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National Court of Papua New Guinea |
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
2014:18th July
CRIMINAL PRACTICE- Practice and Procedure – Review 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 –Review 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 review bail application by defendant/applicant made under ss. 4 & 6 of Bail Act and s. 42(6) of the Constitution -– Consideration of conditions under s. 9 of Bail Act – Defence plea changing circumstances to review defendant/applicants bail application under ss. 4, 6 &9 (1) of Bail Act – Considered potential risk for defendant/applicants safety to be remandedat Kerevat Corrective Institution – Prosecution did not object to bail due to changing exceptional circumstances – Considered changing circumstance as exceptional circumstance by default on risk factors in respect to their personal life and lack of safety segregation facilities – Considered risk factors raise extra ordinary extravagant reason warranting grant of bail to defendant/applicants during review bail application - Defendant/Applicants bail application be granted.
Cases Cited:
Nil
Counsel:
Mr Lukara Rangan, for the State
Mr Gomara Gorua, for the defendant/applicants
RULING ON BAIL REVIEW APPLICATION
18th July, 2014
CHARGE
2. The Applicants were each and severally charged with wilfully and unlawfully murder of another person namely; Mr Tigat Mago, "a national male" on Sunday 21stOctober 2012 at Ravat village, Raluana LLG, Kokopo District, East New Britain Province, thereby contravening section 299 of the Criminal Code Act as amended.
FACTS
3. The brief facts surrounding the review bail application by the defendant/applicants now before the Court is that; this Court refused bail application on 16th July 2014, against the defendant/applicants and they were committed to be remanded at Kerevat Corrective Institution. However, defendant/applicants could not be allowed to be kept in remand at Kerevat Corrective Institution due to their safety being at risk as highlighted by Chief Superintendent Simon Sobaim, Commanding Officers affidavit of 17th July 2014, due to no separate segregation facilities at Kerevat Corrective Institution to separate the risky remandees/prisoners from the general prison population at the main compound. Hence, this application for bail reviews on behalf of the three defendant/applicants.
LAW
4. The defendant/applicants are entitled to bail after being formally charged with wilful murder. The learned counsel Mr. Gorua filed the application for bail review on behalf of the defendant/applicants with supporting affidavits pursuant to s. 42 (6) and 155 (4) 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.
155. THE NATIONAL JUDICIAL SYSTEM.
(1) The National Judicial System consists of–
(a) the Supreme Court; and
(b) the National Court; and
(c) such other courts as are established under Section 172 (establishment of other courts).
(2) ...
(a) ...
(b) ...
(c)...
(3) ...
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. (Emphasis is mine)
(5) ...
(6) ...
5. Relevant sections of the Bail Act 1977 refer to as ss. 4, 6 & 9 and the said provisions are referred to hereunder read as:
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. (Emphasis is mine)
ISSUE
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
6. The applicants/defendants are entitled to bail under s. 42 (6) of the Constitution as of right, except the charge with wilful murder and treason. However, Bailing 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 Bailing Authority. Whilst the applicants/defendants have guaranteed right to bail under s. 42 (6) of the Constitution, the applicant/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. This is the case in this case now before the Court.
