Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Nasala v Independent State of Papua New Guinea [2014] PGNC 281; N5711 (16 July 2014)

N5711

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 212, 213 & 214 of 2014

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

BETWEEN:

ANDREW NASALA
First Defendant/Applicant

AND:

NATHAN MATIA
Second Defendant/Applicant

AND:

ROBERT PENI GIGI
Third Defendant/Applicant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Complainant/Respondent

Kokopo: Oli, AJ
2014: 14th, 16th July

CRIMINAL LAW- Practice and Procedure – Bail Application – Pending Committal proceedings at District Court before committal to the National Court – Offence wilful Murder – Principles applicable on bail application – Discretion – Bail Act 1977, s. 9(1).

CRIMINAL LAW – Practice and Procedure - Bail Application – Pending Committal proceedings at District Court before committal to the National Court – Offence wilful Murder – Principles applicable on bail application – Discretion – Bail Act 1977, s. 9(1) - Considered bail application by defendant/applicant made under s. 4 of Bail Act and s. 42(6) of the Constitution -– Consideration of conditions under s. 9 of Bail Act – Prosecution proven grounds under s. 9 (1) of Bail Act – Sufficient to refuse Bail – Defendant/Applicants bail application is refused -Defendant/Applicants be remanded.

Cases Cited:

Re Samir Taleb Abdullah Jaber Anabtawi [1980] PNGLR 195
Fred Keating v State [1983] 133 (SC257)
John Jaminen v State [1983] PNGLR 122 (2 May 1983)

Counsel:

Mr Lukara Rangan, for the State
Mr Jim Wala, for the Accused
Mr Fidelis Lugabai - Defence Counsel Assisting

RULING ON BAIL APPLICATION

16th July, 2014

1. OLI, AJ.: The Applicant/Defendants each and severally seek:
   
   • (i) Bail be granted to them pursuant to Section 42 (6) of the Constitution and Sections 4, 6 and 9 of the Bail Act 1977, pending the completion of the Committal Proceedings against them in relation to the charge of Wilful Murder and or completion of the trial, if committed to the National Court on the said charge.
     
   • (ii) Such further or other orders as deemed fit by the Court.
     
2. The Applicants have each and severally being accused and charged that on Sunday 21st October 2012 at Ravat village, Raluana LLG, Kokopo District, East New Britain Province, the defendant/applicants each and severally "did wilfully and unlawfully murder another person namely; Mr Tigat Mago, a national male" thereby contravening section 299 of the Criminal Code Act as amended.
   

FACTS

3. The brief facts surrounding the matter now before the Court are as follows:
   
   • (i) The three defendant/applicants in this matter are namely; First; Senior Constable ANDREW NASALA of Simbang Village, Finchaffen Sub-District Morobe Province, Second; Reserve Constable NATHAN MATIA of Nanganaga Village, Raluana LLG, Kokopo Sub-District East New Britain Province and Third; Constable Robert PENI GIGI, of Rapitok No.1 village, Toma/Vunadidir LLG, Gazelle District, East New Britain Province.
     
   • (ii) It is alleged that on Sunday 21st October 2012 at about 10.00 am the defendant/applicant Robert Peni Gigi was on duty at Kokopo Police Station. The accused Robert Peni Gigi was at the station when he received a complaint of wilful damage lodged by an employee of the Kokopo Village Resort (KVR). The complainant complained that previous night which was Saturday 20th October 2012, a driver namely KAPIA PIUS was doing a drop off run on the highway past Ravat Village when some drunkards damaged the company vehicle to wit: a Nissan Navara, white in colour, double cabin. Not only the Kokopo Village Resort vehicle was damaged but another vehicle belonging to Raim Village was also damaged by the same drunkards.
     
