N6757

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 542 OF 2016

MAKIS LALAI
Applicant

V

THE STATE
Respondent

Kimbe: Miviri AJ
2017	: 21st April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application –Whether in interest of justice to refuse bail –– Bail refused in interest of justice.

Counsel:

A. Bray, for the State
B. Popeu, for the Defendant
		      
 			RULING ON BAIL APPLICATION

21st April, 2017 

1.      MIVIRI AJ: Makis Lalai of Kabaibus, West Yangoru, East Sepik Province you are applying for bail whilst remanded at Lakiemata Corrective Institution where you are on a charge on Information dated the 17th June 2016 that on the 4th of June 2016 at Buvussi Section 9 Block1268 you unlawfully killed Gedion Rovon.

2.    Your affidavit in support filed attaches as annexure “A” the information laid by Police informant Aloysius Baruku particulars of the charge I have set out above contrary to Section 302 of the Criminal Code Act.

3.    At the back of the information are facts to the charge that state that you were at Buvussi Section 9 Block 1268 on Saturday 4th June 2016 at about 6:30 to 7:00pm. You were drunk and were shouting whilst walking along the main road when the deceased and group of boys were also drinking at Matana Mamae’s block. Glen Teliki sent Jesrael Winuan to get you off the road as you were drunk and he feared that you might be hit by a vehicle. You were led off the road by Jesrael Winuan and as he did to the side where the others were, you accused him for pulling you hard and you started to argue and then got into a fight with him. You were stopped and escorted away but some moments later you returned armed with a Kumurere tree branch and stated, ‘Yu Tasol ya”, hitting Gedion Rovon on the head and he fell to the ground unconscious. He was carried to the side of the highway and eventually to his house where he spent the night with his condition getting worse. He was taken to Buvussi Health Centre the next morning and later referred to Kimbe General Hospital where in the early hours of Tuesday morning he died.

4.     You filed this application since the 6th December 2016 applying for bail under Section 42 (6) of the Constitution and Section 6 of the Bail Act. 

5.    Section 42 (6) of the Constitution states that where one is arrested or detained for an offence one is entitled to bail at all times to conviction and acquittal. That is along the criminal process of justice you are entitled to bail.

6.    Section 6 of the Bail Act basically allows for an applicant to ask for bail after being arrested or detained at any stage of the criminal process. That this section allows for me to consider the application and grant or refuse bail in accordance with the terms of Section 9 of the Bail Act. Section 9 is the yardstick to measure whether you are entitled or not to bail any one of the grounds under that section will determine.

7.    You were a student doing grade 9 at Poinini Catholic Agricultural Technical High School and you are a good student in 9c and you have been identified and assured as such by Mr John Robin the principal there by letter dated 20th July 2016 that he has attached to your affidavit as annexure “B”.

8.    Your nominated two guarantors are, Manuel Kinger who is area leader of the PNG Revival Church at Buvussi, who is prepared to pledge K500 as guarantor as surety to pledge his guarantee for you out on bail. The second is Aron Pranis who is a village court magistrate, Bugal village court area Mosa Local Level Government, Kimbe, West New Britain. He also has pledged K500 as surety as guarantor that both he and the other say that in the event of bail being granted, you will be resident at Section 4 Block number 1266 Mosa with your family.

9.   Bail applications made with affidavits of guarantors is not enough, physical presence in court is a must for the guarantor so that the court is acquainted with him or her as it is him or her who will ensure the continued appearance of the defendant applicant until the matter is settled in law. It is also important that the matter is on record of the court of that fact. Justice Batari has gone even further to ensure by imposing fines upon guarantors who fail to appear and ensure appearance of defendants. That is why it is important for guarantors to appear on record in court.

10.   Section 9 (e) of the Bail Act requires that safety of the defendant be guaranteed whilst he is on bail. This is especially important in your case as manslaughter is alleged against you. You are alleged to have killed Gedion Rovon. And there is no evidence or material before me to state that all is well and that you will be safe when released back into the community at Buvussi Block where you and the deceased are resident. It is a serious concern to the court that there is no further escalation of the criminal matter from the defendant into the community. It must be guaranteed that there will be no retaliation over the death of Gedion Rovon when you are released back into the community there.  The court will not be doing its duty if it were to send you to further harm or cause bodily injury or even death on such a very sensitive matter as the killing of another as is the case here. You are neighbours and known to each other resident at the same area, that is why the deceased and others took pains to ensure that you were safe and not hit by a vehicle as you were on the road drunk.  

11.   There will not be any risk taken without assurance and proper basis and material to warrant your release out on bail. The court must be satisfied that your release by the court to bail at section 9 Buvussi just across from the main Bialla Kimbe road where the deceased and family are resident is not incentive to further escalation of the crime alleged. Aloysius Baruku first Constable with Criminal investigation Branch Kimbe has filed his affidavit dated the 20th April 2017 deposing that “saw firsthand the deceased and the suspects block and found out that they are just neighbours which are only separated by the main Kimbe Bialla highway. …With that I strongly believe that his bail application be considered on reasons that if they can prove to court his safety when he is out on bail because I fear there’s possibility of retaliation if he goes back to Buvussi to their block”

12.    Your guarantors both do not provide this evidence or people from the side of the deceased. Bail is a right to you but must consider your safety as well which is an extension of your right including the community and all other law abiding citizens of Buvussi and Kimbe.

13.   The offence is an offence where section 9 (1) (i) (ii) are involved and it is compounded without the assurance of your safety if released. One of your guarantors is a village court magistrate there no doubt he would have the necessary evidence of any involvement from his angle to solve this matter at the community level to ensure peace is maintained there. His evidence does not extend in this manner. 

14.    I am not satisfied that you will be safe or that your safety is guaranteed if you are granted bail as I do not have any material before me to that effect and accordingly I refuse the application and that you be remanded.

(a)	Application refused 
(b)	Defendant remanded

Orders Accordingly,

___________________________________________________________
Public Solicitor:      Lawyer for the Applicant
Public Prosecutor:  Lawyer for the State