N7317
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR (AP) NO 146, 147, 148 & 149 OF 2018

THE STATE
V
CHARLES TANGOLE & JACK PETER KALOGA & JONATHAN LUKE KIRI & JACK SAWAS & LUKAS BAILI

Kimbe: Miviri AJ
2018	: 21st June 

CRIMINAL LAW – Application for bail –Manslaughter- S302 CCA – s9 (1) (c) (i) (ii) (iii) Bail Act – bail objected – bail not granted.

Facts

Applicants charged with Manslaughter jointly assaulting deceased in company until he succumbed to the level of violence dead.

Held
   
1.	Bail objected
2.	Section 9 (1) (c) invoked
3.	Guarantors not independent. 
4.	Bail not allowed

Cases sited:

Fred Keating [1988] PNGLR 133

Counsel:

L. Jack, for the State
D. Kari, for Defendant
					
RULING ON BAIL
22nd June, 2018
 
1.	MIVIRI AJ: This is the Ruling on an Application for Bail made by the Applicants who are in custody charged for Manslaughter. They are charged pursuant to Section 302 of the Code.
	
Facts 

2.	The facts are that they jointly aided and abetted and assaulted the deceased over an argument on the 19th January 2017 until he succumbed to the level of violence exerted upon him. He was speared by one of them and the others compounded by assaulting him until he was dead.

3.	They make an Application for Bail pursuant to Section 6 of the Bail Act and also Section 42 (6) of the Constitution. In so doing the provisions of Section 9 of the Bail Act are considered as to whether or not there are reasonable grounds upon which the Applicants will appear at their trial whilst on bail. The offence is a threat of violence to another, use of offensive and dangerous weapons, and serious assault with death culminating. The material that the Applicants have filed in support does not refute or outweigh the requirements of Section 9 (1) (c) of the Bail Act. It is required, “before the discretion to refuse bail arises the court has to be satisfied that there are substantial grounds for believing that one or more of the matter described in section 9 (1) (a) to (g) are present It is the existence of substantial grounds for the belief not the belief itself which is the crucial factor see R v Slough Justices; Exparte Duncun and another [1982]75 Cr. App. R 384; In re Fred Keating [1988] PNGLR 133

4.	Applicant has the right to be granted bail by virtue of section 6 of the Bail Act reinforced by the Constitution section 42 (6) but in the exercise of that discretion the court is directed to section 9 of the Bail Act; Re Thomas Markus [1999] PGNC 82; N1931 (15 September 1999). Discretion meaning that there must be facts provided upon which the discretion in law will be exercised. Here these are the following that the applicant has filed.

5.	The Applicant’s affidavit dated firstly Charles Tangole dated the 5th June 2018 and filed the same date swears that he is 18 years old arrested on the 22nd August 2017 charged with Manslaughter. Upon perusal of his affidavit and accompanying annexure there is nothing substantial to sway that the requirements of Section 9 (1) (c) of the Bail Act have been erased so that the material he filed has outweighed to pave way for him to be granted bail.

6.	The affidavit attaches   as annexure “A” and “B” summary of Facts together with the information which shows very serious and aggravating situation within Section 9 (1) (c) of the Bail Act not settled by the affidavit of the proposed guarantor of one Raphael Liu dated the 5th June 2018 who deposes, “That I know the Applicant very well as he is my son.”. He is not an independent person and does not qualify as a guarantor in the light  of this fact and section 9 (1) (c) remains substantial and the discretion to invoke has not been swayed by his affidavit together with the second proposed guarantor Thomas Linge who deposes, That I know the applicant very well as he is my nephew.” He too falls into the same category and could not qualify as a guarantor upon which bail can be granted.

7.	The application of this Applicant does not meet substantially what is called for under Section 9 (1) (c) Bail Act, accordingly his application is refused.

8.	The next is Jack Peter Kaloga applicant who relies on his own affidavit dated the 5th June 2018 deposing and attaching similar material as his accomplice dealt with above Charles Tangole nominating and proposing the same two guarantors of Raphael Lui who is in this case by his affidavit dated the 5th June 2018 deposing, “that I know the applicant very well as he is my brother in law.” Again he is not an independent guarantor and therefore will not qualify as a guarantor for this applicant. The second nominated and proposed guarantor for this applicant is Thomas Linge who deposes an affidavit dated the 5th June 2018 swearing, “That I know the applicant very well as he is my nephew.” He is in similar vein he will not qualify as a guarantor for this applicant so as to quell the effects of Section 9 (1) (c) of the Bail Act here. Accordingly his application is refused.