7. The defendants/applicants bail application for review is supported by four independent affidavits plus additional affidavits by each defendant/applicants. They are:
8. However, the application for bail review on behalf of the defendant/applicants is largely due to the changing circumstance of defendant/applicants safety and risky life threatening environment considerations revealed at the main remand compound at Kerevat Corrections Institute, if on remand. This raises the great potentiality of eminent physical attack on the three defendants/applicants is very high, if they were to be kept together with other remandees/prisoners at the main compound at the Kerevat Corrective Institution. The risk factors on three defendants/applicants that affect their safety is confirmed by the response from the Chief Superintendent Simon Sobaim - Commander Officer who deposed in his affidavit that the defendants/applicants pose a high risk for their safety and that he was not going to provide separate segregation facilities for them because there is no separate segregation facilities at Kerevat Corrective Institute. The application for bail review is supported by the above affidavits, but in particular, the affidavit of Chief Superintendent Simon Sobaim – Commanding Officer of Kerevat Corrective Institution, who stated in no uncertain terms said:
"I am aware that defendant/applicants were recently denied bail by the national Court and a warrant was issued for them to be remanded at Kerevat Correctional Institute. The purpose of this affidavit is basically to inform and bring to the Court's attention that there is no segregation facilities at the Kerevat Correctional Institute. That is to say, all Prisoner's and Remandees are remanded or locked up together in the same compound. We do not have a Compound or a Building that houses for instance Police Officers (Disciplinary Persons) or persons of High Standing to be remanded separately. Such facilities are only available in other Institutions around the country such as Bomana and Baisu prison Corrective Institutions. This is very important because persons such as Police officers who are remanded at any correctional Institute must be remanded and housed separately from all prisoners or remandees. Police Officers are the persons behind capturing of law breakers which lead to prosecution and on successful prosecution then convicted remanded at the Correctional Institute. In the event a Prisoner escapes, Police Officers are heavily involved with the Correctional Service Officers for the capture of an escapee. I am aware of instances of intimidation, harassment and assaults in the Prisons. Police Officers if remanded together with all other Remandees and Prisoners and remandees will be at risk of been intimidated, harassed and assaulted by the prisoners and remandees. It is for this reason that they be remanded separately from the rest of the remandees and prisoners population. Whilst we are tasked amongst others with the general responsibilities of keeping control and looking after the remandees and prisoners, as the Commanding Officer, I together with my Officers cannot guarantee total safety and security. We always try and as much as possible maintain safety and well-being of all remandees and prisoners but there are instances of intimidation, harassments and assaults (even death as a result) in the Prison amongst the prisoners and remandees. I am concerned that if defendant/applicants are remanded together with all the Remandees and prisoners there may be security issues concerning their safety." unquote
9. The Commanding Officer of the Kerevat Corrective Institution has come out very clear in no uncertain terms, that in so far as the safety of the three defendants/applicants is concern, he cannot guarantee nor is he able to accord them the separate segregation facilities at Kerevat Corrective Institution unlike Bomana and Baisu Corrective Institutions. The Provincial Police Commander Mr John Wagambie (Jnr) also deposes in his affidavit and supported the three defendants/applicants safety issue is of grave concern; given the fact that the defendants/applicants have dealt with remandees and prisoners who have been put through the due process of court proceedings and are either convicted or on remand at Kerevat Corrective Institute, this poses a serious safety risk for them to be on remand. This issue is not the problem for the Court but the Government. The Court remands those in custody who are refused bail on the merit of their case. To bend that legal position by default, is an unfortunate thing to do and makes the court laughable. But court has a duty to respond to special circumstances of the defendants, so is the case now before me. The defendants/applicants also express grave fear of their life being attacked, if placed on remand at Kerevat Corrective Institution by those remandees and prisoners who were convicted by Court earlier.
10. This grave concern is echoed by the Provincial Police Commander, and supported by one of the volunteer Guarantors, if in the event that the bail is not granted in favour of the defendants/applicants. The bail review application is supported by two known State witnesses namely; Ms Nerry Warkuvo, a former Village Councillor of Ravat Ward and Mr Allan Minikula, a Villager from Ravat Village, who claim that they were interviewed by the informant in this case, however, both of them categorically denied the fact that there was any threats issued by the defendants/applicants against them since the offence was alleged to have been committed by the three defendants/applicants since 21st October 2012 to this date. Therefore, the informant in this case sounding very strongly against the defendants/applicants bail application that they posed a potential threat to the State witnesses, is unfounded and that the allegation is over statement of potential threat to State witnesses by informant, when in fact there is no threat issued or intimidation attempt made at all to them by the defendant/applicants as principle State witnesses.
11. The State Prosecutor Mr Rangan though strongly opposes the bail application initially, but now having to learn of the latest revelation of changing circumstance of the defendant/applicants potential safety risk concern, is an issue that cannot be under estimated as clearly stated by the legal custodian of remandees and prisoners, Chief Superintendent Simon Sobaim – Commanding Officer of Kerevat Corrective Institution. The State Prosecutor Mr. Rangan formally concedes to the defendants/applicants bail application review, and did not oppose the bail application and submit that strict bail conditions be considered and attached as well as their nominated three guarantors.
