N6367
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 94 OF 2016

BETWEEN

PETER TALPA
Applicant

AND

               THE STATE 
                Respondent

Kundiawa: Liosi AJ
2016: 10th   June

CRIMINAL LAW – Practice and Procedure – Bail Application – Applicant charged with 1 count of wilful murder and 1 count of attempted murder – Onus of proof – State to establish existence of one or more considerations under section 9 Bail Act – Onus shifts to applicant to show why continued detention is not justified – Medical conditions – exceptional circumstance warranting exercise of discretion. 

Cases cited:
Fred Keating v. The State [1983] PNGLR 133
Re: Kou Dua [1948] PNGLR 22
State v. Theo Yausause SC 1112
Vela Wari Vele v. The State (2004) N2701

Counsel: 
Mr. J Biki, for the Applicant 
Mr. K Umpake, for the State   

Ruling on Bail Application

10th June, 2016

1.    LIOSI AJ:  This is an application for bail by the applicant made pursuant to section 42(6) of the Constitution and Sections 4 and 6 of the Bail Act. The applicant has been charged with one count of wilful murder of Wii Gunua pursuant to Section 299 of the Criminal Code on the 22nd of January 2016 and one count of attempted murder of Kune Esta Koa contrary to Section 304 of the Criminal Code. The application is made pending committal proceedings at the Kundiawa District Court.

Brief allegations of facts 

2.       The summary of facts prepared by Police alleges the following facts. The defendant Peter Talpa is employed as the District affairs officer in charge of Gumine district. He drives the district office vehicle registration number IAC 341 now changed to EAF 597. That in 2015 the vehicle encountered some mechanical problems. He accused Kune Esta Koa and his family for making sorcery on the vehicle. He came and forced the people to get water and wash him to cast the sorcery out. After that he continued to accuse Kune Esther Koa of sorcery. On Friday 22nd January 2016, Kune Esta Koa went for a dance at Wara Simbu tropical club. He went through the gate and was about to enter the dance floor when the defendant  came with his brothers, grabbed hold of Kune’s shirt collar and asked him “husat tokim yu long kam na yu  kam”. Sanguma. “(who told you to come and you came here, sorcerer, get out)” They then dragged him out. While dragging him out, Baule Talpa, the younger brother of Peter Talpa the accused, came with an iron bar and hit him on his head and left leg, inflicting on him injuries.  They dragged him out and ordered him to run. They then chased him but he ran into the dark and escaped down the river and came on to the road. 

3.     Whilst sitting on the road, Peter Talpa drove the vehicle into him and bumped him so he got up and started running again. Peter Talpa and his brothers got out of the vehicle and chased him but he escaped into the dark. He hid until he stopped a passing police vehicle and reported the matter. On Monday 25th January 2016, he returned to the police station with his people to follow up on his complaint. The officer in charge of criminal investigation division then advised him to come back with his witnesses on 4th February 2016.
Whilst arranging to go and see the officer in charge of the criminal investigation division. Peter Talpa arranged with Task Force Kundiawa headed by senior constable Michael Maba and went to Kel to deal with the matter of false accusations of sorcery and assault that was reported to the officer in charge of criminal investigation division. He instructed the police to arrest the three accused sorcerers, Kune Esta Koa, Abba Kapia and another but they refused to get into the police vehicle. They argued that they had already reported a matter for attempted murder and will not jump into the police vehicle until Thursday 4th February 2016. Upon hearing this, the police refused to make arrest and told everybody to go on 4th February 2016. They then left. 

4.    A heated argument erupted after the Police left. Peter Talpa then ordered his brothers to go and fight. They removed their shirts threw them on the ground then ran to their village and got guns. They were not able to threaten anybody as the guns did not fire. When the guns did not work, the people chased them to get the guns but they ran into the mountains and hid. 

5.   The deceased who was then a leader went up to the mountain and was calling them to come back to solve the matter. Whilst he was calling out to them, Peter Talpa’s brother Mole Peter came from the back and swung the axe hitting the deceased Wii Gunua on the back of the head above the ear causing him to fall down the cliff. Mole Paul and Gaima Talpa followed him down, and broke his neck killing him. He was left there until the relatives found his body the next day and took him to the morgue. The suspects then went into hiding until they were arrested and charged by the Police.

