N5400
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

MP NO. 42 OF 2012

IN THE MATTER OF AN APPLICATION FOR BAIL
PURSUANT TO SECTION 42(6) OF THE CONSTITUTION
AND SECTIONS 4 AND 6 OF THE BAIL ACT c. 340

BETWEEN:

ANGELA YAP
Applicant

AND:

THE STATE
Respondent

Mendi: Kassman J
2012: 18th September & 12th November

CRIMINAL LAW – Application for bail – charge of willful murder – existence of conditions under section 9 Bail Act – no case made that continued detention in custody is unjustified - bail refused 

Case Law cited:

Re Bail Application; Fred Keating v The State [1983] PNGLR 133
Bernard Juale v The State N1887

Legislation cited:

Section 42(2) Constitution
Sections 4, 6 and 9 Bail Act c.340
Section 299(1) and (2) Criminal Code Act c.262

Counsel:

Mr Joseph Waine, for the State 
Mr Jeffery Kolowe, for the Accused

DECISION ON BAIL

12th November, 2012

1.	KASSMAN J: Angela Yap ("the Applicant") applies for bail. Her application was filed on 6 September 2012 and was heard on 18 September 2012.

2.	The Applicant and her husband Werekeya Yap are charged with willful murder of Gibson Namba at Pomberal Health Centre, Nipa Kutubu District in the Southern Highlands Province on 24 August 2011.

3.	The Applicant's co-accused escaped from custody. The Applicant now refers to him as her former husband.

4.	The Applicant relied on three affidavits all filed 6 September 2012.

5.	The applicant is 19 years old and is from Hambura, Topa Village Karinz, Mendi, Southern Highlands Province. Prior to her arrest, she was married and living with her former husband, the co-accused, in his village at Pomberal, in the Nipa Kutubu District, Southern Highlands Province.

6.	The Applicant and her former husband were, on the 2nd of September 2011, arrested and charged with one count of willful murder pursuant to section 299(1) of the Criminal Code Act. Since her arrest, the Applicant has been held in remand at Mendi Police Station Lock-up and later Bui-Iebi Corrective Institution Service outside Mendi for a period of over fourteen months.

7.	In her affidavit, the Applicant says:

"i. On 24th August 2011 between 5:00pm and 6:00pm, I was at the market near Pomberal Health Centre doing sale of my betel nut when the deceased who was from Wabag and was employed as the health extension officer, at Pomberal Health Centre, came and bought betel nut. I do not know the deceased and have never met the deceased during my one year with my co-accused (former husband).

ii.	The deceased also asked for lime and I gave it to him and other person, whom I do not know. It was during that time that my co-accused (or my former husband) who stood some distance away from me saw what was happening so him being suspicious and jealous came over to where I was and asked me about the conversation I had with the deceased.

iii.	I told my co-accused that nothing happened, as the deceased only asked for lime after he bought buai and I gave him lime. My co-accused was not satisfied with my answer and he thought I was lying. So my co-accused then walked over to where the deceased was and further questioned him. In the process, my co-accused got a small kitchen knife which he may have had it with him during that time and stab the deceased twice on the thigh several times on the back.

v.	After that my co-accused escaped leaving me behind. I packed up and also went to my co-accused's house. I also did not know what happened to the deceased after I left. A week later my co-accused came to the house and we stayed.

iv.	On 2nd September 2011, the police came to the house and took us to Mendi Police Station to question us in relation to the death of the deceased. At the station, we were arrested and charged for willful murder."

8.	These are fairly serious statements that confirm the Applicant's involvement in the death of the deceased. At the least, this is an admission by the Applicant of her presence at the scene at the time the deceased was attacked and stabbed with a knife or knives. The Applicant says it was her former husband or her co-accused who stabbed the deceased and inflicted the injuries on the deceased and that took place in her presence.

9.	I remind myself that those statements are matters for the trial but one cannot ignore the fact the Applicant swears on oath as to those matters stated above. 

10.	The two proposed guarantors also swore affidavits. One was Mr Luke Sodome a Village Court Magistrate of Hambura, Topa Village, Karinz, Mendi Southern Highlands Province. The other is Pastor Paul Mark a church pastor of Good News Christian Church, at Hambura, Topa Village, Karinz, Mendi, Southern Highlands Province. Both say they have known the Applicant for many years, they were surprised to hear of the charges being laid against the Applicant and they are prepared to act as guarantors should the Applicant be granted bail.

11.	The State opposed bail but did not file any reply on any affidavit material. Mr Waine for the State made reference to the "Statement of Facts" attached to the Information filed by police.

12.	The State says the deceased was a nursing officer at Pomberel Health Centre and lived within the vicinity of his place of work and both accused lived together at a house some three kilometers away from where the deceased lived. At between 6am and 7am on 24 August 2011, both accused persons attended at the deceased's residence and attacked the deceased stabbing him with kitchen knives. The Applicant's husband suspected the deceased and the Applicant were involved in a sexual affair. The deceased was admitted to Mendi General Hospital but died five days later on 29 August 2011. The State says the deceased died as a result of the injuries sustained in the attack by both accused persons.

