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Huasi v State [2016] PGNC 385; N6637 (27 September 2016)

N6637

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No.378 OF 2016

IN THE MATTER OF AN APPLICATION FOR BAIL PURSUANT TO SECTIONS 4 &6 OF THE BAIL ACT (CH.NO.340) AND SECTION 42 (6) OF THE CONSTITUTION.

BETWEEN :

RITCHIE HUASI

Applicant

AND:

THE STATE

Respondent

Kokopo: Lenalia, J.
2016: 22^nd& 27^thSeptember

PRACTICE & PROCEDURE – Application for Bail – Applicant waits committal proceedings for two serious charges one for wilful murder and the other for arson. Grounds for application that applicant is a student doing Grade 10 this year.

PRACTICE & PROCEDURE – Application for bail made pursuant to Sections 4, 6 and 9 of the Bail Act – Grant of bail discretion pursuant to s.6 of the Bail Act and s.42 (6) of the Constitution – Consideration affecting decision on bail.

PRACTICE & PROCEDURE – Respondent objection to grant of bail to the applicant – Community leaders expression of concern if the applicant is released on bail – Applicant is known to involve himself in taking of illicit drugs – Consideration on whether to grant or refuse bail.

Cases cited:

Re Fred Keating [1983] PNGLR 133
Re HeramnKaglDiawo [1980] PNGLR 148
The State v Beko Job Paul [1986] PNGLR 976

Counsel:

P. Yange, for the Applicant
L. J. Rangan, for the Respondent

27^th September, 2016

1. LENALIA J: The applicant on this application is charged with two serious charges. One for wilful murder and the other for arson against ss.299, 435 of the Criminal Code. This application was heard on Wednesday last week. I have taken time to consider the application against the backdrop setting of the circumstances leading to the commission of these two serious charges. The following is the ruling on this application.
   
2. For the crime of wilful murder, the applicant has three other co-accused and according to Mr. Yange, those three are still remanded in custody either at Kerevat C. S or at Rabaul police station holding cells. On the charge of arson, only the applicant is charged. The two crimes were committed in Rabaul town on 14^th August this year.
   
3. In case of the applicant, he says in his affidavit which the court has read together with that of his mother where they say that the applicant is a juvenile and a student at Vunabosco Agro-Technical Secondary School and he should be released on bail. I have also read the letter by the Principal, Fr. Charles Casper (see document “A”) where he says, the applicant is a student in that school in 2016.
   
4. I heard counsels’ submission on this application. Mr. Yange argued that, the victim of the murder case is a relative of the applicant and in fact even the owner of the vehicle that was torched is the uncle of the applicant and there would not be any problem as defined under s.9 (1) (e) of the Bail Act. Counsel further submitted that, for the interest of justice the applicant should be released on bail.
   
5. Mr. Rangan strongly objected to this application on the grounds that, the applicant has not been committed and if released, he might take steps to interfere with police witnesses. Counsel submitted that, the applicant is charged together with a number of co-offenders and their case is going through committal process. He raised the issue that the applicant is no longer a juvenile and the application should be refused.
   

Application of Law

6. The law developed from s.42 (6) of the Constitution and s.4 (1) and s.6 (1) of the Bail Act is that an applicant is entitled to bail at any time during the criminal process from arrest to committal, and in the course of the trial if the trial had commenced up until he or she is convicted or acquitted: Re Heramn Kagl Diawo [1980] PNGLR 148, and Re Fred Keating [1983] PNGLR 133. The applicant has rightly applied to this Court because he is charged with wilful murder. Only the National and Supreme Courts can hear applications for cases wich are punishable by death as s.4 (1) of the Bail Act says.
   
7. It is established law that, where one or more of the considerations in s.9 (1) of the Bail Act has been proven, bail should be refused unless an applicant shows cause why his detention in custody is not justified: Re Fred Keating (supra).
   
8. Section 9 (1) of the Act stipulates that when a bail authority is considering an application for bail, all factors under that section ought to be considered. It has often been stated that grant of bail is a discretionary power of the court. This means that, the court can either grant or refuse bail depending on circumstances of each application.
   
