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Dokono v State [2018] PGNC 110; N7183 (9 March 2018)

N7183

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 23 of 2018
CR (AP) 24 of 2018
CR (AP) 25 of 2018
CR (AP) 26 of 2018
CR (AP) 27 of 2018

FRANCIS DOKONO

JUNIOR KORE
NOEL SINE
ALEX KAMBE
HENI MEAKORO
Applicants

V

THE STATE
Respondent

Lae: Kaumi AJ

2018: 16, 21, 27 February & 1, 9 March

CRIMINAL LAW – Bail Application-One count of Manslaughter & three counts of Deprivation of Liberty-Safety of applicants in custody and family welfare-Considerations under section 9 (1) present-Onus shifts to Applicant to show sufficient cause why continued detention not justified- Applicants have not established by way of appropriate evidence why the interest of justice was in their favour for a grant of bail-Bail refused.

Facts

Five remanded policemen charged with one count of manslaughter and three counts of Deprivation of Liberty applied for bail. Applicants failed to show sufficient cause why continued detention not justified.

Held:

[1] A decision by the Public Prosecutor not to object to the bail application does not mean the court should as a matter of course grant bail. It is incumbent upon a court considering a grant or refusal of bail to properly consider all the peculiar circumstances of the case before it before arriving at a decision.

[2] A person arrested and charged with an offence is entitled under s.42(6) of the Constitution to bail at any time except for wilful murder and treason but a bail authority still has the discretion to refuse bail “if the interest of justice otherwise requires”: Re Fred Keating [1983] PNGLR 133

[3] The existence of one or more of the circumstances under s.9 of the Bail Act may form the basis to refuse bail but that is not automatic. There is a discretion in a bail authority to grant bail if an applicant for bail is able to show by appropriate evidence that his “continued detention in custody is not justified”: Re Fred Keating (supra)

[4] “I disagree with the theory of policemen in custody face the risk of attack from within the other inmates by the mere fact that they are policemen.” Bernard Juale v State [1997] N1887 Kirriwom. J

[5] “In my view, safety in prison is the applicant’s own figment of imagination that the convenient orchestrated to build a strong case for bail for himself. There is no evidence of his safety at risk in prison, nor is there evidence of his safety at risk outside of prison.” Re Bail Application by Hombi [2010] N4080 Kirriwom. J

[6] “This is one of the very common grounds raised in such applications like this. Courts have not considered family situations as justifying release on bail for some reasons I have given earlier. Responsible people must always have the well-being and interest of the family at heart and put their interest in ahead of their own selfish inclinations, consequences of which will seriously affect them: Re Bail Application by Hombi [2010] N4080 Kirriwom. J

[7] Applicants’ affidavits very brief and did not depose to matters establishing why the interest of justice was in their favour for a grant of bail.

[8] Applicants have not by way of appropriate evidence discharged the onus of establishing that their continued detention was not justified.

[9] Bail refused.

Cases Cited:

Application by Derrick Noah (2010) N4072
Bernard Juale v The State (1999) N1887
Jacky Anton v The State N7158
Kopu Saroa v The State (2018) N7185
Osara v The State [2001] PGNC 149
Philip Maru & Arua Oa [2001] N2045
Re Bail Application by Hombi [2010] N4080
Re Fred Keating [1983] PNGLR 133

Legislation Cited:

Constitution of Papua New Guinea
Criminal Code 1974
Bail Act 1977

Counsel:

Ms. Matana, for the State
Ms. Katurowe, for the Applicants

RULING ON APPLICATION FOR BAIL

9^th March, 2018

1. KAUMI AJ: This was an application for bail made pursuant to section 42 (6) of the Constitution and sections 4 and 6 of the Bail Act (Chapter. 340) by five applicants jointly charged with one count of manslaughter contrary to section 302 of the Criminal Code and three counts of Deprivation of Liberty contrary to section 355 of the Criminal Code. I heard the application earlier and refused it on 9 March 2018. The reasons for my refusal were given in brief orally. Section 16 of the Bail Act requires that I put the reasons for my refusal in writing necessitating due compliance which I now do.

THE RELEVANT LAW

2. In my judgments on applications for bail by applicants charged with wilful murder in Jacky Anton v The State (2018) N7158 which I delivered on 9 March 2018 and Kopu Saroa v The State 2018 (N7185) judgment I delivered on 9 March 2018, I labored to discuss what the relevant principles were with respect to bail in this country and I adopt them and will not repeat them suffice to state Kandakasi. J’s succinct summary of these principles in Osara v The State [2001] PGNC 149 which I respectfully adopt and reproduce:

“A. A person arrested and charged with an offence is entitled under s.42(6) of the Constitution to bail at any time except for wilful murder and treason but a bail authority still has the discretion to refuse bail “if the interest of justice otherwise requires”.

B. The Bail Act (Chp.340) by s.9 sets out the circumstances in which bail may be refused;

C. The existence of one or more of the circumstances under s.9 of the Bail Act may form the basis to refuse bail but that is not automatic. There is a discretion in a bail authority to grant bail if an applicant for bail is able to show by appropriate evidence that he his “continued detention in custody is not justified”.

