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Kaupa v State [2016] PGNC 174; N6369 (10 June 2016)

N6369

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 86 OF 2016

BETWEEN:

BONNY KAUPA
Applicant

AND
THE STATE
Respondent

Kundiawa: Liosi, AJ
2016: 10^th June

Cases cited:
Dr. Theo Yausause v. The State (supra) SC 1112
Fred Keating v. The State (1983) PNGLR 133
The State v. Paul Tarccisius Tohian (1990) PNGLR 173.
Triga Kakarabo and Joe Puksy Purari v. The State (2001) N2077
Unreported and Unnumbered Judgment delivered on 1 May 2009 (Lenalia, David & Makail JJ),

Counsels:

Mr. M Yawip, for the Applicant
Mr. K Umpake, for the State

Ruling on Bail Application

10^th June, 2016

1. LIOSI AJ: This is an application for bail by the applicant pursuant to section 6 of the Bail Act after the applicant was charged with one count of attempted murder of one Dick Mick on 21^st October, 2014 at Jiwaka Kona contrary to section 304 (a) of the Criminal Code. The application is made pending committal proceedings.

Brief Allegations of Facts

2. The brief allegations of fact obtained from the Summary of facts are:- On 21^st October 2014 between 9-10 pm, the defendant armed with a bushknife was drinking outside the complainant’s store. He accused the complainant / victim for his change after buying beer saying “Yu culprit, pipia, rubbish, ya kaikai kan asshole, yu ting you wok moni ah? Yu wok boi nating” As a result the victim went outside and punched the applicant. The applicant then stabbed the complainant twice in the side ribs and once on the shoulder. The victim fell to the ground and was taken to the Kundiawa general hospital and was hospitalised. The applicant escaped and was captured on 23^rd October 2014 and was charged and placed in the cell.

Grounds for application

3. In support of the bail application the applicant has sworn and filed an affidavit dated 4^th May 2016 and affidavits of two guarantors. He says he wants to be granted bail on the following grounds.
   
   1. He is a first time offender.
   2. He is married with 11 children and his absence from home is adversely affecting them.
   100. The charges are mere allegations.
   4. Although considerations under section 9 (1) (c) are present the court has discretion to grant bail.
      
4. The applicant has also proposed two guarantors. They are Big Teine and Pastor Waito.
   
5. Big Teine in his affidavit sworn on 28^th February and filed on 14^th March 2016 states that he is a councillor at Yobai village and knows the accused very well. He is aware that the applicant is in custody following attempted murder of Dick Mick. As the charge is serious he needs to go on bail to seek proper legal counsel to defend himself. He undertakes to ensure that his bail conditions are observed and that he is prepared to pledge K250. 00 as surety fee.
   
6. The guarantor Pastor Waito is a pastor. He says he is the applicant’s brother and knows him. The applicant is 26 years old and comes from Bomaikule village, Kerowaghi District, Chimbu. He is aware that the applicant is in custody following attempted murder of the complainant. As an immediate family friend of the applicant, he has known the applicant for a very long time. He also says the charge is serious and he should be granted bail to seek proper legal advise to defend himself. He undertakes to ensure that all bail conditions are observed if he is granted bail and further pledges K250.00 as guarantor’s surety fee.
   
7. His counsel basically adopts the contents of the affidavits as to the proposed grounds of the bail application.

State’s Objection

8. The state submits that the applicant has been charged with a serious offence. The summary of facts suggests that consumption of beer was involved when the victim was stabbed and the charge and allegations involves a serious assault using an offensive weapon. Hence objections is made pursuant to section 9 (1) (c) (i) (ii) and (iii) of the Bail Act, the State further objects pursuant to section 9 (1) (a) that the applicant will be unlikely to appear at his trial if granted bail. He says Yobai village where the applicant comes from has no road access according to the investigations officer. Further the guarantor Pastor Waito says the applicant is 26 years old and comes from Bomaikule village in Kerowaghi District. There is conflicting information as to where the applicant will be residing. If the court is to grant bail then it has to consider an additional K500 – 00 ontop and guarantors to pay extra K500. 00 upfront. The guarantors should also be living in close proximity and not miles away. Big Tine lives at Salt Nomane and Pastor Waito is at Bomaikule village at Kerowaghi. In his further affidavit filed on 26^th April 2016 he says he will stay at backstreet block at the back of Premier Hill. (Document 5) This is at paragraph 4 of the Applicant’s further affidavit.

Issues

9. The issues are whether the applicant has shown that none of the considerations under Section 9(1) of the Bail Act are present in his case. But even if they are present the next issue is whether the applicant has shown an exceptional case for the court to exercise its discretion to grant bail.
   

Reasons for Decision

10. The state argues that the applicant has been charged with a serious offence and that consumption of beer was involved when the victim was stabbed. The state says circumstances under section 9 (1) (c) (i) (ii) and (iii) are present. Further Yobai village where the applicant comes from has no road access according to the investigating officer. Further information relating to the applicant’s age and where he comes from are conflicting. The state is saying that the evidence should not be believed.
    
