N6926	
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 709 OF 2017

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

BETWEEN:
KOMSON KULANG DRU
Applicant

AND:

STATE 
Respondent
Kundiawa: Liosi AJ 
                                         2017: 06th & 7th September 

PRACTICE AND PROCEDURE – Application for bail – Bail Act, s.9(1)(c) – wilful murder and participating in a riot – charges of – serious assault – violence used – offensive weapon used – loss of lives – several people injured – substantial damage and destruction to properties – constitutional right to bail – presumption of innocence in favour of bail – right to bail not automatic and readily available to persons arrested or detained on allegation of wilful murder or treason – grounds for bail – welfare of the family – dialogue, peace and reconciliation between the parties in the conflict – overall justice warrant granting of bail – bail granted with conditions.
Case Cited:
Bernard Juale v. The State (1999) N1887
Re Herman Kagl Diawo [1990] PNGLR 148
Re Fred Keating [1983] PNGLR 133 

Counsel: 

M Yawip, for the Accused/ Applicant  
J Kesan, for the State/Respondent

RULING
7th September; 2017:
1.	LIOSI, AJ: This is an application by the applicant Komson Kulang Dru to be admitted to bail pursuant to an application filed on 28th August 2017. The application is supported by the affidavits of the applicant himself filed 28th August and two guarantors Paul Gagesungua and James Kuman. 

2.	The applicant invokes s.42 (6) of the Constitution and sections 4&6 of the Bail Act. 

3.	The application is not opposed by the State as it says in view of the facts giving rise to the charges against the applicant. 

4.	The facts are that the applicant is currently charged by the Police with 2 charges under the Criminal Code. The first relates to 2 counts of wilful murder under s.299 (1) of the code and the second is for participating in a riot under S.65 of the Code. At the time of hearing of the application, the applicant has yet to make his first appearance in respect to the 2 charges before the committal Court in Kundiawa. No doubt the allegations are indeed very serious. 

5.	 It is alleged the offences took place in Kundiawa Simbu Province on Sunday, 30 July 2017. The charges arose from a riot and physical confrontation between various groups supporting rival candidates contesting the Kundiawa/Gembogl Open Electorate in the Simbu Province during the recent 2017 National General Elections. 

Brief facts 

6.	That on Wednesday, the 23rd of August 2017, the defendant now before the court namely Komson Kulang Dru was caught by Police for allegedly inciting a riot in Kundiawa Town. The Defendant is the President of Mt. Wilhelm Local Level Government and a strong supporter of Tobias Kulang an intending candidate for Kundiawa/Gembogl Open Electorate who contested the 2017 National General Elections. 

7.	On Sunday, the 30th of July, 2017 at about 7.00 am, the defendant was seen driving into Kundiawa town in a blue ten seater Toyota land cruiser. He led a convoy of about nine (9) vehicles with several of Kulang supporters, and passed through road blocks set up by security forces involved in National Elections Security Operations. The defendant drove passed and proceeded straight to a road block set up at the opposite of the Bank South Pacific Kundiawa Branch and drove all the way to his place near Dickson's field and started shouting and yelling at the bystanders about the elections of Tobias Kulang.

8.	He stopped his vehicle with others and then led a crowd of several men shouting war cries and returned back towards Mt. Wilhelm Hotel and met the group there that were dropped off at the Police road block. That was where exchange of shots, stones and sticks ensued into Mr. Ignatus Kilage’s place. In no time the situation turned into a riot that lasted for almost whole of Sunday morning till late in the afternoon. During the course of the riot instigated by the defendant and Tobias Kulang, several people were wounded and many more properties were destroyed including four cars and three (3) houses being torched down to ashes. 

9.	Two men were killed instantly during the riot while others were wounded and admitted at the Kundiawa Hospital. One of the deceased was identified as Thomas Meli, 25 years old of Goglme Village and the other deceased was Michael Diniyagl, 42 years from Womatne Village all in Gembogl sub district, Simbu Province. Other vehicles driven by the defendant and others were impounded at the Police Station later while others were burnt to ashes. The supporters of other candidates ran amok and retaliated at the defendant and his convoy of supporters which turned chaotic and unstoppable. The defendant after committing the incident, escaped by foot and sneaked into the bushes between Mt.Wilhelm Hotel and Dickson's field and fled towards Prenorkwa Primary School onto main Okuk Highway. 

10.	He was at large until sighted by Police at Kundiawa General Hospital and taken to Kundiawa Police Station for further questioning. He admitted that he was one of the drivers who drove into Kundiawa Town on Sunday the 30th of July 2017. He said he was only a supporter of Tobias Kulang. After confirming that, he was formally arrested, charged, told of his rights and later placed in the cells at Kundiawa Police Station. 

