refusal of the second guarantor the applicant will now propose another guarantor suitable for the Court's approval.

26. The respondent did not raise any objection to the terms proposed by the applicant. Having considered the proposals offered, I accept them as appropriate in the circumstances as part of the bail conditions.

_____________________________________________
Public Solicitor: For the Applicant
Public Prosecutor: For the Respondent