   • (iii) Based on that complaint the accused Robert Peni Gigi and Constable EMMANUEL TIMMY got on with the employee of the Kokopo Village Resort (KVR) and drove to Baliora Police Barracks to see Senior Constable ANDREW NASALA who is their Kokopo Taskforce Commander. The accused and Constable EMMANUEL TIMMY then approached their Commander, Senior Constable ANDREW NASALA and asked for his assistance to go up to Ravat Village and attend to a complaint of wilful damage and also apprehend suspects involved in the incident.
     
   • (iv) Their Commander, Senior Constable ANDREW NASALA then picked up his AR15 A2 Police Assault Rifle and got on with the accused Robert Peni Gigi and Constable EMMANUEL TIMMY in that civilian vehicle and drove out to the police male single quarters where they picked up Constable POLOPWEI NIOPAN. They then drove to Tamavatur where they met up with the Raim villagers who were waiting there for them to go up to Ravat village. From there, Senior Constable ANDREW NASALA called Reserve Constable NATHAN MAITA to assist them as their police vehicle was down with fuel.
     
   • (v) There were several vehicles waiting and so the policemen then split into three (3) groups. The accused Robert Peni Gigi went with the third group whilst Constable EMMANUEL TIMMY and Constable POLOPWEI NIOPAN went with another and their Commander. Senior Constable ANDREW NASALA got on with Reserve Constable NATHAN MAITA in his private vehicle. From there all the vehicles proceeded up to Ravat village.
     
   • (vi) At Ravat village, the accused and other policemen with the assistance of the Ravat village former Chairman of Law & Order namely ALLAN MINIKULA and the former village councillor namely; NERRY WARKUVO went and apprehended the deceased, late TIGAT MAGO. The deceased was sitting down at his house after a church service when apprehended by the police.
     
   • (vii) The accused Robert Peni Gigi and the other policemen then removed his belt and tied both of his hands to his back. The deceased was then escorted by the accused Robert Peni Gigi and other Policemen and the villagers up to the main road. At the main road the accused Robert Peni Gigi and the other policemen then pushed the deceased to another policeman who was waiting in the vehicle on the road. When pushing the deceased to that policeman standing beside the waiting vehicle, the policemen said that in pidgin and I quote; "yu go long boss", (you go to the boss). From there this policeman they referred to him as boss picked up a stick on the side of the road and started assaulting the deceased with a stick. The other policemen including the accused Robert Peni Gigi started assaulting the deceased using their hands, sticks and boots when he fell down to the ground.
     
4. The accused Robert Peni Gigi was clearly identified by witnesses as one of the policemen who assaulted the deceased. The accused Robert Peni Gigi also used a stick to hit the deceased several times all over his body and when the deceased fell down to the ground; the accused Robert Peni Gigi stood on deceased face forcing the head against the ground.
   
5. The deceased was badly assaulted by the accused Robert Peni Gigi and other policemen at Ravat village before thrown into the back trailer of the vehicle belonging to Reserve Constable NATHAN MAITA and drove off with their Commander, Senior Constable ANDREW NASALA who was driving at the time.
   
6. The deceased was not brought down straight from Ravat village to Kokopo Police Station but instead taken to Nangananga village before going back to Kokopo Police Station and detained in the police cells. The accused Robert Peni Gigi was the one who detained the deceased and confirmed the injuries sustained by the deceased as there was blood all over the deceased body at the time.
   
7. On Monday 22nd October, 2012 at about 7.00am, the condition of the deceased deteriorated in the cells and the policemen released the deceased from the cells. The deceased was quickly transported to Vunapope hospital. At Vunapope hospital the deceased was straight away admitted for injuries he sustained from police beatings at Ravat village and along the way to Nangananga village and back to Kokopo Police Station.
   
8. Upon clinical medical examination at the Vunapope hospital it revealed that the decease sustained bruises and swelling over his left eye brow and pinnal. Central nervous system examination revealed he was deeply unconscious without any localizing signs. The deceased was then admitted to the surgical ward as he was diagnosed with severe head injury. The deceased remained in coma during the rest of his stay in Vunapope hospital. His condition deteriorated and finally died on Sunday 28th October 2012, after 7 days struggling for his life to recover from his serious injurious he sustained from the defendant/applicants.
   