11.	The applicant’s reason for seeking bail are set out at paragraph 5 of his affidavit. The reasons are broadly categorised as follows; 

1.	Welfare of the family 
2.	Leadership responsibilities 
3.	Restoration of peace and reconciliation 
4.	His co-accused has also been granted bail

12.	Under section 42(6) of the Constitution, a person arrested or detained for an offence is entitled to bail at all times. However, this is not the case where a person is arrested or detained on allegation of wilful murder or treason. It is therefore a constitutional right of every person arrested, charged or detained in relation to an offence under the law to be granted bail unless the justice of the case require otherwise. Section 46(2) states: 

 “(6)      A person arrested or detained for an offence (other than treason or wilful murder as defined in an Act of Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interest of justice otherwise requires.”       	
 
13.	In an application for bail, there is always a strong presumption in favour of an applicant. In Re Herman Kagl Diawo [1980] PNGLR 148, Kapi J (as he then was) said: 

      “The right to bail is a constitutional right s.42(6) and must be given readily unless the interest of justice require otherwise. The Constitution puts the onus on those who oppose bail to show why bail should not be granted. Section 9(1) (of the bail Act) Sets out the considerations upon which the Court may refuse bail.”
 
14.	However, the presumption does not favour a person who has been arrested or detained in connection with the offence of wilful murder or treason. The right to bail is not automatic or readily available to persons arrested or detained on allegations of wilful murder or treason: Bernard Juale v. The State (1999) N1887.

15.	A bail authority must consider s.9 (1) of Bail Act where one or more considerations under s.9(1) is present. Court may refuse bail. Ultimately the power to grant bail is discretionary. 	

16.	The applicant has advanced a number of grounds which I have earlier identified into 4 categories. The important ground in my view would be one relating to Leadership responsibilities. As a leader he is required to play a leadership role in establishing dialogue, peace and reconciliation with the adversaries. I also further note that his co-accused Tobias Kulang has also been released on K3, 000.00 bail.  

17.	Notwithstanding the fact that the allegations are serious and where there is presence of considerations in s.9(1) the Court ultimately can still exercise its discretion to grant bail.  

18.	Section 9(1) (c) of the Bail Act states:- 

         “9.       Bail not to be refused except on certain grounds. 

(1)	   Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:-

(a)	    ………………………………..
(b)	  ………………………………….

(c)	   That the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of – 
(i)	a serious assault; or 
(ii)	a threat of violence to another person; or 
(iii)	having a possession of a firearm, imitation 
firearm, other offensive weapon or explosive; or 
(d)	   …………………………………
(e)	   …………………………………
(f)	   …………………………………
(g)	  …………………………………..
(h)	  …………………………………..
(i)	 ……………………………………
(j)	……………………………………..       

19.	The onus lies with the party opposing bail in all cases except wilful murder and treason cases Herman Kagl Diawo [1980] PNGLR 148. This is based on the constitutional right and presumption of innocence. In wilful murder and treason cases. The onus lies on the applicant, where considerations under s. 9 (1) are present the applicant must show exceptional circumstances. 

20.	I have perused the affidavit material relied upon by the applicant. I note the violence that ensured is election related and I also note that lives have been lost and properties destroyed. I further note the applicant is yet to be committed to stand trial on the charges. Although the allegations are serious, I note the State has not opposed bail. The applicant appears to be a well-known person and a businessmen in Kundiawa town. In the circumstances I am satisfied that there are sufficient reasons given for me to grant bail using my discretion. I therefore grant bail on the following conditions. 

1.	   Bail is granted in the amount of K2, 500.00.
2.	   He shall reside at his residence at Perenokha in Kundiawa.
3.	   He shall not leave Kundiawa without leave of the National Court. 
4.	   He shall take reasonably proactive and constructive steps as a leader to   
  facilitate dialogue, peace and reconciliation between the parties   
  involved in the conflict.  
5.	   He shall attend all hearings of the Committal Court in Kundiawa as    
  scheduled whilst his charges are pending in the said Committal Court. 
6.	   He shall report to the National Court Registry at Kundiawa every  
  Friday between 9.30 am and 3 pm.  
7.	   He shall not interfere with any state witnesses 
8.	   He shall not commit any other offence whilst on bail. 
9.	   The two guarantors are to each pay upfront cash surety of K600.00
10.	 each   
  before he is released. 

Ordered accordingly.
_______________________________________________________________
Public Solicitor: 		Lawyer for the Applicant
Public Prosecutor	: 	Lawyer for the State