N4600

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 469 OF 2011

BETWEEN

THE STATE
AND:
CLIFF SIMANA,
KEVIN SIMANA,
SOLOMON YAMASERE
&
TAHAI MANASI

Wewak: Kirriwom, J.
2012: 13 & 16 January

CRIMINAL LAW – Practice and Procedure – Bail – Pending trial following committal – Wilful murder – Discretionary - Relevant considerations including humanitarian – Guarantors to deposit refundable cash surety – Bail granted with conditions.
Cases cited:

Re Fred Keating [1983] PNGLR 133

Counsel:
F. Fingu, for the Applicants
M. Kupmain, for the State

RULING ON BAIL APPLICATION
16th January, 2012

1.	KIRRIWOM, J.: This is an application for bail by these four accused (applicants) who have been committed to stand trial on one count of wilful murder under section 299(1)(a) CCA on 17 May 2011.

2.	The applicants are from Sengri village, Yangoru, ESP and are married men with children. They are accused of murdering the deceased Rex Numienen on Saturday, February 19, 2011.

3.	It is alleged that there was funeral in the village on that day where the people had gathered as is the custom when someone dies before burial. The deceased and other youths whilst under influence of alcohol disturbed this solemn occasion by fighting and not respecting those who gathered.

4.	The applicants are alleged to have retaliated by assaulting the deceased and others with sticks and rocks. The deceased sustained serious injuries and was taken to the local Dagua Health Centre.

5.	Dagua Health Centre could not do much so referred the patient to Boram Hospital on Monday. However the deceased died that same evening at Boram General Hospital.

6.	The applicants surrendered themselves to the Police following the deceased's death. They have been in custody since 24th March, 2011.

7.	First Constable Sein Topas of CID Yangoru Police Station, ESP who is the informant who laid the charge against the accused swore an affidavit in this application. He has personal knowledge of all the accused persons. He has no objection to the applicants being released on bail and he strongly supports bail on their behalf because he says they are all married men with children going to school and had these parental responsibilities to perform. FC Sein Topas even obtained detailed particulars of each applicant's family status and backed up his support for bail on these facts surrounding the children's schooling and welfare.

8.	This application is pursued under section 4 and 6 of the Bail Act and s.42(6) Constitution of PNG. Under s.4 of the Bail Act, only National and Supreme Court can determine bail in wilful murder cases. While section 42(6) Constitution makes an exception in cases of wilful murder and treason, the Supreme Court in re Fred Keating [1983] PNGLR 133 held that bail was a discretionary matter even in wilful murder cases.

9.	The Courts have therefore stressed that proper guidance for the bail authority is section 9 of the Bail Act. The Court must be inclined to grant bail as of right under the Constitution unless one of those considerations stipulated in section 9 existed. Even if the Court was satisfied of the existence of such ground, it still has discretion to either refuse or grant bail.

10.	In this case Mr Fingu submits that none of the considerations in section 9 applied to the Applicants. State had not rebutted this argument, however, asked for stronger bail conditions with increased amounts on cash sureties. Otherwise State does not oppose bail.

11.	The Applicants' grounds for seeking bail are (1) poor conditions in the remand section at Boram CS compounded by over-crowding at some point (2) parental responsibilities and children's school fees and (3) unlikelihood of getting early hearing because of the current back-log of cases in Wewak. Mr Fingu submits that on humanitarian grounds these men be released on bail.

12.	Each applicant is willing to pay cash surety of K500 and proposed two guarantors who pledge K250 in support of their bail. Mr Kupmain submits that the applicants be asked to pay between K700 – K1,000 each. It sounds or seems a lot of money but that range is the current trend reflecting society's progress and development. However one must also be mindful of the objective of bail and ensure that bail conditions are not way of the mark of an ordinary Papua New Guinean man in the village to afford. Otherwise there is no point in granting him bail when it is easy to simply refuse bail.

13.	I have considered the circumstances of the offence and also note that some compensation had been paid. Therefore my concern as to the safety of the applicants if released on bail can be safely ignored. In reality I do not see State securing any conviction for wilful murder on the facts as presented and it will also help in back-log reduction if the State could take some proactive measures by offering pleas to lesser charges in cases like this without actually waiting for the Defence team to make the first move. Plea bargaining is not formally recognised in our criminal practice and procedure but in reality, as practitioners at the bar, we do that every day as a matter of practice.

14.	Pastor Gideon Ponguira and auxiliary Constable Silas Safi have each pledged K250 to act as guarantors for Solomon Yamasere and Tahai Manasi. And Pastors Max Manimbi and Cedrach Pari also pledge K250 each as guarantors for Cliff Simana and Kevin Simana.

15.	Applicants Kevin Simana and Cliff Simana come from Sengri village and Solomon Yamasere and Tahai Manasi are from Simbomie village, Yangoru, ESP.

16.	Tahai Manasi is the eldest amongst them at 45 years married to two wives and has eight children. His two older children attend University of Technology and two others are in primary school. He has to find money to send his children to school.

17.	Kevin Simana is 36 years old married with one child. He was a villager at Sengri at the time of the incident that landed him in Boram. His only child was doing Gr 6 at Yangoru AOG Primary School at the time and he is much concerned about his well being and welfare.

18.	Cliff Simana is also 36 years old married with five children. He lived at Howi village with his family prior to his detention at Boram CS. He has children in school, eldest in Gr 7 last year and two others in Grades 3 and 1.

19.	Solomon Yamasere is 32 years old, married with three children. He was a villager from Simbomie at the time of his arrest and detention.

20.	Evidence before me does not portray these men as untrustworthy and irresponsible bunch who will abscond bail once released from custody. It seems to me that these men come from villages in Yangoru area easily accessible by road that their policing of whatever conditions imposed on their bail would not cause them much inconvenience.

21.	Over-crowding in prison cells and unhealthy and unhygienic conditions in the prison compound accommodating beyond the normal capacity allowed is an administrative problem or issue that CS management cannot pass the buck onto the Court and urge Court to release more persons on bail to ease up the congestion and avoid spread of diseases. These grounds have in the past been entertained on the basis of humanity or humanitarian grounds but in an ideal situation, resources and facilities setbacks in prisons must be management priority.

22.	In the circumstances I grant the applicants bail on these conditions:

1)	Each pays cash surety of K500.00.

2)	Each guarantor shall pay K200.00 for each applicant's guarantee which means a total of K400 each guarantor is to pay.

3)	Report to National Court Wewak every fortnight Monday between 9.00 am and 4.00 pm.

4)	Attend all monthly call-overs.

5)	Not leave Wewak and East Sepik Province without the approval of the Court until the case is dealt with.

Paul Paraka Lawyers: Lawyers for the Applicants
Public Prosecutor: Lawyers for the Respondent