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Liboro v State [2017] PGNC 271; N6938 (6 October 2017)

N6938

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 714 OF 2017

BYNETTE LIBORO
Applicant

V

THE STATE
Respondent

Kimbe: Miviri AJ

2017 : 6^th October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application – Bail Act S4, 6 - S42 (6) Constitution - wilful murder–bail not of right - State objections - S 9 (1) (a) (c) (i) (ii) Bail Act - Bail Refused.

Cases:
The State v Kongo [1996] N1544
The State v Pokai Edward Laget (2017) N6728
The State v Lester [2001] N2044
State v Nimagi [2004] SC741
The State v Loncia Ewam & Stephanie Kauken (2017) N6728

Counsel:

A. Bray, for the State
F. Kua, for the Defendant

RULING ON BAIL APPLICATION

09^th October, 2017

1. MIVIRI AJ: This is the ruling on an application for bail pursuant to Section 3, 4 and 6 of the Bail Act and Section 42 (6) of the Constitution by the applicant charged with wilful murder. The former is the general purpose section and not operative and the latter two are the operative clauses and really are the bases upon which the application is founded on.
   

Short facts

2. On 30^th July 2017 the accused and others were drinking with the deceased. They went to purchase more drinks and then went to drop off deceased at Dami Research Station. Along the way one of the accused accomplices argued with the deceased whilst another chased one Brian Rusu who escaped. Sometime later the accused and others brought the deceased to Buluma Police Barracks claiming that he was attacked at Banaule by unknown persons. From there he was taken to Kimbe General Hospital where he was pronounced dead. The accused has been charged with Wilful Murder pursuant to Section 299 of the Criminal Code.
   

Law

3. She is not entitled as of right to bail under section 4 of the Bail Act. Only this court and the Supreme Court can grant bail and they do by reference to Section 9 of the Bail Act. Section 9 (1) (a) relates to guarantee for the reappearance of the applicant from bail. That is she is not a flight risk and can be easily located at a place at will and confirmed. In this regard also guarantors are required to ensure as a further guarantee and these are persons of standing, influence, and repute in the Community. It means in practical terms persons of substance who can in the event that an applicant does not appear or abscond from bail; this is the link between the applicant and the law to bring him in to answer to the matter pending in court. An old hunting dog whose teeth is no more cannot be taken out on a hunt because there will be no meat at the end of the hunt. Similarly a relative or an old public official for instance a councillor who has since retired no longer in the office cannot be any use as a guarantor when he has only a name and no substance he will not be an effective guarantor in a very serious charge of wilful murder be it an adult accused or otherwise: Kongo v The State [1996] N1544.
   
4. In this regard leaders in the community must be verified as leaders in that community and not taken on face value or by their word alone especially in very serious case such as the present of wilful murder or any other for the same. In my view it extends to the place by section and allotment number or block number or street including location at employment whether private or government so as to ensure that law enforcement such as police are not unnecessarily burdened with bench warrant execution: Lester v The State [2001] N2044.
   
5. It must also be settled at the outset that youthfulness is no longer a relevant consideration in serious violent offences: Nimagi v State [2004] SC741. In the same way it will not be a consideration in an application for bail. All are equal in the eyes of the law and the process of bail like any process of law does not make any distinction between old, young, disabled, able, male or female. Age will be a consideration with all other facts before the court but not and cannot be the sole determining factor in any given case including a bail application as here where the applicant is charged with wilful murder.
   
6. I am not bound to apply the technical rules of evidence but can act on what material is before me. In so doing I take account of the fact on annexure “C” attached to the affidavit of the applicant stating, “Hence after some time the deceased was brought to Buluma Barracks by the accused and her friends claiming that the deceased was attacked at Banaule by unknown persons. The deceased was taken to Kimbe General Hospital and was pronounced dead on arrival”. This fact alone will be very serious against the applicant. And would if viewed in the light of section 9 (1) (c) (i) and (ii) be against the applicant despite what she contends in her application.
   

Evidence in support of application

7. She relies on her own affidavit sworn the 22^nd August 2017 filed the 6^th September 2017 wherein she deposes that she is 17 years old from Buluma village and attaches copy of the information annexure “B & C” that charges her with the wilful murder of Daniel Ponda committed on the 30^th day of July 2017 at Banaule intending to cause his death unlawfully killed him Daniel Ponda, she also attaches a birth certificate from the Valoka Health Centre showing her date of birth as the 9^th April 2000 making her 17 years old. She is one of the persons who bring the deceased to the police barracks Buluma but the others are not charged except her.
   