9.	The State objects to the application and invokes Section 9 (1) (c) (i) (ii) (iii) of the Bail Act as applicable here on the basis of which the material advances do not reasonably show that applicant will reappear from Bail. In any case on the basis of which bail should be refused.

10.	The next is Jonathan Luke Kiri who deposes by his affidavit similar and same material in support as the other two preceding him set out above. The annexure are basically the same and do not by themselves add to against the impact of section 9 (1) (c) of the Bail Act. This extends to the affidavits of the proposed guarantors same as the previous two applicants of firstly Raphael Liu dated the 5th June 2018 deposing, “That I know the applicant very well as he is my nephew.” And the affidavit of Thomas Linge also dated the same date deposing, “That I know the applicant very well as he is my nephew.” And for the purposes of the application in this applicants case not independent persons and there do not set aside not outweigh section 9 (1) (c) of its effects in the matter. It means substantially his application fails and will not be accorded. His application is therefore refused.

11.	The next applicant is Jack Sawas who relies on his own affidavit dated the 5th June 2018 and the material within is the same as the others set out above as he too is an accomplice in the matter arising from the same information that is laid against all therefore the charge is the same together with the statement of facts. He too faces the impact of section 9 (1) (c) of the Bail Act that must be set or outweighed so as to allow that he be granted bail. He too relies on nominated guarantors same as with the others of Firstly Raphael Liu who deposes by affidavit dated the 5th June 2018 , “That I know the applicant very well he is my brother in law.” And secondly Thomas Linge also dated as with the other 5th June 2018 who deposes, “That I know the applicant very well as he is my brother in law.” For the purposes of support of his application both are not independent guarantors and do not erase the effects of section 9 (1) (c) of the Bail Act. There is insufficient guarantor posed upon which to sway the court to accord the application made. The material is not substantial and will not be accorded as the basis to grant the application made. There being no other material further to be considered in his application to move it forward it must be refused in all circumstances. His application is denied.

12.	The last and final applicant is Lukas Baili relies on his own affidavit dated the 5th June 2018 where he deposes similar and like material with the others set out above his accomplices in that allegation of manslaughter committed on the 22nd August 2017 at Pasiloke of one Bonifas Uma who was stabbed with a spear and assaulted until he succumbed to that level of violence resulting in death. As with the other accomplices application of section 9 (1) (c) is at the heart bearing serious assault, threat of violence and use of offensive or dangerous weapon in the allegation. He too like the others preceding rely on the affidavits of firstly Raphael Lui and Thomas Linge both dated the 5th June 2018 in each case. Within the former deposes, “That I know the applicant very well as he is my nephew.” And the latter deposes, “That I know the applicant very well as he is my nephew.” In both cases the proposed nominated guarantors are both not independent persons in his application as with the others. And does not advance his application past the impact of Section 9 (1) (c) of the Bail Act. It is not substantial and there are no other materials in addition to advance his application any further. Like the others preceding him his application is without merit and consequentially will be refused. His application is denied. 

13.	I have considered the application on its own merit in each case and am satisfied on reasonable grounds that on the material in support in each case the application should not be granted in the terms as applied. In so doing I am not bound by technical rules of evidence but on the information as it is available. Here these are the affidavit of the applicants and their same proposed guarantors including the annexure to their affidavits. Viewed together I am not swayed that bail should be granted particularly in view of the fact that the guarantors are not a reputed and independent persons of standing in the community and upon whose word bail should be granted. To accede will be not to guarantee the reappearance of the applicants in the light of the outstanding issue posed by Section 9 (1) (c) of the Bail Act in each case.

14.	In the entirety the materials posed in support are all insufficient to grant the applications individually and jointly accordingly the applications are all refused.

 Orders accordingly.	
________________________________________________________________
Public Prosecutor: Lawyer for the State		
Public Solicitors: Lawyer for the Defendant