11. I agree with the state’s claim the alleged offence consists of a serious assault and violence to another person and the consideration under section 9(1) (c) is present.
    
12. In respect of ground one the fact that the applicant is a first time offender is not a ground for consideration. Similar sentiments arise in the claim that he is innocent or that he has denied the allegations. Triga Kakarabo and Joe Puksy Purari v. The State (2001) N2077. Such assertions have been held by the court to be irrelevant in bail applications. The applicant further claim that he has 11 children and his absence is adversely affecting them is also not a good reason. In the case of Dr. Theo Yausause v. The State (supra) the Supreme Court held that losses of employment or business or family suffering are natural consequences of an accused person been remanded in custody and do not amount to exceptional circumstances.
    
13. The Law is that even if anyone or more of the matters prescribed in section 9 (1) is shown to exist, it will not necessarily follow that bail will be refused because the bail authority has the discretion to grant bail. See case of State v. Paul Tarccisius Tohian (1990) PNGLR 173.
    
14. This decision was echoed in the earlier well established principles in Re: Fred Keating v. The State (1983) PNGLR 133 Kidu CJ and Andrew J held that;

“If one of the considerations is present in Section 9 (1) it does not follow that bail must automatically be refused. There is always discretion in the bail authority to grant bail”.

15. Whilst noting all that, I note each particular case is determined on its own merits. I have considered the application and I am inclined to grant bail to the applicant.
    
16. Having said that I make a few passing comments relating to certain aspects of bail applications. These decisions were echoed in various Judgments.
    
17. In relation to exceptional circumstances Her Honour Davani J followed the decision in Malaki Kongo and Joe Akusi in Michael Aia and Michael Maneba, there the applicants were charged with 1 count of wilful murder. Her honour said;
    

“What are these exceptional circumstances? The Applicants have not shown any. The affidavits filed by the Applicants are very brief. They do not depose to matters pertaining to exceptional circumstances, some of which may be that, prolonged detention is adverse to their defence or that their social activities, family welfare, employment or business would be in jeopardy. These are matters that are relevant to the applicants and ought to have been covered but were not.”

18. Secondly guarantors play a significant role in the issue of whether a person is granted bail. A guarantor plays a significant role in ensuring that a person granted bail appears at his or her trial and also complies with the conditions of his or her bail. He is required to make an undertaking to that effect: section 19 (1) of the Bail Act. According to section 19 (2) of the Bail Act, a guarantor will only be required if the bail authority considers that the person granted bail will not appear at his or her trial or will not comply with the conditions of his or her bail. As to whether the proposed guarantors are suitable or not, one only has to look at section 19 of the Bail Act in particular sub-sections (4), (5), and (7) to discern between who is suitable and who is not. The general qualification in sub-section (4) is that for a bail authority to refuse approval of a person to act as a guarantor, it must be satisfied on reasonable grounds that the proposed guarantor will not honour the undertaking required of him under Subsection 1.’ According to sub-section 6, the bail authority must consider the financial means of a proposed guarantor. It is couched in mandatory terms. It is an important factor that a bail authority must take into account when deciding the suitability of a proposed guarantor. A proposed guarantor who only makes an undertaking to pay or pledge a certain amount of money as surety without disclosing his financial means should not be considered at all. Thus, in considering the suitability of a proposed guarantor, regard ought to be had, amongst other relevant matters that may be peculiar to a particular case, to the following :-
    
    1. the guarantor’s financial means: Malaki Kongo & Joe Akusi, Michael Aia & Michael Manebai and Joe Puksy Purari;
    2. the guarantor’s proximity, whether by kinship or place of residence, to the applicant: see Charlie Posanau & David Koyama v. The State, SC APP. Nos. 2 & 3 of 2009, Unreported and Unnumbered Judgment delivered on 1 May 2009 (Lenalia, David & Makail JJ), Malaki Kongo & Joe Akusi , Michael Aia & Michael Maneba, Paul Guant, and Sent Ninji;
    3. the guarantor’s standing in the community, including his character and antecedents: Malaki Kongo & Joe Akus, Michael Aia & Michael Maneba and Joe Puksy Purari.

19. It is my view that counsel need to be more proactive and to properly adhere to requirements of Section 19 of the Bail Act. Obligations imposed on counsel by section 19 of the Act are in mandatory terms and must be complied with.
    
20. Having said that and taking note of those observations and comments, I impose the following bail conditions.
    1. Bail is granted in the sum of K3, 000.00.
    2. Applicant must reside at Backstreet Block at the back of Premier Hill, Kundiawa.
    3. Applicant shall report to the National Court Registry in Kundiawa every Friday between the hours of 9 am and 3 pm.
    4. Applicant shall not interfere with the State witnesses.
    5. Applicant is to keep the peace and be of good behaviour until his trial is heard.
    6. Applicant shall not leave Simbu Province until his matter is heard.
    7. Applicant’s guarantors namely Big Teine and Pastor Waito are to each pay surety of K500.00 cash before the applicant is released.
    8. Applicant is to report to every Criminal Call Over until his case is heard.

____________________________________________________________

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