D. The burden to produce appropriate evidence to form a foundation for a grant of bail is not a difficult and complicated one because by virtue of s.9(2) of the Bail Act the application of the technical rules of evidence are excluded;

E. The list of circumstances under s.9 of the Bail Act is not exhaustive and other factors such as the following may be taken into account before deciding whether or not to grant bail:

a) “The applicant being a habitual criminal;

b) Whether applicant is a trustworthy person and will meet any bail terms that may be imposed;

c) The number of bench warrants outstanding for bail jumpers for the kind of offence the applicant is held in custody for;

d) The cost and expenses the society may be put through in trying to bring the applicant to justice if he breaches his bail terms which may mean delays in a speedy trail which may have the risk of the State loosing vital evidence supporting the charge against the applicant;

e) The expenses and the trouble the society through the Police Force, has been put through to secure the applicant’s arrest and incarceration;

f) Whether the proposed guarantors are serious in their proposal having regard to the amount of money they are able to pay in sureties;

g)Whether the amount of cash bail proposed has any relative correspondence to the offence with which he has been charged; and

h)Whether the applicant would have already served his penalty without a trial by reference to the offence with which he has been charged and the possible date for his trial”.

The Present Case

3. At the outset I note the Public Prosecutor has not objected to the applicants’ bail application. Just as in any other application before a court the applicant must establish on appropriate evidence the reasons for the application and why the court should accede to it and grant orders accordingly. A bail application is no different and the applicant is obligated to make out a case for his application with appropriate evidence and as a normal consequence of things that the court in turn is obligated to properly consider all aspects of this bail application. Conversely to act otherwise is to be deemed or to be accused of acting in a cavalier manner or at the worst to give an appearance of determining the application summarily. In other words just because the Public Prosecutor has chosen in its wisdom not to object to the bail application does not mean the court should as a matter of course grant bail. It is incumbent upon a court considering a grant or refusal of bail to properly consider all the peculiar circumstances of the case before it before arriving at a decision.

4. The Applicants are jointly charged with one count of manslaughter contrary to section 302 of the Criminal Code and three counts of Deprivation of Liberty contrary to section 355 of the Criminal Code and apply for bail pursuant to Section 42 (6) Constitution and section 4 and 6 of the Bail Act and advance two grounds for the grant of bail. The two grounds are firstly, their safety in custody and secondly, the safety of their family.

5. They argue that their safety in custody was in question and their families’ safety outside is also in question and therefore it was their submission that the interest of justice was in their favour for a grant of bail.

6. The Applicants’ applications are supported by their Affidavits in Support sworn on the 19^th February 2018 and filed on the 23^rd February 2018. In their affidavits, the Applicants cover their personal particulars, employment as police officers, their charges, their denial of the charges, the wide media coverage of their case and the threats they received from inmates on the 14^th and 15^th of February 2018. They also filed Supplementary Affidavits in Support on 28 February 2018 in which besides elaborating further on the death threats made against them of the 14^th and 15^th they introduce a new threat to their families that is alleged to have occurred on the 16^th February 2018.

7. The Applicants are all policemen and in their Affidavits in Support state what they say was a disturbing scenario. That given the publicity given to their case by the media members of the public rushed into the courtroom to glance at them at their first mention on the 14^th February 2018. They say their lives were threatened on the 15^th and 16^th February 2018. They made a special plea to the court to consider especially the threats of 16^th February in which inmates threatened them that they would if they had a chance they would kill their families. Further that a few hours after the threats were made there was a prison break-out in which 12 inmates escaped from custody and are on the run.

8. The applicants all deny the charges laid against them and say they will contest them in a trial proper.

9. I will address the first ground of their safety in prison. The applicants (other than their word) have not provided any evidence to the court in any form whatsoever, to confirm these threats. There is no evidence from the Buimo CI officers of the applicants informing them of the threats made against them over three days. CI officers are charged by law with the responsibility of ensuring the safety and well-being of all inmates and have processes in place to facilitate this responsibility. If indeed the applicants were threatened over three days then logically the first stop for their concerns about their safety would be the CI officers on the ground on duty. Once they had registered their complaints that would trigger the normal CI administrative processes to deal with such a complaint. If the applicants had filed their complaints with the CI authority and nothing was done to address them then evidence of this should also have been filed in support of their application. Further to this neither has there been any evidence from any inmate nor did the inmate who they say stand up for them on 16 February 2018. I have certainly not been privy to any such evidence whatsoever and given that the operation of section 9 (2) of the Bail Act makes the burden to produce appropriate evidence to form a foundation for a grant or refusal of bail less onerous on the applicants I am certainly not prepared to act on such assumptions or speculations in the circumstances.