9. The death of late TIGAT MAGO was then reported to CID – Kokopo and an initial investigation was carried out with Post Mortem conducted to establish the cause of death. Matter could not be properly investigated for some unknown reasons and the investigation file was handed over to the Police Internal Affairs Investigation Unit sometime this year, 2014. A follow up investigation in to this incident was carried out by the investigation team from Port Moresby in July 2014. Straight after the follow up investigation done by the investigation team from Port Moresby, the accused Robert Peni Gigi together with his two other accomplishes were invited to the Internal Affairs Unit Office at Ralum, ENB Provincial Police Head Quarters on Tuesday 8th of July, 2014 for an interview.
   
10. The defendant/applicants Robert Peni Gigi, Andrew Nasala and Nathan Maita were then interviewed in relation to the incident, cautioned, informed of their Constitutional Rights under Section 42 (2) of the Constitution, told of their charge laid against them and now detained in the Police cells at Kokopo Police Station.
    

LAW

11. The defendant/applicants are entitled to bail after being formally charged with wilful murder. The learned counsel Mr. Wala filed bail application on behalf of the defendant/applicants with supporting affidavits pursuant to s. 42 (6) of the Constitution and ss. 4, 6 & 9 of the Bail Act 1977. These provisions read:
    

42. LIBERTY OF THE PERSON.

(6) A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

AND relevant sections of the Bail Act 1977 refer to as ss. 4, 6 & 9 and the said provisions are referred to hereunder read:-

4. ONLY NATIONAL OR SUPREME COURT MAY GRANT BAIL IN CERTAIN CASES.

(1) A person–

(a) charged with wilful murder, murder or an offence punishable by death; or

(b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or breaking and entering a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence, shall not be granted bail except by the National Court or the Supreme Court.

(2) For the purposes of Subsection (1), "firearm" includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile.

6. APPLICATION FOR BAIL MAY BE MADE AT ANY TIME.

(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.

(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.

(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section 9.

9. BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

(1)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 medical use under prescription only of the person in custody;

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

(2) In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.

(3) For the purposes of Subsection (1) (i), "narcotic drug" has the meaning given to it in the Customs Act 1951.

ISSUE

12. The issue is whether the defendants/applicants who are charged with wilful murder have shown that they are entitled to bail and have shown that their detention in custody is not justified?
    

APPLICATION OF FACTS TO THE LAW

13. The applicant/defendants are entitled to bail under s. 42 (6) of the Constitution as of right, except the charge with wilful murder and treason. However, Bail authority is restricted to bail conditions and grounds under s. 9 (1) of the Bail Act 1977. If, a person is charged with any one of the offences stipulated under s. 4 of the Bail Act 1977, the Bail Application can only be determined by National and Supreme Court as the ultimate Bail authority. Whilst the applicant/defendants have guaranteed right to bail under s. 42 (6) of the Constitution, the applicants/defendants must apply for Bail under s. 6 of the Bail Act to the National and Supreme Court to consider and may grant or refuse bail, subject to clear conditions and grounds stipulated under s 9 (1) of the Bail Act, of which are quite explicit and imposes strict conditions. That is the case in this case now before the Court.
    
14. The learned State Prosecutor advance a Supreme Court case authority on Re Fred Keating v State [1983] PNGLR 133 (SC257):
    

The applicant is charged with the wilful murder of his wife. He is in custody pending his trial in the National Court. His application for bail in the National Court was refused on 22nd April 1983. He applied to this Court under s. 13 (2) of the Bail Act 1977, but the Supreme Court also refused him bail. His Honour CJ Kidu (as he then was) in responding to the bail application and grounds that the applicant submits for Court to consider and claim that he should be allowed bail because:

1. He had surrendered his passport (he is a British citizen) to the District Court at Goroka and therefore was unlikely to leave the country.
   
