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State v Lakau [2017] PGNC 405; N7495 (26 July 2017)

N7495

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 667 OF 2017

THE STATE

-V-

YALI LAKAU

Lae: Pitpit J,
2017: 21^st, 25^th & 26^th July

CRIMINAL LAW- Practice and Procedure- Bail Application – Following committal for trial – Wilful Murder

Cases Cited:

In re Fred Keating [1983] PNGLR 133

Counsel:

Mr S. Toggo, for the Applicant
Ms P. Matana, for the Respondent

26^th July, 2017

1. PITPIT, J: This is an application for bail by the Applicant Yali Lakau who has been charged with the offence of Wilful Murder pursuant to section 299 (1) of the Criminal Code. He had been in custody since his arrest on 27^th February 2016 till today 26^th July 2017, a period of some 2 years and five months. His application is based on Section 42 (6) of the Constitution, Sections 6 and 4 of the Bail Act. This would have brought the period that he had been in custody to has been remanded in custody for the death of one Erick Mu on the early hours of Friday 27^th February 2015 at Mioks Lodge, in Lae, Morobe Province.
   
2. The Applicant was said to have been with the deceased on the 26^th day of February 2016, driving around, drinking beer and playing pokies until night when they went to the Mioks Lodge at Fairy Wren Street, Chinatown, Lae. At the lodge, he had gone into the bar area and had demanded some cash money from the bar girl to be given to him. The bar girl had refused to give him cash as requested and he had then assaulted the bar girl.
   
3. His mother who was then observing saw what the Applicant was doing and had intervened and ordered the Applicant to go out of the bar area.
   
4. The Applicant became frustrated, angry and started punching his mother.
   
5. The deceased saw what the Applicant did in punching his mother so he decided to step in and stop the Applicant from punching his mother. The Applicant then turned on the deceased and punched him and both struggled to the floor.
   
6. Whilst the deceased was still lying on the floor, it was alleged, that the Applicant had then pulled out his knife and stabbed him on his right side.
   
7. The deceased bled heavily from the injury he had sustained and was rushed to the Angau Memorial Hospital but unfortunately died upon arrival, from heavy loss of blood.
   
8. The Applicant had sought to rely upon the following; His Notice of Motion dated 10^th of July 2017, supported by his Affidavit dated the same date; Affidavit by his lawyer, Sosthen Togo dated 20^th July; Affidavit by the Investigating Officer Chief Sergeant Bilgilam dated 17^th July 2017; Affidavit by a Grace Lakau dated 25^th July 2017; Affidavit by Simon Benguma dated 10^th July 2017 and an Affidavit by McQuinn Douglas dated 10^th July 2017.
   
9. The Applicant’s application is being moved according to paragraph one of the Notice of Motion pursuant to s.42 (6) of the Constitution, s. (4) and (6) of the Bail Act.
   

Section 42 (6) of the Constitution reads:

A person arrested or detained for an offence (other than treason or wilful murder as define by 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 require.

Section 6 of the Bail Act provides as follows:

(1) An application for bail maybe made to a Court at any time after a person has been arrested or detained or at any stage of a proceeding.

(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made

(3) Subject to section 4 the Court shall grant or refuse bail in accordance with section 9.

Section 4 of the Bail Act provides- Bail only by National or Supreme Court in certain cases.

A person charged with Wilful Murder, Murder or an offence punishable by death shall not be granted bail except by the National or Supreme Court.

Section 9 of the Bail Act states as follows:

(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 the reasonable grounds as to one or more of the following considerations;

• (a) that the person in custody is unlikely to appear at his trial if granted bail; or
• (b) that the offence with which the person has been charged was committed whilst the person was on bail; or
• (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 or possessing a firearm, imitation firearm, other offensive weapon or explosive’

or

(d) that the person is likely to commit an indictable offence if he is not in custody; or
(e) It is necessary for the person’s own protection for him to be in custody; or
(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings or
(g) ...............