10. In Bernard Juale v State [1997] N1887, the issue of applicant’s safety in CS custody arose since the applicant was a policeman. However, Kiriwom J refused the argument saying:

“If such protection outside is to be offered by Police, that may very well be in order. But I cannot accept that a self –appointed band of tribesman or relatives will do much better job of protecting him than CIS personnel empowered and charged by law to provide this service to those persons committed in their custody. This is why I disagree with the theory of policemen in custody face the risk of attack from within the other inmates by the mere fact that they are policemen.”

11. In re Bail Application by Hombi [2010] N4080 Kirriwom. J said:

“The applicant is not so much concerned about his safety at large, he said he can manage his safety at large. But he is concerned about his safety in prison. ...In my view, safety in prison is the applicant’s own figment of imagination that the convenient orchestrated to build a strong case for bail for himself. There is no evidence of his safety at risk in prison, nor is there evidence of his safety at risk outside of prison.”

12. The National Court has spoken on this issue and I see no reason to deviate and reject this first ground put forth by the applicants.

13. The second ground the applicants raise to show that the interest of justice lies in their favour for the grant of bail is the safety of their families. This ground is made on the strength of an alleged threat made against them by inmates and then a subsequent escape by some inmates. Again here the applicants have not provided any evidence to the court in any form whatsoever, to confirm these threats. There is no evidence from the Buimo CI officers of the applicants informing them of the threats made by inmates against their family on the 16^th February 2018. I also fail to see the connection between this alleged threat to their families made by some inmates and an escape by some inmates a few hours later. What has an alleged threat got to do with an escape? The total prison population of the Buimo Goal is 895 so were the inmates who escaped on the 16^th February 2018 the same ones who issued the threats. I have been made none the wiser by an absence of any such escape by Notices of Escape by the CI administration of Buimo goal. Surely obtaining such information wouldn’t have been too onerous of a task by the applicants given the operation of section 9 (2) of the Bail Act.

14. There is an interesting aspect to this particular ground of alleged threat (against their family on the 16 February 2018) and that is when their affidavits in support were filed on 19 February 2018 there was no mention of it anywhere in it, as a matter of fact their first affidavits were devoid of any mention of it, then in their supplementary affidavit in support filed on 28^th February 2018 it is mentioned. How could the applicants have forgotten or overlooked such an important matter as the safety of family, whatever the reason might be the reason for this omission it was important to have raised it at the earliest opportunity not that it has any bearing on my decision.

15. Again I say with respect to this second ground that given that the operation of section 9 (2) of the Bail Act which makes the burden to produce appropriate evidence to form a foundation for a grant or refusal of bail less onerous on the applicants, they have simply not made out a case for grant of bail in their favour and I certainly not prepared to act on such assumptions or speculations in the circumstances.

16. On this ground regarding the welfare of family of an applicant Kirriwom. J in re Bail Application by Hombi (supra) stated when considering the grounds for family welfare:

“This is one of the very common grounds raised in such applications like this. Courts have not considered family situations as justifying release on bail for some reasons I have given earlier. Responsible people must always have the well-being and interest of the family at heart and put their interest in ahead of their own selfish inclinations, consequences of which will seriously affect them. If he did not have their interest as his number one priority when he by his deliberate act or omission compromised their interest, the Court will not elevate their interest to a higher level on his behalf.”

17. In Philip Maru and Arua Oa [2001] N2045, Kandakasi J said:

“Finally, it is a common claim by all bail application that their family will suffer unless they are released from bail. There is the presumption of innocence on the one hand and on the other hand is a presumption that a legitimate process has been set in motion on some proper legal basis. If an applicant’s family is put to some suffering of some sort by their arrest and detention, it is their own doing. The effects of their conduct should not form the basis for an exercise of the discretion vested in a bail authority, to decide whether or not to grant bail.”

18. In Maxon Lakingu v. State [2011] N4333, the accused’s reason for bail was that his family belongings and garden crops had been destroyed by youths. When refusing this ground, the court commented:

“... the accused should be aware that this is a normal consequences which naturally flow from his alleged misdeeds.”

19. In Application by Derrick Noki (2010) N4072, the court commented that there must be appropriate evidence through affidavits to show whether this is a genuine reason for bail.

20. The National Court has spoken adequately on this ground and I do not wish to add anything further other than to endorse these comments and not deviate. I therefore reject this second ground put forth by the applicants.

21.. I find therefore Applicants have not demonstrated or established by way of appropriate evidence why their continued detention is unjustified. See Re: Fred Keating –v-The State [1983] PNGLR 133

22. I perused the Summary of Facts which is Annexure B attached to the applicants’ affidavits which show that the applicants are charged with one count of manslaughter and three counts of Deprivation of Liberty and found that the considerations under sections 9 (1) (c) (i) and (iii) were present with the use of a dangerous weapon, a gun which was used to threaten the deceased and three others. The Supreme Court in Re Fred Keating (supra) provides that where one of the factors under section 9 (1) is established unless the applicant shows his continued detention in custody is not justified bail should be refused. See Kapi DCJ at page 138 and Andrew. J at page 140. Therefore in accordance I refused bail on 9 February 2018.

__________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Applicant