2. His life was not threatened nor was it likely to be threatened.
   
3. He was unlikely to violate any one of the grounds specified in s. 9(1) (a) to (g) of the Bail Act 1977.
   

In the majority decision the Court held that:

1. An application for bail by a person charged with wilful murder is to be determined pursuant to s. 9 of the Bail Act only, i.e. without reference to the interest of justice.
   
2. The grant or refusal of bail pursuant to s. 9 of the Bail Act is discretionary in all cases other than wilful murder and treason.

Re Samir Taleb Abdullah Jaber Anabtawi [1980] PNGLR 195,not followed.

3. (By Kidu CJ and Andrew J, Kapi DCJ not deciding). The grant or refusal of bail pursuant to s. 9 of the Bail Act is discretionary in cases of wilful murder (and treason).
   
4. (By Kidu CJ and Andrew J, Kapi DCJ not deciding).Once one or more of the considerations in s. 9(1) are proved bail should be refused unless the applicant shows cause why the detention in custody is not justified.

Re Samir Taleb Abdullah Jaber Anabtawi [1980] PNGLR 195, not followed.

15. The State prosecutor submits that the same considerations should be applied to this case and the defendants'/applicants' bail application should be refused.
    
16. The principle considerations that favours the defendants/applicants from the above case is that the bail application after committal to National Court was refused because the applicant used a dangerous weapon to kill his wife and there was evidence that the applicant was likely to interfere with one of the known State witnesses Miss Anne Thomson. In this case the defence counsel submit that though there are evidence of wide range of murder weapons been used, there is no evidence of a known potential witnesses that the applicants/defendants are likely to interfere with, if they are granted bail by the Court with strict conditions attached.
    
17. The State prosecutor submits that prosecution has proven one or two of the grounds under s. 9 (1) of Bail Act, however, the Court has the discretion to consider the merit of the case and existence of exceptional circumstances in it to grant or refuse the bail. The State Prosecutor maintains that the onus is on the prosecution to show that one or two of the grounds are present under s. 9 (1) of the Bail Act, it is sufficient for Court to refuse the bail application. In this case the prosecution has established through Case Officers affidavit that murder weapons use were sticks, police issued boots that kicked the deceased to his body and head, that satisfied the requirement under s. 9 (1) (c) (i) & (ii) and (f) of the Bail Act. The Case Officer Detective Senior Constable Stanley Japele of Police Internal Investigation Unit, Port Moresby, National Capital District in his affidavit states in particular that, Wilful Murder case is one of the classic examples of police brutality behaviour in East New Britain Province where the deceased was handcuffed, badly assaulted using hard objects and dumped in the cells without any consideration to his deteriorating health condition whilst being detained in police custody and finally died after one week without being formally charged.
    
18. The Case Officer provide brief background to this case that he is currently investigating this Wilful Murder case involving five members of the Kokopo Police Task Force Unit and couple of civilians who are believed to be people of Raim Village, Toma/Vunadidir LLG, Kokopo District, East New Britain Province.
    
19. The Case Officer confirmed that the first three (3) accused who have been interviewed by him and formally charged for one count of Wilful Murder under Section 299 (1) of the PNG Criminal Code Act, Chapter 262 are namely; Robert PENI GIGI, Nathan MAITA and Andrew NASALA. These three (3) accused are members of the Kokopo Police Taskforce Unit, East New Britain Province. He said that these three (3) accused are now remanded in custody at Kokopo Police Station holding cells after being charged.
    
20. The Case Officer also confirmed that the other five (5) outstanding suspects are yet to be identified and are civilians from Raim village and two (2) policemen yet to be charged are Constable Polopwei NIOPAN and Constable Timmy EMMANUEL.
    
