N5935

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CA (App) N0.52 of 2015

IN THE MATTER OF AN APPLICATION FOR BAIL

PEPONO KOKONAS
Applicant

AND

THE STATE
Respondent

Porgera: Kawi-iu, AJ
2015: 9, 10 March

BAIL– Application for Bail – accused a juvenile – dangers of keeping juvenile in detention with adult detainees - consideration of – highly likelihood of adult prisoners exerting bad influence on applicant – applicant's rights to further his education considered – bail granted with conditions - s42(6) Constitution, sections 4 and 6 Bail Act.

Cases Cited:

Bernard Juale v The State (1999) N1887
Fred Keating v The State [1983] PNGLR 133
Re Herman Kagl Diawo [1980] PNGLR 148

Counsel:

Robert Belli, for the Applicant
Daniel Mark, for the Respondent

RULING
10 March, 2015

1.	KAWI-IU, AJ: This is a ruling on an application for bail made by the applicant, Pepono Kokonas pursuant to section 42(6) of the Constitution, sections 4 and 6 of the Bail Act.

2.	It is alleged that the accused on the 21st July 2014 at Kityalam village, Mulitaka in Lagaip Porgera, Enga Province, was armed with a homemade shot gun who unlawfully shot dead the deceased Tau Tare in front of his house. The deceased body was taken to Wabag General Hospital for post mortem examination and later returned to the relatives. Accused was on the run and later apprehended by the police where he was then charged. 

3.	The following documents were filed for purpose of this application:

i)	Bail Application filed on 20th February 2015
ii)	Affidavit in support filed on 20th February 2015.
iii)	Guarantor's Affidavit of Nathanial Waki filed on 20th February 2015.
iv)	Guarantor's Affidavit of Steven Nepao filed on 20th February 2015.

4.	The applicant says that he is 14 years old and was in Grade 3 at Sangurap Primary School when he was apprehended and detained at Wabag Police Station. He says that he was originally from Kopres village in Mulitaka and had been residing with his elder brother at Sopas village. 

5.	He further says that he had been wrongly implicated of this offence by his tribal enemies. Because the enemies could not succeed in apprehending his older relatives, he became the scapegoat. I was apprehended when I was in Wabag attending Enga Show in July 2014 and locked in the police cell.

6.	His main grounds for seeking bail are:

i)	He was attending Primary School at Sangurap at time of his arrest. He is concern about his education.
ii)	In custody no evidence of separate juvenile cell/facilities.
iii)	He had been in detention for the past 8 months at Baisu Correctional Institution, and had recently been under threat from other detainees and from warders since the escape of Pogera and Wabag remandees.

7. Mr. Bellie, counsel for the applicant submits that because of the youthfulness of the applicant his continued detention will be detrimental because of the bad influence exerted on him from more mature detainees. 

8. The applicant has two guarantors Natanial Waki and Steven Nepao. Mr. Waki is a Seventh Day Adventist Pastor, 46 years old and comes from Kopres village in Mulitaka, married with 3 children. Applicant is his younger brother. Their parents have died and he is the only bread winner in the family. He is aware of the arrest and detention of the applicant in July 2014. He is also aware that at the time of applicant's apprehension, he was a Grade 3 student of Sangurap Primary School. He further states that the arresting officer had the age of the applicant as 17 years, however the correct age of the applicant is 14 years. He is aware of the obligation and responsibilities of a guarantor by the applicant's lawyer, and undertakes to make sure the applicant meets all the bail conditions should he be granted bail. He pledges K500 as surety.

9. Mr. Nepao is a Public Servant employed by Enga Provincial Government as maintenance supervisor, 68 years old, married with 8 children and more than 20 grand children. He is a well respected person in the community. Applicant is his in-law. He has been made aware of the duties and responsibilities of a guarantor by the applicant's lawyer and undertakes to ensure the applicant comply with bail conditions should he be granted bail. 