Grounds for application  

6.  The applicant states in paragraph 7 (1) of the affidavit that he has a responsible job in the Gumine District Administration which requires his presence as the District Affairs officer. He says he may be suspended or removed by the provincial administration. In paragraphs 7 (ii) of the applicant’s affidavit, he says he is an asthmatic patient and needs to attend to his doctors for medical attention. He needs to be out of the police cells which is a confined area for his health. If further detained his conditions will deteriorate and fears for his life. Pursuant to the applicant’s assertion of his medical condition, he has annexed a medical report of a Dr. Moses Aiwa who is employed with Sir Joseph Nombri memorial Kundiawa hospital. The report is dated 7th March 2016. 

7.   The report states that the applicant is a known chronic asthma patient who has been seen several times in their consultation clinic for regular interviews and follow ups in assessing his medical condition to adjust frequency of his doses depending on his chest occultation findings. The medical report states that asthma is normally caused by allergens like dust, odour, clothing etc.... Upon contact with the allergens the shortness of breath is triggered causing severe breathing problems. When this happens it becomes a medical emergency requiring immediate medical attention and can be fatal. In concluding he strongly recommended bail. 

8.   The applicant has also proposed two guarantors in support of his application.  They are Samuel Peter and Ludy Bola. 

9.    Samuel Peter in his affidavit sworn on 23rd March 2016 and filed on even date deposes that he is the paymaster of Gumine District Administration. He knows the accused very well as they work for the Gumine District Services. He is aware that the applicant has been charged with a very serious offence. He is also aware of the consequences of his undertaking to be his guarantor and is prepared to be a guarantor. If the court grants him bail he is willing to pledge a sum of K250.00 as cash surety towards his bail. 

10.   Ludy Bola deposed in her affidavit sworn on 23rd day of March 2016 and filed on even date, that she is an office secretary and a co-worker to the accused. She knows the accused very well as he is the District affairs officer attached to the Gumine District Services. She is a well known female officer in Gumine District Administration. She is aware of the seriousness of the offence the applicant has been charged with and the consequences of her undertaking as a guarantor and is prepared to be the guarantor. She is willing to pledge a sum of K250.00 as cash surety towards his bail. 

11.   Counsel for the Applicant submits the applicant has denied committing the offences and will contest the charge. Defence counsel further submits that the applicant is a District Affairs officer with Gumine District Administration and will either get suspended or terminated if he does not go on bail and get back to work. 

Objections by the State 

12.   Although section 9(1) (c) (i) (ii) (e) are satisfied, the state is only objecting to bail under the grounds of section 9 (1) (e) dealing with the applicant’s own protection to remain in custody. Objections have not been raised on the other applicable grounds. The state in this case submitted that the initial application for bail was listed on the 15th April 2016 but was not pursued by his lawyer due to security concerns for the applicant. The applicant now moves his application. He submits that the concern of the arresting officer is still the concern for the applicant’s safety and protection until the situation is conductive to bail. He further submits that the affidavit the applicant relies on relating to his safety was sworn and filed on 23rd March 2016 almost a month before security concerns were raised by his counsel Mr. Yawip on the 15th April 2016.

Issues 

13.    From the evidence and the submission of both counsels, the applicant has shown that some of the considerations under section 9(1) of the Bail Act are present in his case. But even if they are present, the second issue is, whether the applicant has shown any exceptional case for the court to exercise it’s discretion to grant bail to the applicant.   

Reasons for Decision 

14.    I have heard both counsels’ submissions for and against the application. As alluded to earlier on though the applicant has been charged with 1 count of wilful murder and 1 count of attempted murder. The state has not filed any affidavit in response objecting to bail. I note that the alleged acts constituting the offences of wilful murder and attempted murder both consist of serious assault and a threat of violence. Although, the state has not objected to bail, the court still has a discretion to refuse bail on it’s own volition given that considerations under sections 9(1)(c)(i) and (ii) are present. 

