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Lakingu v State [2011] PGNC 62; N4333 (6 June 2011)

N4333

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 166 OF 2011

MAXON LAKINGU

V

THE STATE

Wewak: Ipang AJ
2011: 3 & 6 June

CRIMINAL LAW – Practice and procedure – Bail application – Committal pending trial on the charge of willful murder – S. 299 Criminal Code Act, chapter 262 – S. 9(1) of Bail Act, chapter 340 not made out – Bail refused.

Cases Cited

Re Herman Kagl Diawo [1980] PNGLR 148
Fred Keating v The State [1983] PNGLR 133

Counsel

Mrs. A. Meten, for the Applicant

Mr. F. Popeu, for the State/Respondent

DECISION

6 June, 2011

1. IPANG AJ: This is a contested bail application. The applicant Maxon Lakingu through his counsel Mrs. A. Meten from Public Solicitor's Office applied for bail so that the applicant can be admitted to bail pending his trial. At the time the bail application was made, the applicant is remanded at Boram Correctional Institutional Services (CIS). The applicant was remanded on a charge that on the 16 of January, 2011 at Bapandu village, West Yangoru he was alleged to have intentionally killed one Kelly Benny contrary to section 299 of the Criminal Code Act, chapter 262.
   
2. Mrs. A Meten of counsel for the applicant filed this application by way of Notice of Motion dated 2 June, 2011 and with the supporting affidavit of the applicant Maxon Lakingu sworn on the 31 May, 2011 and filed on the 2nd June, 2011. In support of his application for bail, the applicant deposed to the following supporting facts in his affidavit. He stated that;
   
   • (1) He is a male person, aged 38 years old and comes from Wagupma village, West Yangoru LLG, East Sepik Province. He stated that he is married and has five (5) children. He said his reason for seeking bail are as follows:-
     
     • (a) He is a first-time offender and has co-operated with the police;
       
     • (b) He has been in custody for more than four (4) months. He stated that he appeared for first (1st) mention on the 3 of March, 2011. He mentioned he is suffering from back pain. He also stated that on the 21 January, 2011 all his family belongings were set on fire by Bapandu youths. Also destroyed were all his garden crops. Because of the aforesaid reasons, he says his wife and children and his old aged father need his support to rebuild and take care of their daily needs;
       
     • (c) He assures the Court that if he is released on bail he will continue to reside with his family at Wagupma village and appear for his trial. He said he will abide by the bail conditions including keeping peace; and
       
     • (d) The applicant pledged to pay K500.00 cash bail in the event this Court grants him, his application. He has also the support of two (2) guarantors namely Pastor Jessie Kutuafi of AOG Mission Station, Wingel, West Yangoru and Councilor Aron Kami of Ward 4, Kanauki District, West Yangoru. Both these two (2) guarantors pledge K300.00 each as surety.
       
3. Apart from the grounds the applicant relied on, Mrs. A. Metan of counsel for the applicant submitted two (2) additional grounds that this Court should take in to account and these are;
   
   • (i) A form of reconciliation or mediation was held on the 4 February, 2011. That there was no tension after the mediation. Furthermore, the village of the deceased and the applicant are far apart; and
     
   • (ii) That the Boram CIS is due to be re-located paving way for the expansion of Boram Airport.
     
4. Mr. F. Popeu for the State objected to this bail application stating that the applicant is facing a very serious charge. He quoted section 9(1)(c)(i)(ii) &(iii) of the Bail Act, chapter 340. This provision states;
   

"Section 9 Bail not to be refused except on certain grounds

(i) 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:-

(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."

5. Mr. Popeu tendered a statement from the Investigating Officer, Detective First Constable Valentine Maku which further raised other grounds for objecting bail which stated:
   
   • (a) That his co-accused named as Subul from the same village as the accused is still at large. The councilor and the community have not communicated well with the police for his apprehension.
     
   • (b) The arrest of the accused (the applicant) had an impact on easing of tension from the deceased village and the accused village. Most importantly, the compensation known as "bel kol" was not paid by the deceased relatives and the accused arrest had eased that tension.
     
   • (c) The State through Counsel Mr. F. Popeu further submitted that the release of the applicant could quite possibly spark-off the tension between his relatives and the deceased's relatives. More so, the State submitted that for the safety of the applicant (accused), he be remanded. See s. 9(1)(d) of the Bail Act, chapter 340.
     
6. After having heard submissions from both sides the applicant and the State, I will decide on whether the applicant is entitled to bail. In order to do that I have considered the submissions put forward by both counsels and apply the relevant laws applicable.
   
7. Mrs. A. Meten of counsel for the applicant referred this Court to sections 6 and 7 of the Bail Act, chapter 340 and section 42 of the Constitution. Sections 6 and 7 of the Bail Act concerns when a bail application can be lodged and the latter deals with bail during adjournment(s). Section 42(6) of the Constitution deals with accused persons right or entitlement to bail during course of trial unless the justice of the case requires otherwise. See Kearney DCJ in Re Herman Kagl Diawo [1980] PNGLR 148.
   
8. In considering whether bail should or should not be granted, requirements under section 9(1) has to be satisfied. I am mindful of what Kidu CJ and Andrew J said in Fred Keating v The State [1983] PNGLR 133;
   

"If one of the considerations in s. 9 is present, it does not follow that bail must automatically be refused, there is always a discretion in the bail authority to grant bail."

9. In the same Fred Keating case (supra) Kidu CJ and Andrew J also said;
   

"When considering the grant or refusal of bail in cases other than willful murder or treason, the Court's 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 willful murder or treason, the bail authority may still have to consider the question of the interests of justice. This may involve considerations other than the criteria for refusing bail as established in this section."

10. The accused in this bail application has been charged with willful murder under section 299 of the Criminal Code Act, chapter 262. I have considered the grounds relied on by the applicant in seeking bail and submission by Mrs. A. Meten on behalf of the applicant. I have considered the submission from the State also. I have noted that the deceased relatives had initiated a form of reconciliation ceremony but nothing positive had eventuated. Prior to that the State had raised issued that police had difficulty effecting arrest on the applicant, more so there was no co-operation from the community, the arrest of the applicant had created tension between the deceased relatives and the accused relatives. The "bel kol" money was not paid and so the release of accused on bail could spark the tension and it is for the safety of the accused that he be remanded in custody. Moreso, the co-accused is still at large and this had added to the tension.
    
11. The reason that the accused is suffering from back pain is not a good reason for bail to be given but a good reason for seeking medical treatment. The next reason that all his family belongings and garden crops were destroyed by Bapandu youths, while this is still not a good enough reason, the accused should be aware that this is a normal consequence which naturally flow from his alleged misdeed. Basically, these grounds are considered to be outside of those stipulated under section 9(1) of the Bail Act, chapter 340.
    

12. There needs to be a material evidence by way of an affidavit from a reputable village person deposing as to the peace reconciliation and issue as to the tension whether or not existed, given the seriousness of the crime alleged to have been committed by the applicant. As it is I am of the view that in the interest of justice that bail is refused and the applicant be remanded in custody. I find this is not an appropriate case where I can exercise my discretion to admit accused to bail.

____________________________________
Public Solicitor: Lawyer for the Applicant

Public Prosecutor: Lawyer for the State