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State v Gilmai [2011] PGNC 57; N4324 (14 June 2011)

N4324

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

MP NO. 115 OF 2011

STATE

V

JOE BAL GILMAI
Defendant /Applicant

Kundiawa: Kangwia; AJ
2011: 1 & 14th June

CRIMINAL LAW - Practice and Procedure – Bail Application – Wilful Murder – Discussed Reasons of; – Unfairness in investigations leading to release of complainant/instigator on bail – Family and status - Medical condition with hypertension and known regular patient at Hospital – Diet requirements not available at correctional institution – Whether exceptional circumstances shown – Bail granted.

Cases Cited:

Re Fred Keating v The State [1983] PNGLR133
The State v Wiri Siminzi & Wanis Kanol,MP No 186 of 2010 unnumbered and
Unreported Judgement of 23 June 2010
Paul Pawa v The State (2009) N3580
In the Matter of Bail Applications by 61 Remandees of Boram CIS East Sepik
Province (2006) N3801

Appearance:

K. Sino, for the Applicant
D. Mark, for the State

14th June, 2011

1. KANGWIA AJ: This is an application for bail pending committal proceedings pursuant to S. 42(6) of the Constitution and Sections 4, 6 and 9 of the Bail Act.

2. The applicant stands charged for one count of wilful murder, one count of attempted murder and four counts of arson. Although the applicant did not indicate the offence for which bail was sought it can be inferred that the application for bail was made for the charge of wilful murder. Any consideration for bail on the other offences would naturally be subsumed into the determination of bail on the wilful murder charge.

3. The charges stemmed from the death of an old man named as Ulka Lukas Gunua who was allegedly attacked with his son, Mark Gunua by the applicant and others in retaliation over the shooting of the applicant's son, Junior Bal with a firearm. Ulka Lukas Gunua was allegedly hit with a stick and chopped with an axe on the head and later kicked all over his body while he lay unconscious. He died after succumbing to the injuries sustained from the attack. A tribal fight erupted resulting in destruction to property also.

4. The applicant's son also succumbed to the gunshot injury. The complainant/informant for the present case was charged for wilful murder over this death but he is believed to be free after he was discharged by the Committal Court. The State has indicated that an ex-officio indictment may be filed at the next circuit.

5. The State did not have any strong objection for bail but stressed that those circumstances under S. 9 (c) (i) (ii) (iii) and (f) were present. Although it is trite law that bail is not available as a right for wilful murder under S. 42 (6) of the Constitution, it was submitted that the court still had the discretion to grant bail if the applicant showed that continued detention was not justified.

Despite there being no objection to bail, it is the duty of the court as bail authority to assess the application before it on its merits, to determine whether bail should be granted or refused.

6. The law governing bail under S.42 (6) of the Constitution is that a person charged with any offence apart from treason and wilful murder is entitled to bail at all times. Section 42 (6) states as follows;

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 interests of justice otherwise require.

7. The Bail Act under S. 4 reinforces this primary right where it accords the right to a person charged with wilful murder to apply for grant of bail. I set out the relevant parts of that section.

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

(1) A person –

(a) charged with wilful murder...

(b)...

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

8. That right is subject to considerations under S. 9 of the Bail Act. The Supreme Court in Re Fred Keating v the State [1983] PNGLR 133 held that an application for bail by a person charged with wilful murder is to be determined pursuant to S. 9 of the Bail Act only. It was further held that the grant or refusal of bail pursuant to S. 9 is discretionary in wilful murder cases. Section 4 of the Bail Act also confers discretion on the National and Supreme Courts to grant bail for wilful murder with the use of the word "may" in its heading.

9. In the exercise of their discretion courts have granted bail to persons charged for wilful murder under exceptional circumstances despite strictures of the S.9 considerations.

10. Deteriorating health conditions of applicants and the requirement for constant monitoring and treatment were considered exceptional circumstances why the continued detention was not justified.

11. In The State v Wiri Siminzi & Wanis Kanol: MP No 186 of 2010 (unnumbered and unreported Judgement of 23 June 2010) Makail J expressed his views on how deteriorating ill health conditions could be deemed exceptional circumstances to succeed in an application for bail on a wilful murder charge thus;

"Where an applicant raises deteriorating ill health condition on a charge of wilful murder, is it an exceptional circumstance? In my view the answer is, yes. I for one in the past cases have held that to be the case including cases where an applicant is charged with wilful murder. But there is a qualification and that is an applicant must establish by appropriate evidence his or her serious ill health before the court may grant bail. Evidence of medical report from a reputable medical practitioner either in public health or private practice is relevant and will go a long way to establishing a meritorious and successful application."

12. I agree with His Honour's view entirely. An applicant cannot and should not be allowed to rely on conjecture or trivialities to invoke the courts discretion. It must also be shown that there exists a real risk or a real likelihood of risk to the applicant's health with a continued detention.