21. According to the Case Officer Constable Polopwei NIOPAN was advised to report to him for a police record of interview on Wednesday 2nd July 2014 but to no avail as he escaped to Pomio District, East New Britain on the next day on Thursday 3rd July 2014. He is yet to be arrested and charged. However, Constable Timmy EMMANUEL has already been transferred out to Southern Mobile Group (SSD Division) and is now based at McGregor Police Barracks in Port Moresby, National Capital District. This policeman is also yet to be arrested and charged.
    
22. Since, this event took place in 2012, the initial investigation was done by the locally based CID members of Kokopo Police Station, the Case Officer is yet to properly identify and interview CID members who are actually involved in this Wilful Murder investigation.
    
23. The matter is now a Police – Ombudsman Commission Oversight case. Out of 61 Recommendations for Police 2004 Review, Recommendation No: 29 calls for Police – Ombudsman Oversight due to so much police brutality, Abuse of police powers and responsibilities, Violation of human rights, Police negligence resulting in death, injuries and/or damages to properties and many other high profile cases involving police which cost the State millions of kina that has been reported to both print and digital media in the past.
    
24. The State Prosecutor in support of the Case Officer's recommendations in objecting to the bail application made by these three (3) defendants/applicants on the following grounds state as follows:
    
    • The investigation is still continuing.
      
    • There are policemen and civilians yet to be arrested and formally charged for the same crime of Wilful Murder.
      
    • There are more witnesses yet to be interviewed and evidences yet to be collected including exhibits and the initial investigation files held by the Kokopo based CID members.
      
    • The Investigating Team will return to Port Moresby on Monday 14th of July, 2014 as the two (2) weeks given to carry out the investigations here is not enough. The Case Officer asses that there are many things yet to be done before the compilation of court hand up brief (court files).
      
    • Case Officer has received reports from few witnesses he has already interviewed, that there were threats made to them long time since the death of the deceased, and those threats have stopped the relatives of the deceased to move freely and exercising their rights to seek justice for the death of their relative.
      
    • There are most likely chances that these three (3) accused and the ones still outstanding will interfere with State witnesses and other possible witnesses yet to be interviewed.
      
    • The safety of the three (3) accused, and the outstanding suspects and also the relatives of the deceased (complainants) are very important. The news of the arrests and charging of these three (3) accused have spread and anything could have happened as from now onward which would trigger danger to their lives and security of all parties involved in this case, is a concern.
      
    • The employment circumstances of accused Andrew NASALA has changed and that he is now a dismissed member of the Police Force. The accused was served with his dismissal notice last week on Wednesday 02nd July 2014 and there is a possibility or likelihood chance of him leaving the Province.
      
    • The Case Officer finally gave the above reasons and rely on them in objecting to the bail applications made by three (3) defendant/applicants. Whilst Case Officer understand that it is their constitutional right to bail after being charged by police and be given a fair hearing before the court of law, but as the Case Officer investigating this particular case, the Case Officer ask the Court to consider the seriousness of the case and the circumstances surrounding this case and remand these three (3) accused in custody till all investigations are completed and also all outstanding suspects are arrested and charged.
      
25. The revelation of unprecedented delay in investigating this matter since 2012 to this date by CID Police at Kokopo Police Station leaves alot to be desired and it appears that CID Officers at Kokopo Police Station appear to have compromised their constitutional duty to investigate complaints and lay charges where it is due, according to the law. The unprecedented delay in investigating this matter require some reasonable explanation by OIC Division here at Kokopo Police Station, when those Police Officers alleged to have been involved and those Villagers from Raim village were within their vicinity to be reached and dealt with according to the law.
    
26. However, it does reflect a snail's pace progress from early stages of the Kokopo Police CID investigation team since 2012, however, attempts were very unfruitful, if any, til this year July 2014 that resulted in the charging of these three accused now before the court. The investigation process on this matter is still progressing and the tension in the community is still tense due to threat issued by the accused and those involved from Raim Village.
    