15.   This leads me to the only ground that the state raised and that is relating to the applicant’s safety and protection. There is no evidence before the court as to the state of the situation after the alleged offences. There is no evidence of any customary compensation and there is no evidence of any peace and reconciliation ceremony between the deceased family and relatives. The only evidence and noting that it came from the bar table was this. The state says, the initial bail application was listed for hearing on the 15th April 2016 but was shelved due to security concerns for the applicant.  

16.   The State has not filed any affidavit evidence in support of it’s objection to bail under Section 9(1) (e) of the Act. It however maintains from the bar table that the applicant’s security is still a concern. In the case of Vela Wari Vele v. The State (2004) N2701 Mogish J said “It is not enough for the State to state its belief it is obliged to call or rely on credible evidence to substantiate its belief.” 

17.   I now turn to the second issue. Has the applicant shown an exceptional case that bail be granted to him. The offence of wilful murder is a very serious offence. It is a deliberate act of termination of another person’s life by another. That is why Parliament decided that bail in not readily available to a person charged with this offence. Both the Supreme and National Court’s have a wide discretion to admit an applicant to bail even where one or more considerations under section 9 (1) of the Bail Act are present. The onus is on the applicant to show why his detention in custody is unjustified. Fred Keating v. The State [1983] PNGLR 133- Re: Kou Dua [1984] PNGLR 22. 

18.   Is the medical condition of the Applicant an exceptional circumstance that warrants discretional exercise in his favour? I accept that the asthmatic condition of the applicant is an exceptional ground for bail. Herein the applicant deposed to in his affidavit sworn on 23rd March 2016 and filed on even date that he is an asthmatic patient. The police cell conditions are not good for his health. His medical condition is corroborated by the medical report of Dr. Moses Aiwa and another health extension officer Maxie M. Taul. Dr. Aiwa states that the applicant is a known asthma patient and has been seen several times in their consultation clinic for regular reviews and follow up on his medical condition. He states asthma is caused by allergens like dust, plants, odour and clothing etc. When the body contacts the known allergens, the shortness of breath is triggered. When this happens, it is a medical emergency and immediate medical attention must be sought as it can be fatal. The report has further strongly recommended that the applicant be considered for bail. 

19.   I am satisfied that the applicant has made out an exceptional case on the grounds of his medical condition and I grant bail. 

Terms and conditions of bail

Guarantors 
 
20.  The applicant has proposed two guarantors a Mr. Samuel Peter and a Ludy Bola. Both have pledged a cash surety of K250.00 each. Given the seriousness of the offences with which the applicant has been charged. I am inclined to increase the amount of cash surety to K500.00 each to be paid before the applicant is released on bail. Section 19(6) of the Bail Act requires a bail Authority to inquire into the financial means of the guarantor. In this regard I am of the view that the guarantors should be made aware of the seriousness of their undertakings and responsibility as a guarantor should the applicant fail to turn up. I make this orders and comments noting that there is no evidence of where the guarantors live in proximity to the applicant as well.  

21.  The applicant in his affidavit states that he is able to pay a cash bail of K1, 500.00. There is no evidence before me as to where he will be staying if granted bail. All I note is that he will be staying at Wara Simbu. Consequently the court during the hearing made enquiries as to where exactly the applicant will be staying. Despite answers and explanations. I was still not satisfied. Consequently, although I will grant bail, I will increase the amount of cash bail to K3, 000.00 to ensure attendance and compliance of reporting conditions. The increase in the amount must also reflect the seriousness and the gravity of the charges laid on the applicant. 

22.  The Bail terms and condition I impose are as follows; 

       a. Bail is granted to the applicant in the amount of K3, 000.00
       b. The guarantors Samuel Peter and Ludy Bola are each to pay upfront cash            surety of K500.00 each before the applicant is released.
      c. Whilst on bail the applicant shall reside at Wara Simbu in Kundiawa           Town with his  family. 
      d. He shall not interfere with any witnesses.
      e. He shall report to the Kundiawa National Court Registry every Friday           between the hours of 9 am and 3:30 pm.
      f. He shall attend at every Criminal Call Over until his case is heard. 
      g. He shall keep the peace and be of Good Behaviour.

Orders accordingly, 
_______________________________________________________
Public Solicitor: Lawyers for the Applicant 
Public Prosecutor 	: Lawyers for the Respondent