8. Eliakim Luckie is proposed as a guarantor by the applicant and has filed an affidavit dated the 21^st August 2017 wherein he swears that he is a retired councillor of Buluma resident there and knows the applicant as a good young lady who is law abiding and not believable that she committed this allegation because she is not a habitual criminal. He pledges the sum of K500 as surety should bail be granted. That he will ensure that the applicant resides at their family residence at Buluma Station, Hoskins.
   
9. The second guarantor nominated by the applicant and who has filed an affidavit dated 21^st August 2017 is Heriman Giru a village Leader elder of Buluma village Hoskins who knows the applicant since birth as law abiding a simple juvenile not a threat to the community at large. He pledges the sum of K500 as surety for the bail should it be granted. And deposes the applicant will be resident at the family home at Buluma.
   
10. The applicant’s application is on her own merit demonstrated by her own material and evidence in support and not judged because she will be influenced by other prisoners remanded in custody. An allegation of brutality against police is easy to make but must be reasonable to believe. There is nothing apart from what the applicant asserts it is her word and the interest that she has of coming out on bail without any other material to further that apart. And so is not reasonable to be believed here. Furthermore her guarantors both swear that they know her very well since her childhood yet both cannot with precision give the section allotment number or the block number where the applicant and family have lived since. Let alone they both themselves as to where they are resident in similar fashion so that whenever there is breach we know where to front up to be able to locate her through them both. A general location is not as serious as the charge that the applicant is facing.
    
11. I am not satisfied that the requirements of Section 9 (1) (a) of the Bail Act is reasonably met by the applicant to guarantee her appearance or return to court from bail for the reasons that I have set out above. Evidence in surety to ensure that the applicant was at a particular location is insufficient and not credible to justify the invoking of the discretion of the court in favour of the applicant.
    

Analysis of evidence and Law

12. I am not satisfied reasonably that Section 9 (1) (a) (c) (i) (ii) of the Bail Act has been made out for the exercise of discretion in favour of the applicant. The material she has placed in support has not satisfied me that bail should be granted because the guarantors are not themselves do not have fixed locations specific where they themselves including the applicant are located and will be found. Wilful Murder is one of the most serious offences known to the law carrying the death penalty and is not a light matter as in shop lifting of a packet of biscuit. Therefore proper material supporting must be filed to ensure that the court’s discretion is invoked on the basis of substantive material to reflect the gravity of the matter. As with remanded persons it is not sure but guaranteed the location of the applicant whilst on bail and that there are persons within means and substance who can be reached as sure as those in custody to bring forth the defendant applicant when his matter is called up in court. The analogy is Philip Vaki charged at the Nadzab airport with the half a million Kina robbery, grievous bodily harm of two security guards and the murder of one who was guaranteed reappearance by his brother Police Deputy Commissioner Operations Geoffrey Vaki: Loncia Ewam & Stephanie Kauken v The State ( 2017)N6728 ; Pokai Edward Laget v.The State (2017) N6729.
    
13. The pledge of K 500 as guarantors or the applicants own pledge of a K1000 becomes insufficient and insignificant without locating or pining down the guarantors to a specific location as a reference point at Buluma by section and allotment or block number should the applicant go missing particularly in the light of the gravity of the offence. It is an allegation but a very serious one and should be demonstrated on the applicants part that she is not taking the liberty of bail to run away from it but to be there reachable whatever maybe the outcome of the criminal process, she is genuinely available as sure as she is in custody to see out the matter to the end. That unfortunately in law has not been demonstrated to my satisfaction reasonably by the applicant: Anabtawi, Re Bail Application [1980] PNGLR 195.
    
14. The materials that he has placed before the court is by law and the exercise of discretion in granting is by law according to demonstrated credible material in support of the application for bail. As it is the material pleading to invoke the discretion of the court are insufficient not reasonable to sway the exercise of that discretion in his favour. Accordingly I refuse the application.
    
15. Application refused.
    

Orders Accordingly,
__________________________________________________________________

Public Prosecutor: Lawyer for the State

Felix Kua Lawyers : Lawyer for the Defendant