27. Due to the very tense atmosphere being felt by relatives of the deceased in the village upon arrest of the three accused, their early release on bail is undesirable at this stage. The paramount consideration, in my view, is to maintain peace and harmony and protection of life and property from both sides. Hence it requires both parties their level best spirited co-operation to allow police to complete their thorough investigation without fear or favour and undue influence or intimidation . But allow the due process of the law to take its' cause and parties not to interfere with due investigation process that may pervert the natural cause of justice. It is an undeniable fact that the applicants/defendants are presumed innocent until proven guilty through the due process of law. The onus is on the prosecution to prove every element of the wilful murder charge beyond any reasonable doubt, the requisite standard of proof in criminal matters.
    
28. However, the learned Prosecutor Mr. Rangan finally submits that State objects to the Bail Application by the defendants/applicant based on the affidavit filed by the Investigation Officer, as the Case Officer, Detective Senior Constable Stanley Japele of Police Internal Investigation Unit, who categorically object to the applicants'/defendants' bail application on the grounds enumerated under s. 9(1) of the Bail Act 1977. The learned Prosecutor made particular reference to grounds under s. 9 (1) (c) (i) & (ii) and (f) of the Bail Act and Case Officer in his affidavit made special reference for the Court to take serious note and states that:
    
    • The investigation is still continuing.
      
    • There are policemen and civilians yet to be arrested and formally charged for the same crime of Wilful Murder.
      
    • There are more witnesses yet to be interviewed and evidences yet to be collected including exhibits and the initial investigation files held by the Kokopo based CID members.
      
    • We have received reports from few witnesses we have already interviewed that there were threats made to them long time since the death of the deceased and those threats have stopped the relatives of the deceased to move freely and exercising their rights to seek justice for the death of their relative.
      
    • There are most likely chances of these three (3) accused and the ones still outstanding to interfere with State witnesses and other possible known witnesses yet to be interviewed.
      
    • The safety of the three (3) accused, the outstanding suspects and also the relatives of the deceased (complainants) are very important. The news of the arrests and charging of these three (3) accused have spread and anything could have happened as from now onwards which would trigger danger to their lives and security of all parties involved in this case is a concern.
      
29. It is on the basis of the above reasons and including the obvious breaches under s 9 (1) of the Bail Act 1977, as per the affidavit of Detective Senior Constable Stanley Japele who strongly warns against the granting of bail to the accused.
    
30. However, in view of the spirit in which the bail application is made, in particular, reference to possible job lose as career policeman and family suffering as a result of bail being refused, I refer to the case of John Jaminen v State [1983] PNGLR 122. Pratt, J:
    

"This was an application under s. 11 of the Bail Act 1977 for bail by a Member of Parliament who was convicted on four count of rape and sentenced to four years imprisonment on each count by Woods A.J at the sitting of the National Court in Mt Hagen. The applicant represents the people of Yangoru-Saussia electorate. On application for bail by an appellant, a Member of Parliament, who had been convicted on four charges of rape, one of the grounds relied upon was that the applicant would not be able to attend the sitting of the Parliament to be held before the appeal was heard and his electors would thereby be deprived of their due representation. The Bail Application was dismissed. The Court held that applicant needed to show "exceptional circumstances" to be granted bail pursuant to s. 11 of the Bail Act 1977. The Court went further to expound what is "exceptional circumstances" it held that: "Whilst "exceptional circumstances" must in some way be related to the particular applicant, they need not be confined to matters entirely personal to the applicant such as health, financial situation or previous good character, but they cannot include that which flows as a natural consequence of the conviction because of the particular status of the convicted person."