9. The onus is on the State to show why bail should not be granted to an applicant after consideration of s.9 (1) of the Bail Act: Re Herman Kagl Diawo[1980] PNGLR 148, Re Fred Keating v The State (supra), see also The State v Beko Job Paul [1986] PNGLR 97.
   
10. The lawyer for the Respondent objected to this application on the grounds under s.9 (1) (a), (c) (i) (ii) (iii) of the Bail Act. In particular, counsel raised strong objection on the basis that, the crime of wilful murder consisted of serious assault, s.9 (c) (i) and it involved threat of violence to other persons as defined in (ii) and (d) that if released, the applicant will involve himself in consumption of alcoholic beverages with other youths around the Kaivuna residential area.
    
11. Two guarantors file affidavits. George Polup says he is a former policeman and has stepped in volunteer to be a guarantor for the applicant. He is a close relative of the applicant as the applicant addresses him as grandfather. The other proposed guarantor, Pastor Elijah Michael of the South Sea Evangelical Church says he knows the applicant well who lives in Kaivuna residential area. They live together on the same residential area in Rabaul town.
    
12. The court has read the letter of objection addressed to the State Prosecutor office here in Kokopo dated 20^th this month on which Detective Senior Constable Paul Bonio says that he objects to the application on the basis of the following reasons:
    
    • - The applicant is a co-accused to others who are still at large and that during the assault of the deceased, offensive weapons were used and his vehicle was torched.
    • - Other four dwelling houses at the water-front were burnt to ashes after the incident.
    • - A couple of houses were also burnt along the Malaguna road near Hamamas hotel.
    • - The situation in town is still tense and there is fear for their lives and property around the area.
    • - The deceased’s relatives came to the Rabaul police station and told police that, they do not wish the relatives of the applicant to visit them.
    • - Police is still investigating the cases as some witnesses have not been contacted because they fear for their safety and there is fear that if the applicant is released, he will interfere with State witnesses.
    • - That relatives of the victim recently stoned the police station cell demanding that, the suspects should be released so that, they will deal with them.
      
13. There is an earlier letter dated 13^th September 2014 signed by two persons David Pasi and Janet Pasi of Mangidu Isi Loan. They raise a number of objections for this application. They include:
    
    • (a) The manner of killing on this case is viewed as horrific.
    • (b) Accessories of the crime are still at large.
    • (c) The property damaged in the arson case is in access of K100, 000.00.
    • (d) It is premature for this application as other suspects are still on the run.
    • (e) Police investigation is still continuing.
    • (f) Applicant/s is very likely to interfere, harass, intimidate or prosecution witness and their associates.
    • (g) The safety both in public or community is not guaranteed.
    • (h) Bail be refused and let them remain in custody until the court decides otherwise.
      
14. Paragraph 2 of that letter says that, there are other accessories apart from the four accused that have been arrested and charged by police. The four accused and their accessories are known in their community for production and sale of illicit spirits and marijuana.
    

Consideration whether to Grant of Refuse Bail

15. I have considered counsels’ submission on this application. A number of issues arise from the foregoing discussion. First as sated above, investigations have not been completed. Secondly, there are other accomplices to be apprehended. Then there is fear that if this applicant is released on bail, he may interfere with prosecution witnesses.
    
16. The power of this Court to grant or refuse bail comes from s.42 (6) of the Constitution. This section states that, a person arrested and is detained for an offence is entitled to bail at any time from the time he is arrested to the time he is tried and either convicted or is acquitted. The later portion of that provision says “unless the interests of justice otherwise requires.”
    
17. The case of Re Fred Keating [1983] PNGLR 133 establishes that, an application for bail by a person charged with wilful murder is to be determined pursuant to s.9 (1) of the Bail Act. As held in the above case, such considerations only relate to each factor in the above section without reference to the interest of justice factor. The Supreme Court consisting of three men bench said, grant or refusal of bail under the above section in cases of wilful murder or treason is discretionary depending on circumstances of each case.
18. The court raised the issue of the applicant being a juvenile. Mr. Rangan, counsel appearing for the Respondent submitted that because, the applicant is charged with the crime of wilful murder, the National Court will deal with his case. The reason, I raised that point is because of evidence from a number of sources, first from the applicant himself, his mother Melia Huasi and Fr. Charles Casper say that the applicant is a student at Vunabosco Agro-Technical Secondary School.
    