13. In Paul Pawa v The State (2009) N3580 and followed by the State v Wiri Siminzi & Wanis Kanol (supra) Makail J granted bail to the accused persons who suffered high blood pressure that required close observation and monitoring by a doctor which were not available in their place of detention.

14. The court has also relied on other relevant considerations to exercise its discretion to grant bail despite the presence of S.9 considerations. In the Matter of Bail Applications of 61 Remandees of Boram CIS ESP (2006) N3801Cannings, J determined that breaches in conditions of detention and the length of time in custody were relevant considerations that worked in favour of the granting of bail. It was held that, "The worse the conditions of detention and the longer the period in custody, the more likely it will be that the interest of justice will require that bail be granted."

15. In the present case the applicant is not qualified to bail as the considerations in S.9 (i), (ii) (iii) and (f) are present. The alleged offence consists of a serious assault and threat of violence to Ulka Lukas Gunua. A stick and an axe were used to injure the deceased on the head and kicked all over his body. Death was a result of those assaults which are very serious. There is a real likelihood of the applicant interfering with state witnesses because all parties either come from the same village, tribe or locality.

16. The applicant has advanced three reasons why his continued detention was not justified. Firstly, it was alleged that there has been unfairness in the investigation process in which the instigator of the problem who is now the complainant for these charges was released on bail after his charge of wilful murder was reduced to murder and finally freed. It was further alleged that the charges laid against him were to avenge the complainant's detention earlier and therefore it was unfair for him to be detained.

17. This reason in my view is misconceived and untenable. This is not a judicial review to determine unfairness in the investigation process. Every case has its own lifespan during which time it must go through the established processes. His adversary's case went through its established process and I find no evidence to the contrary to hold the same view that the applicant suggests. 18. Just because an opponent was released for the same charge does not deem it a necessity to accord him the same treatment to be released from continued detention. I would loathe exercising my discretion to rule that his detention in custody is not justified because his opponent was released from detention. I refuse him bail for the first reason.

19. Secondly, the applicant asked the court to exercise its discretion to grant bail because he denies every charge and that he has no prior convictions. He has four wives and nine children who depend on him for their survival and daily livelihood. He is the Deputy headmaster of a school and a respected member of the community. All these factors make him a suitable person for bail.

These reasons in my view are consequences of falling out of line with the law. They do not meet the exceptional circumstance test to be considered for bail. They may be useful after an exceptional circumstance has been shown to exist. I am unable to grant him bail under these reasons.

20. Finally, it was submitted that he suffers from hypertension which has lasted for the past 22 years. To contain it he must continue on hypertensive drugs and a prescribed diet preparation of vegetables without meat and oily food. The CIS did not have the facility or the type of food he required for his health and to continue in detention would increase the risk to his personal health and his condition will deteriorate.

21. He submitted a medical statement of Dr. Aiwa Moses from Kundiawa Hospital and records dating back to 2009, of treatments received for the medical condition to confirm his medical status and medication requirements. The hospital records show him to be a chronic hypertensive person for 22 years and a regular patient of the hospital.

22. The applicant clearly falls into the category of persons allowed bail in Paul Pawa v State (supra) and the State v Wiri Siminzi &Wanis Kanol (supra). His condition requires continued medication, periodic reviews at the hospital and specific diet requirements. If he misses these requirements his condition will definitely deteriorate.

23. The CIS is unable to facilitate medical services required by the applicant. They are unable to provide for the applicant's diet requirements either. Without these important requirements being readily available to the applicant he stands a real risk of facing deteriorating health conditions. His continued detention in custody will increase the risk of stress which is the cause of his hypertensive condition. The health condition the applicant is in coupled with the requirements to contain the illness in my view amount to an exceptional circumstance that warrants the grant of bail.

24. On the presence of S. 9 (f) consideration of the Bail Act that there is a likelihood of the applicant interfering with state witnesses I am of the view that strict bail conditions would adequately satisfy that consideration.

25. As to the three guarantors proposed, I am satisfied that they are persons of standing in the community and hold positions of responsibility. I have no reason to doubt from their resume' that they will adequately carry out their responsibility as guarantors

26. Bail is granted on the following conditions;

1. The applicant shall pay K1,500: 00 cash bail
   
2. He shall reside at Kamtai village pending his appearance in court.
   
3. He shall not interfere with any State witnesses while on bail.
   
4. He shall not leave Simbu Province under any circumstance without the leave of the court.
   
5. He shall report to a/Assistant Registrar at National Court Kundiawa every second Friday between 9am and 3pm commencing 27 June 2011.
   
6. The guarantors, Headmaster Thomas Waike, Pastor Jacob Naki and village Court Magistrate Awi Lukas shall each pay a cash surety of K200: 00 to total K600: 00.
   

Orders accordingly.

__________________________________________
Sino & Company Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyer for the State