31. The case on foot can be distinguished with the above case, but the reasoning process somewhat has the same rationale. In respect to the John Jaminen case, the applicant was required to show exceptional circumstances under s. 11 of the Bail Act 1977, before bail could be granted. The Court finds the applicant did not show exceptional circumstances, because he brought it upon himself the situation that he was in that he deprived his electorate Yangoru-Saussia representation in the Parliament, which was the consequence of his own action, not someone else's. In the present case on foot, the defendants/applicants upon their arrest are held in custody charged with the serious offence of wilful murder. They need to satisfy the requisite requirements under s. 9 (1) of the Bail Act 1977, why they should not be held in custody. Hence, they must go through the due process of the law and may be vindicated if found not guilty during the trial proper.
    
32. My brief recollection of the summary of facts and very dramatic background to this wilful murder case, where the three accused with other members of the Police Task Force Unit were attending to a complaint by Kokopo Village Resort that deceased was accused of wilful damage of a property, a Motor Vehicle owned by Kokopo Village Resort. The three accused in company with the other two known policemen. They attended to the complaint at Raim Village where deceased was waiting for them. Upon arrival at the Raim Village the deceased was identified by the villagers and tied his hands with his own belt at his back and took him to the road where he was assaulted by the defendant/applicant Robert Peni Gigi in the presence of the two defendants/applicants Andrew Nasala and Nathan Matia and other two known policeman plus Village onlookers, some participated in the assault on the deceased. The deceased was later taken into custody at Kokopo Police Station, after their visit to Nangananga Village. However, at the Kokopo Police Station cell the deceased's health condition deteriorated, due to serious wounds inflicted to his body and head and was taken to Vunapope Hospital. The deceased's health conditions deteriorated further and he passed away on 28th October 2012.
    
33. In this matter the Police Task Force Unit personnel were involved and are being accused of committing a serious offence of wilful murder in the course of performing their constitutionally mandated duty. This allegation is very serious. Whilst the defence counsel very strongly voices the defendant/applicant's constitutional plea on presumption of innocence until proven guilty through due process of the law, this is the issue that the trial court will determine. This is not a trial, but bail application by the defendants/applicants for the Court to ascertain whether the applicants/defendants have satisfied the grounds and the requirements under s.9 (1) (a) to (g) of the Bail Act 1977, that they should not be held in custody.
    

CONCLUSION

34. The Court having considered the Bail application by the defendant/applicants each and severally charged with wilful murder under s. 299 of the Criminal Code Act. The bail application is made pursuant to s. 42 (6) of the Constitution and ss. 4, 6 & 9 of the Bail Act 1977. However, the main consideration and the special feature about this case is that the applicants/defendants are alleged to have gone to the village of the deceased at Raim Village, and both hands were tied with his belt to his back and took him to the road and was assaulted in the watchful eyes of members of the police team and the Villagers. The deceased was badly assaulted and taken to Kokopo Police Station where he was further assaulted and put in the cell without being formally charged.
    
35. The deceased was held in police cell until his health conditions deteriorated and was brought to Vunapope Hospital for medical assistance but could not recover from his serious injuries sustained from the physical assault executed by the accused and members of the Police Task Force Team and some village onlookers at Raim Village. The deceased could not recover from serious wounds sustained to his body and head injuries and died after 7 days on 28th October 2012 at Vunapope Hospital.
    
36. The Detective Senior Constable Stanley Japele echoed great caution in Court exercising its discretionary power on bail application, which this type of group involved in committing wilful murder charge, is prevalent in this province. And the defendants'/applicants' early release on bail is likely to trigger further community instability and possible retaliation whilst the situation is still tense, and this will greatly have adverse effect on the Police Investigation team completing their investigation process and further arrest on those who were involved, but still at large since 21st October 2012..
    
37. The Court having made the fore going deliberations in considering the applicants'/defendants' bail application, hereby in exercising its discretionary power refused to grant bail to the defendants/applicants bail application. The three defendants/applicants be remanded under custody at Kerevat Corrective Institution.
    

The Court Orders accordingly.

________________________________________________________________
Public Prosecutors Office: Lawyer for the State
Public Solicitors Office: Lawyer for the Defendants