19. Obviously, the applicant has missed classes since last month. Despite that, the Information Sheets “B1) & “B2” say records that the applicant is age 17 years old. That is confirmed by her mother supporting affidavits where she says, though she does not have a copy of the clinic book of the applicant, she recalls that the applicant was born on 22^nd January 1999 at Yangoru-Sausia Health Centre, East Sepik Province.
    
20. Pursuant to s.2 of the Juvenile Justice Act 2014 (No.11 of 2014) a juvenile in absence of evidence to the contrary is a person who appears to be older than 10 years but less than 18 years. I accept the fact that the applicant is a juvenile. However, he is charged with indictable offences and certainly as submitted by the Respondent’s counsel, he will be dealt with by the National Court.
    
21. There is no information before this court on the status of the juvenile section of the Kerevat correctional institution. Under s.95 of the Juvenile Justice Act, the Minister for Correctional Services may by notice in the National Gazette approve a juvenile section in a correctional institution, a juvenile institution on its own or a remand centre. Subsection (3) of s.95 of the Act, prohibits detention of juveniles in institutions not approved by the Minster responsible.
    
22. Considering the fact that, there is no evidence to show how long it will take to investigate and arrest other accomplices, I consider the fact that, three other co-accused have already been charged for the crime of wilful murder. I am of the view that, releasing of the applicant on bail will not affect police investigations on further accomplices. I distinguish this application from the applicants in Joe Ngotngot & 3 Others v The State (9.5.2017) CR. (APP) Nos. 146, 147, 148 and 149 of 2016where the Court refused the application for bail by four policemen charged with wilful murder.
    
23. The applicants in the above case were adult serving members of PNG Constabulary where the court said, at page 10 of the judgment that, there was no evidence from the applicants to substantiate their claims that because they were in custody, those detainees in custody could do any harm to any of them while being remanded in custody because they were serving members of the Police Force and they had been involved in maintaining law and order by arresting offenders. The court refused their application for bail.
    
24. On the instant application, the applicant is a juvenile. Certainly, if he is committed to stand trial, his case will be dealt with by the National Court. It is clear from evidence presented on this application that there are more than one consideration under s.9 (1) of the Bail Act present however, this does not mean that bail should automatically be refused. This court has discretion to refuse or grant bail in any application considering all circumstances attached to each application: The State v Beko Job Paul [1986] PNGLR 97
    
25. For the above reasons, this Court is satisfied that the applicant have discharged the onus placed on him to establish why he should be granted bail. The court has read through the affidavits of the two proposed guarantors. The applicant is charged with a charge of wilful murder and for arson. I grant bail to the applicant in the following terms:
    
    1. The applicant is granted bail of K2, 000.00 cash payable forthwith.
       
    2. The court nominates the two guarantors Mr. George Polup and Pastor Elijah Michael of the South Sea Evangelical Church to Guarantors for the applicant. They shall each pledge the State sums of K500.00 each.
       
    3. The applicant shall report to the CID office where the investigation into the killing is being carried out whenever he is required by police.
       
    4. He shall report to the District Court as to when he is required to attend the committal processes until he is either committed or discharged in the event that the Committal Court finds that there is insufficient evidence to commit him for trial in the National Court.
       
    5. He must then comply with any orders of the Committal Court.
       
    6. He shall not leave this Province unless he seeks leave of this Court to vary the bail conditions.
       
    7. He shall not interfere with any State witnesses, nor shall he speak to any of them while he is undergoing the investigation processes.
       
    8. Shall not leave East New Britain until the Investigating Officers consider in- charge of his case considers otherwise.
       
    9. The court orders that, the orders that the applicant shall be in the custody of his parents until the committal processes are completed and all investigations are over.
       
26. Bail is granted accordingly.
    

________________________________________________________________
Islands Legal Services: Lawyer for Applicants
The Public Prosecutor: Lawyer for the Respondent.