12. The State Prosecutor has conceded by default, not because of legal justifiable considerations, but due to lack of appropriate physical segregation infrastructure that provide separate facilities for special type remandees and or prisoners, who are ordered by Court to be remanded and or sentenced to serve their term of imprisonment at Kerevat Corrective Institution, but whose life may be subject to serious potential threats to their life and safety. Whilst this situation is unacceptable, however, the Institutional early initial structural design and planning stage has failed to take a holistic approach to accommodate different range of class of remandees and prisoner population safety and risk issues at the said Kerevat Corrective Institution, unlike what the Government through Department of Correctional Institution Service has done to Bomana and Baisu Corrective Institutions.
13. The segregation facilities are needed to be extended to other Corrective Institution nationwide, to cater for this type of remandees or prisoners whose life may be threatened and, can be accommodated in the segregation design facilities near the main compound area, but not mix them with the other general remandees and prison population at the main compound. The other Corrective Institutions nationwide similar to Kerevat Corrective Institution lack segregation facilities and are likely to attract criticism from general prison population and public that treatments received by Police personnel on bail application is more favourable then general public and appear to send an unfortunate impression that one law for Police personnel and one law for the general public when it comes to Bail application. This kind of outcome, as it happens in this case, is uncalled for except by default and certainly challenge the Department of Corrective Institution as implementing agent to progress this agenda on segregation facilities which ought to be provided in all gazetted Corrective Institutions in the country.
14. Otherwise, such practice as in this case, indirectly compromises the use of Court's discretional power, when considering the seriousness of the charge as wilful murder and other pertinent considerations stipulated under s. 9 (1) of the Bail Act, loose it's real meaning and appropriate utility by the Court. However, the Court in this case is mindful of the fact, which Chief Superintendent and Goal Commander Simon Sobaim's advice on the defendants'/applicants' safety could not be guaranteed must not be given a deafening silence and response by the Court as prevention is better than cure and consider bail application on its own merit. Hence, application for bail review by the defendants/applicants due to changing exceptional circumstances is a justifiable reason for the defendants/applicants and they cannot be held on remand at Kerevat Corrective Institution due to lack of segregation facilities.
CONCLUSION
15. The Court considers the review bail application on behalf of the defendant/applicant's charges of wilful murder under s. 299 of the Criminal Code Act. The review bail application is made pursuant to s. 42 (6) of the Constitution and ss. 4, 6 & 9 of the Bail Act 1977.
16. The Detective Senior Constable Stanley Japele, echoed great caution in Court exercising its discretionary power on bail application, as these type of people, in particular police officers, involved in committing wilful murder charge, is prevalence in this province. The defendants'/applicant's 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 Police Investigation team completing their investigation process and further arrest on those who were involved, but still at large since 21st October 2012, some 2 years ago.
17. The Court having perused the four independent affidavits provided by defence counsel in support of the application for bail review, the court is satisfied that changing exceptional circumstance has created extra ordinary circumstances that warrant the granting of the bail in favour of the defendants/applicants application for bail. The court has considered the safety and the potential serious risk consequences involved in remanding the defendants/applicants with the general remandees and prisoner population at the main compound at Kerevat Corrective Institution is justified. This is the very serious consideration that has outweighed the grave and serious nature of the defendants/applicants charge on wilful murder and number of possible breaches of conditions stipulated under s. 9 (1) of Bail Act.
18. The defendants/applicants first bail application was refused because of those considerations, but now their bail application on review has been considered exceptional due to changing circumstances in respect to their safety and potential risks on remand that they are now eligible to bail. I am convinced that the defendants/applicants safety and risk considerations now, are indeed an exceptional circumstance that favours defendants'/applicants' bail review application, though the informant opposes the bail application at the early stages of the police investigation process, is still in progress and hope to be completed soon. The strict bail conditions imposed with three guarantors' will provide some comfort and guarantee that police investigation should continue without any direct or indirect interference by the defendants/applicants or their agents as the case may be. The onus is on the defendants/applicants to observe strict bail conditions imposed with their nominated respective guarantor.
26. The Court having made the foregoing deliberation is satisfied and grants bail review application to the defendants/applicants accordingly. The three defendants/applicants are granted bail in the sum of K1000.00 each with strict bail conditions attached. The Court also ordered that the three nominated guarantors pledge K500.00 cash surety with clear strict conditions attached, as well.
27. The Court Orders accordingly.
______________________________________________________________
Namani & Associates Lawyers: Lawyer for the Applicants/Defendants
Public Prosecutors Office: Lawyer for the State
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URL: http://www.paclii.org/pg/cases/PGNC/2014/299.html