9. Mr. Belie, for the applicant submits that granting of bail on a charge of willful murder is not readily granted except on a special consideration under section 4 of the Bail Act. If an applicant is charged with willful murder or treason, he or she can still be granted bail at the discretion of the Judge hearing the application. However, in those cases the presumption in favour of granting bail does not apply and it is more difficult to obtain bail (Fred Keating v The State [1983] PNGLR 133). Counsel for the applicant referred to a case he appeared for juvenile applicants charged with willful murder who were granted bail Bobby Seki, Timothy Seki v The State (2013) N5358. They were allowed bail because of their age. Thus he urged the court to exercise its power to release the applicant on bail.

10. The State submits that the offence of willful murder attracts provision of section 9 of the Bail Act. Section 9(1) (c) (i), (ii) and (iii) of the Bail Act: the alleged acts constituting the offence that the applicant has been charged with consist of serious assaults, threats of violence and possession of firearms.

 11. However in view of the fact that the applicant is a juvenile it does not wish to oppose the granting of bail. As the guarantors were not present he asked if they avail themselves when the court hand its ruling on the application. 

12. For applicants charged with willful murder, bail is not readily available as of right. The onus is on the applicant to show by appropriate evidence why his continued detention in custody is not justified: see Fred Keating & Re Kou Dua [1984] PNGLR 22. Exceptional circumstances must be shown before bail can be granted and the question is always one of degree which must be considered in the light of the particular circumstances of a particular case: Bernard Juale v The State (1999) N1887, Re Boran Correctional Institution; Bernard Uriap v The State (2009) N3822.

13. It was also held in Fred Keating (supra) in willful murder cases, only circumstances set out in section 9 (1) apply and not others, i.e. without reference to the interest of justice. There the Supreme Court said:

"In cases of willful murder, only those consideration s set out in s. 9 (1) apply and no others because the "interest of justice" in s.3 of this Act and because of s.42 (6) of the Constitution does not apply to willful murder and treason cases."

14. In Fred Keating it was also held that the existence of any one or more of the circumstances under s. 9 of the Bail Act does not necessarily mean that bail must automatically or readily be refused. This is because a bail authority has the discretion and power to decide whether to grant or refuse bail.

15. The applicant is charged with the crime of willful murder and therefore has no automatic right to seek bail. Applicant's right to bail is to invoke s.4 of the Act for the court to exercise its discretionary power to grant bail. This right is however conditional, only when the applicant can satisfy the court that s. 9 of the Act does not apply to his circumstances or that there are exceptional grounds shown that his continued detention is not justified. 

16. The ground upon which the applicant has advanced, are that he was a 14 year old Grade three student at Sangurap Primary School, since the escape of Pogera and Wabag remandees from Baisu jail he now feel threaten from other detainees and warders alike. In the course of submission lawyer for the applicant raised one of the going concern in many prisons of the lack of facilities to segregate juveniles from others. On this issue respondent had nothing to say.

17. I have been amply guided in the decision of David J. in the case of Bobby Seki v The State (supra) who had dealt with similar grounds. In that case the issue is whether being a juvenile per se is an exceptional circumstance. Alternatively, are there special considerations for juvenile offenders in a bail application?

18. On the issue whether juvenile per se is an exceptional circumstance, the court after reviewing the Juvenile Court Act says at (32): 

"According to Section 21 (5) of the Juvenile Courts Act, where a juvenile is granted bail, the bail authority may require, as a condition of bail, that the juvenile be placed in the care of a parent or responsible person who agrees to accept him. The phrase "bail authority" is defined under Section 21 (1) of the Juvenile Courts Act and it "means an authority empowered to grant bail in accordance with the Bail Act (Chapter 340)". It would seem and it has been the case over the years that juvenile offenders are subject to the same principles governing the grant or refusal of bail as adults. It follows that being a juvenile per se is not an exceptional circumstance. Juvenile offenders like adults must show an exceptional circumstance why his continued detention is not justified. The Juvenile Courts Act does not set out any special considerations for juvenile offenders in a bail application."