10. I have hereto, set out the relevant parts of the law in some detail so that one can be able to follow and appreciate the context and the circumstances that the right to bail arises and the powers therebe to refuse or grant bail to a person seeking bail.
11. With respect to the present application let me first make a couple of observations.
12. First, I note that the Applicant is basing his application on section 42(6) of the Constitution.
13. This in my view, is wrong in that 42 (6) of the Constitution has clearly and plainly expressed that the right under section 42(6) does not apply automatically so to speak, to treason and wilful murder.
14. In my considered opinion bail with respect to treason and wilful murder is not a constitutional right as it would be regarded in the case of other offences.
15. The right to bail in the case of a person charged with wilful murder is based in the National and Supreme Courts by virtue of section 4 of the Bail Act so a person charged with wilful murder has to based his or her application for bail under section 4 of the Bail Act and not under section 42 (6) of the Constitution.
16. In my view also, to assist the Court in its deliberation on the question of bail, on whether it should exercise its discretion to grant or refuse bail the considerations as set out under section 9 and all other considerations including that of interests of justice under section 42 (6) of the Constitution and section 3 of the Bail Act applies.
17. The grounds for the Applicant seeking bail maybe summarised as 1. Health or medical; 2. Family Business; and 3. Family welfare. With respect to these there are numerous cases now that have clearly expressed that these matters are not exceptional circumstances justifying bail. Yausase –v- The State [2011]PGSC 15; Juale –v- The State [1997] PGNC 71; Potape –v- The Independent State of Papua New Guinea [2015] PGSC 43; Koeba –v- The State [2010] PGNC 69, just to name a few have all state and these have been restated, adopted and followed in so many cases that have come before the court.
18. I have considered these grounds raised but I must say that I find very little in terms of exceptional circumstances.
19. In the present case, the State through its counsel Ms Matana had informed the Court that the State would object to bail on the grounds that a number of grounds or consideration under section 9 exists. She did not detailed the exact grounds or considerations that exist in this case.
20. However from the statement of facts annexed to the Applicant’s Affidavit, the Court had noted that there were allegations of:

Section 9 (1)(c) (i) of serious assault

(ii) threats of violence to another person-although in this case
actual violence was allegedly been used when the applicant
had punched the deceased to the ground. And further that
whilst the deceased was lying on the floor, the applicant had
pulled out his knife and stabbed the deceased on his right
side and,
(iii)the use of offensive weapon namely a knife is also
another ground under section 9 (1)(c) that exists.

21. The Court also noted the possibility of a threat to the Applicant’s own protection. This however was somewhat minimized due to evidence of substantial amount of money paid by the father’s and mother’s tribes as per the Affidavit of the deceased’s wife – Grace Lakau- dated 25^th of July 2017.
    
22. According to Grace Lakau, a total of K158,000 in cash and 175 pigs and garden food.
    
23. The Court also noted the payment of 52 pigs and K10,000 by the Wambil clan to JTokon clan on the 14^th of December 2016.
    
24. A further, consideration that exists in this case is the consideration under section 9(1)(f) of the Bail Act – that if the person or (Applicant is release) he is likely to interfere with witnesses or the persons who instituted the proceedings. This ground in my view in this case is more critical because of the peculiar circumstances in this case. From annexure ‘B’ of the Applicant’s affidavit I note that the scene of this offence was at the Mioks Lodge which I am of the impression that this would be one of the business premises of the Applicant and his family. If this is the case, then there is a real possibility that if released on bail, Applicant is expected to spend most of his time at this place and there is a strong possibility that he could very well interfere with the State witnesses.
    
25. From the statement of facts, annexure ‘B’, I note that the witnesses are likely to be the employees of the Lodge and mostly family members of the Applicant.
    
26. In my view, to release the Applicant knowing the risks of possible interference with witnesses but most seriously is the greater risk of the public perception, of corruption and bribes which in my view would seriously undermine and tarnish the impartiality and the integrity of the Criminal Justice System.
    
27. That should the Applicant be found not guilty and acquitted when he had been all along, I believe that the Public and the relative of the deceased would have reservations and alot of doubts over the competence, the impartiality and the integrity of the criminal justice system.
    
28. In my considered opinion, I believe that it would not be in the best interests of Justice for the Court to release the Applicant.
    
29. Public perception is vitally important and cannot be underestimated. If the Applicant is to be released knowing the existence of those dangers or adverse implication – than I would be failing my duty to protect and guard the interests of justice. It is better to be free from any adverse influences or perception that justice was compromised.
    
30. For this reason and together with the other grounds which I have found to exist, I have decided to refuse the Application by the Applicant.

__________________________________________________________________________________
S. Toggo: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State