N5401

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CRAP NO. 95 OF 2013

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:

ANDREW TEMANE
Applicant

AND:

THE STATE
Respondent

Mendi: Kassman, J
2013: 17th & 23rd April

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 Chap.340
Section 299(1) and (2) Criminal Code Act Chap.262

Counsel:

Nancy Lipai, for the State 
Cecelia Koek, for the Accused

DECISION ON BAIL

23rd April, 2013 

1.	KASSMAN J: Andrew Temane ("the Applicant") applies for bail. His application was filed and heard on 17 April 2013.

2.	The Applicant is charged with willful murder of Kevin Pena at Red Karanas Village, Imbongu District in the Southern Highlands Province on 28 June 2012.

3.	On the 29th day of June 2012, the Applicant was arrested and charged with one count of willful murder pursuant to section 299(1) of the Criminal Code Act. 

4.	Since arrest, the Applicant has been held in remand at Mendi Police Station Lock-up and later Bui-Iebi Corrective Institution outside Mendi for a period of over ten months.

5.	The Applicant relied on three affidavits all filed on 17 April 2013.

6.	The Applicant is 30 years old and is from Kopiri Village, Mendi, Southern Highlands Province and has two children ages 12 and 6 respectively. 
	
7.	The police Statement of Facts to the Information states:

"On Thursday 28th June 2012, at about 5.00pm the defendant who is now before the court, namely Andrew Temane was at his Kopiri village in Imbongu District, Southern Highlands Province.

Prior to the killing, the defendant was on field break at his home village after returning from Hides Gas Field. Whilst on break he learnt of his wife from Iokea village in the Gulf province, deserting him and getting married to Kagua man. And so that day he called his wife on a mobile phone and her phone was answered by a male person and was told that his wife had returned back to her first husband from Kagua.

Subsequently, the Kagua tribesmen who were to travel into Mendi town for the counting of votes were stranded at Walum road junction and decided to walk into Mendi on foot. There were about fifty-seven (57) tribesmen including the deceased, Kevin Pena walking on foot following the main highway. When the tribesman came upon the defendant's village in intercepted them and put up the argument with these group of men about his defector wife.

During the argument the defendant and his tribesmen attacked the Kagua tribesmen with bush knives and chased them from his village all the way to Red Karanas, which is about six (6) kilometers. While the unarmed Kagua tribesmen were fleeing from the attack, the defendant mobilized more tribesmen and went after them and killed one of the Kagua tribesmen.

The deceased Kevin Pena was with the rest of the tribesmen when he was attacked and killed after he was exhausted from running long distance. The deceased died instantly of multiple deep knife wounds to his body with intestines protruding out.

Following the killing of the deceased the defendant voluntarily surrendered himself to Ialibu police on the 30th July 2012, for taking part in the killing of the deceased. During interview with the defendant he admitted instigating and attacking the tribesmen but denied killing the deceased. He stated his wife's unfaithful marriage is the caused of his business break down and the recent killing. 

8.	The Applicant in his affidavit says:

"I am now in custody because it is alleged by the Police that on the 28th of June 2012 at Red Karanas Village in Imbongu District, I murdered another person named Kevin Pena. Therefore, I was arrested and charged for Willful Murder pursuant to section 229 of the Criminal Code Act and has been remanded in police since then.

Annexed and marked "A" and "B" respectively are true copies of the Information and Statement of Facts.

I have been wrongfully arrest for the alleged offence. I was never party to the death of the deceased and never killed the deceased. The deceased and my wife were having an affair whilst I was away in work place at the LNG site in Tari as a pickup driver of the LNG worker. It was a fight involving my clan and the deceased's clan after my relative caught the deceased with my wife, and therefore the fight started from there. It was a group fight that caused the death of the deceased. When I heard about the death of the deceased I came to my village the next day and I surrounded [sic] to the police because, I did not want the matter to further escalate into a big problem, and also I know that it was my wife's extra marital affairs that caused the death of the deceased.

After the incident my relatives paid K63,000 cash and 60 pigs valued ranges from K500.00 to K1,500.00 and one cow valued at K3000.00, totally K150,400.00 as compensation to the relative of the deceased.

Annexed hereto and marked with letter "c" is the true copy compensation Record form paid to the relative of the deceased on the 20th October, 2012."

9.	These are fairly serious statements. The police say the Applicant himself admitted instigating the attack that led to the ambush and assault which then resulted in the death of Kevin Pena. The Applicant denies he was involved in the ambush and attack and also denies any direct involvement in the death. The Applicant swears on oath that it was his relative who caught the deceased with the Applicant's wife and "the fight started from there." and that "…it was a group fight that caused the death of the deceased."

10.	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. 

11.	The two proposed guarantors also swore affidavits. One was Mr Brown Monda who described himself as a deacon of the PNG Bible Church for some eight years. The other is Reverend Charles Piki of the Church of Nazarene based in the Western Highlands Province, a position he has occupied for more than seven years. 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.

12.	The State opposed bail but did not file and rely on any affidavit material. Counsel for the State made reference to the "Statement of Facts" attached to the Information filed by police.

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 person 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 Chap 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 his detention in custody is not justified as said by Andrew J in Re Fred Keating.

31.	The Applicant needs to satisfy the court that he 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 he will return to court for his trial or that he will not commit an offence or interfere with State witnesses. Further, is his safety and welfare guaranteed if he is released from custody. The Applicant must satisfy me that for those reasons and any other exceptional or peculiar reason, his 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 his submissions and find he has not made out a case for the grant of my discretion in his favor. Neither is there any exceptional circumstance made in the affidavits of the two proposed guarantors. 

33.	I agree with Counsel for the State that "exceptional circumstances" apply where the Applicant's life or his health or welfare is in imminent danger if he remains in custody. 

34.	I assume the reference to the payment of compensation was to suggest that tension had eased and there would be no flare up of hostilities should the Accused be released on bail. If there was some affidavit from the family of the deceased saying the situation was settled and the matter was safely in the hands of the police and the court, that would certainly carry weight. Counsel also suggested the death resulting from a group attack was an exceptional circumstance warranting leniency to the Applicant. I see no logic in that submission. Further, the fact the Applicant surrendered to police suggests that was the safest haven for the Applicant. 

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

36.	I refuse the application for bail. 

____________________________________________

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