13.	The Bail Act Chapter 340 regulates the conditions and the qualifications for the granting of bail.

14.	There are advantages for any accused person being granted bail compared with an accused who is refused bail and held in custody awaiting trial. An accused on bail is able to confer with a lawyer and prepare for the trial in familiar surroundings at home or wherever suitable. Further, the accused is able to live with family and continue employment or activity that is self-sustaining and needed or relied on by dependants and family of the accused. 

15.	Consistent with the presumption of innocence until one is found guilty by a court of competent jurisdiction, the right to bail is available "more readily" as provided in the introduction to the Bail Act. This reinforces section 42(6) of the Constitution which provides "A person arrested or detained for an offence (other than treason or willful 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."

16.	As a general rule, the State carries the onus to satisfy the court that there exists a risk that the accused will not return for his trial and therefore bail should be refused.

17.	The presumption in favor of the grant of bail shifts under section 9 of the Bail Act which provides "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;

(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;

(d)	that the person is likely to commit an indictable offence if he is not in custody;

(e)	it is necessary for the person's own protection for him to be in custody;

(f)	that the person is likely to interfere with witnesses or the person who instituted the proceedings;

(g)	that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;

(h)	that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;

(i)	that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medial use under prescription only of the person in custody;

(j)	 that the alleged offence is one of breach of parole. 

18.	The Applicant is charged with the offence of willful murder.

19.	The offence of willful murder is a very serious matter. It is a charge laid where the State claims an accused person has, by a deliberate act, terminated the life of another person. The seriousness of the charge is also reflected in the penalty that an accused person faces once convicted and that is stated in section 299(2) of the Criminal Code "A person who commits willful murder shall be liable to be sentenced to death."

20.	The seriousness of the offence is further reflected in Section 42(6) of the Constitution which provides "A person arrested or detained for an offence (other than treason or willful 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."

21.	In other words, bail is not readily available to accused persons charged with the offence of treason or willful murder.

22.	In recognition of this approach, the law enacted by Parliament to provide for bail to be granted states that a person charged with willful murder shall not be granted bail except by the National Court or the Supreme Court and that is set out in section 4(1)(a) of the Bail Act Chapter 340. Under the Bail Act, authorities that may grant bail generally to accused persons include the police and magistrates of the District Court but the exception is made for a person charged with willful murder, and other such serious charges or offences arising from serious facts and circumstances, where only the National Court or Supreme Court may grant bail and no other authority.

23.	The Applicant is correctly before this Court. 

24.	I now need to decide whether any of the considerations under section 9 of the Bail Act exist. 

25.	Having considered all the relevant facts and circumstances as discussed above, I agree with the State that the considerations in section 9(1)(c)(i),(ii) and (iii) apply in that this was a serious assault, threats were made to another person, the Applicant was involved and a knife or knives were used which are offensive weapons. 

26.	I now need to decide whether, despite the existence of the section 9 considerations, I still have the discretion to grant bail. 

27.	In Re Bail Application; Fred Keating v The State [1983] PNGLR 133 Kapi DCJ said at page 138:

 "The exercise of the discretion to grant bail should be used readily unless any one of the matters under s.9 is established. The Act treats each consideration as equal. One is not to be considered as less serious than the other for the purposes of refusing bail. That is the effect of s9. However s9(1) provides for refusal of bail on "one or more" of these considerations. This envisages a case where objection to bail may be taken on more than one of these considerations. I am of the opinion that when one of these considerations is established, the court should exercise its discretion to refuse bail."

28.	In the same case, Andrew J said at page 140:

 "In my judgment the use of the word "shall" in s9(1) of the 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 Applicant shows cause why his detention in custody is not justified. Such an exercise is always discretionary."

29.	In Bernard Juale v The State N1887, Kirriwom J when considering In Re Fred Keating said:

 "The question is always one of degree. Each case must be decided on its own peculiar circumstances. The Constitution under section 42(6) does not deny bail to a person charged with willful murder and treason. The fact that it excepts willful murder and treason does not necessarily connote a negative proposition of law. It simply means that bail is not readily and automatically available but that the person charged must seek redress for bail through other avenues. That avenue is provided under sections 4 and 6 of the Bail Act."

30.	 I agree with Kirriwom J and find that despite the presence of considerations under section 9 of the Bail Act, I still retain the discretion to grant bail provided exceptional circumstances exist or the Applicant shows cause why her detention in custody is not justified as said by Andrew J in Re Fred Keating.

31.	The Applicant needs to satisfy the court that she is not an "unacceptable risk." In other words, despite the presence of factors covered by section 9(1)(c)(i),(ii) and (iii), is there guarantee that she will return to court for her trial or that she will not commit an offence or interfere with State witnesses. Further, is her safety and welfare guaranteed if she is released from custody. The Applicant must satisfy me that for those reasons and any other exceptional or peculiar reason, her continued detention in custody at Bui-Iebi Corrective Institution is not justified. 

32.	I have discussed above the relevant parts of the Applicant' s affidavit and her submissions and find she has not made out a case for the grant of my discretion in her favor. Neither is there any exceptional circumstance made in the affidavits of the two proposed guarantors. 

33.	I find that the Applicant has failed to convince me that her continued detention in custody is unjustified. 

34.	I refuse the application for bail. 

_______________________________________________
Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Applicant