19. I accept that Pepono Kokonas is about 14 years old and a juvenile for purposes of the Juvenile Courts Act.

20. It has been held that very young age is a special mitigating factor for purposes of sentencing: Manu Kovi v The State (2005) SC789. This case may also illustrate that the principal in Manu Kovi would treat a child of a very young age example 9 years as an exceptional circumstances. In Bobby Seki, Timothy Seki v The State (supra) the court acknowledge that the third accused Newman Ale was a 9 year old and was released by the Wabag National Court to the custody of his parents soon after his arrest. The court says that a very young age of 9 years of Newman Ale as an exceptional circumstances. The court was satisfied that Newman Ale has shown cause why he should remain in the custody and care of his parents and not be placed in a juvenile remand centre or its equivalent at a correctional institution or a place approved by the Director of the Juvenile Courts Service for that purpose.

21. The present applicant Pepono Kokonas is age 14 years and is not of very young age. 

22. Under the second ground, the applicant states that he has been detained together with adult prisoners at Baisu Correction Service in Mt Hagen for 8 months now. He would be influenced by adult detainees. 

23. Sub-sections (18) and (19) of Section 37 of the Constitution are relevant. They state:

"(18) Accused persons shall be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons. 

(19) Persons under voting age who are in custody in connexion with an offence or alleged offence shall be separated from other persons in custody and be accorded treatment appropriate to their age."

24. The State or respondent was not able to refute this fact thus the requirements to segregate juvenile detainees from convicted ones must be given prominence in consideration for bail. Failure to heed to this requirement may constitute a breach of a right accorded by the constitution. 

25. From materials before me, I am satisfied that Pepono Kokonas is held in custody with adult prisoners and he is under voting age. He has been in custody for a period of 8 months since his arrest. No evidence to the contrary was produced by the Respondent. His detention in circumstances described is contrary to Section 37 (18) and (19) of the Constitution. Do these constitutional breaches amount to exceptional circumstances? What is envisaged by these provisions is that it is not in the best interests of young or juvenile offenders to be placed with adult offenders whether convicted prisoners or not considering the dangers of exposure to hard core criminals. In considering this particular ground, I apply the principle propounded by the decisions in Bernard Juale and Bernard Uriap that what amounts to an exceptional circumstance must always be considered in the light of the peculiar circumstances of a particular case and is a question of degree. I am satisfied that these constitutional breaches amount to exceptional circumstances. Peponon Kokonas has shown cause why his continued detention at the Baisu Correction Service is not justified. 

26. One further consideration which in my view is the right to decent education. He says he was a primary school student and had not been in school since his detention. He says his detention was manufactured by enemy tribesmen who were not able to catch his senior members of his tribe and had taken advantage of his presence at the show ground, hence his detention. Respondent has not offered any opposition to this assertion.

27. As to the suitability of the proposed guarantors, the proposed guarantors are unsuitable because they are both relatives of the applicant. This accords with the principle propounded in Charlie Posanau & David Koyama. However, this does not, in my view, affect the wide discretion vested in the Court by Section 21 (5) of the Act where a juvenile is granted bail to place the juvenile in the care of a parent or responsible person who agrees to accept him by way of a condition of bail. I think these are two different things.

28. I am therefore satisfied that the applicant's right may have been infringed in that he had been remanded with adults in custody at Baisu pursuant to s. 37 (18) (19) of the Constitution. 

Notwithstanding the unsuitability of the proposed guarantors, and having considered s. 21 (5) of the Juvenile Court Act that this Court has discretion to consider bail to give effect to the intent of the provision.

29. I will therefore allow bail with the following conditions: 

1. Applicant shall pay cash bail of K1, 000.00.

2. Until further order, the applicants shall be in the custody and care of the two guarantors.

3. The applicants shall reside with Pastor Nathanial Waki .

4. The applicants shall not interfere with any State witness in any way, manner or form whilst on bail.

5. The applicants shall keep the peace and be of good behavior in the community whilst on bail.

6. Applicant to report to the National Court Registry at Wabag between the hours of 9:00 am and 3:00 pm every government fortnight Friday until his case is dealt with according to law.

7. The applicants shall not leave Enga Province whilst on bail except with the leave of the Court.

8. The applicant, shall be released from custody upon production of official receipts issued by the Department of Finance or its agent in Wabag or Pogera evidencing payment of bail monies.

____________________________________________________
Public Solicitor: Lawyer for the Applicants
Public Prosecutor: Lawyer for the Respondent