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Mangape v State [2020] PGNC 342; N8602 (28 October 2020)

N8602

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 655 OF 2020

MASO MANGAPE
Applicant

-v-

THE STATE
Respondent

Lae: Kaumi J
2020: 3^rd & 15^th October

CRIMINAL LAW – Bail Application-One count of Murder and One Count of Attempted Murder contrary to sections 300 (1) and 304 of the Criminal Code –Innocence, Health, Welfare of family, Employment, Negotiator and Witness in pending case-Considerations under section 9 (1) present-Onus shifts to Applicant to show sufficient cause why continued detention not justified- Applicant has not established by way of appropriate evidence why the interest of justice was in his favour for a grant of bail-Bail refused.

A man charged with one count of murder and one count of attempted murder applied for bail. The applicant failed to show sufficient cause why his continued detention was not justified. Bail was refused.

Held:

[1] 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 [1983] PNGLR 133.

[2] Applicant has not by way of appropriate evidence discharged the onus of establishing that his continued detention was not justified.

[3] Bail is refused.

[4] Courts should not be unnecessarily burdened by applications for bail by irresponsible people who would rather act upon impulse then worry about their actions when the consequences kick in later.

Cases Cited:

Re Fred Keating [1983] PNGLR 133

Triga Kakarato v The State [1999] N1891

Osara v The State [2001] PGNC 149

Philip Maru & Arua Oa [2001] N2045

Application by Derrick Noah (2010) N4072

Re Bail Application by Hombi [2010] N4080

Dr Theo Yausase v The State [2011] SC 1112

Francis Potape v State [2015] SC 1419

Joshua David v State (2016) CR (App) 17

Felix Kange v The State SC1562 SC APP NO 15 OF 2016

Legislation Cited:

Constitution of Papua New Guinea

Criminal Code 1974

Bail Act 1977

Correctional Services Act 1995

Counsel

Mr. Steven Kesno, for the Applicant
Ms. Susan Joseph, for the Respondent

RULING ON APPLICATION FOR BAIL

28 October 2020

1. KAUMI, J: This is 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 the applicant charged with one count of Murder contrary to section 300 (1) of the Criminal Code Act and one count of Attempted Murder contrary to section 304 of the Criminal Code Act. I heard the application and refused it on 15 October 2020. The reasons for my refusal were given in brief orally. Section 16 (1) of the Bail Act requires that I give reasons for my refusal in writing which I now give in full in due compliance.
   

BRIEF FACTS

2. Annexure A of the Applicant’s affidavit sworn 5 October 2020 is the Summary of Facts and it states:
   

“That at about 8pm the applicant/accused Maso Mangape a male aged 53 years of Yarik village, Porgera District, Enga Province, employed as General Manager of IPI Branch in Lae, and resides at 10 Mile. It was alleged that on Saturday 3 October 2020 at about 8:00pm the accused was a crew in a Toyota Landcruiser double cabin (4 doors) blue in colour and registration number # LBU 656 driven by his driver, along Okuk Highland and at 4 Mile some unknown suspects stoned his vehicle. He told his driver to turn back and came back to where it was stone and the accused got out of the vehicle and question one of the vendors on the roadside. He was told that the suspects who stoned his vehicle were from the back near the swamp. He got angry and started firing shots from the pistol. In the process, two people were shot. One male victim namely Thomas KAR from Dei Council Western Highlands Province and resides at 4 Mile. This victim was shot on the forehead and was rushed to Angau Hospital and died at the hospital. The second victim is a female from southern Highlands and also resides at 4 Mile. She was shot on her thighs and was rushed to Angau Hospital and was treated and discharged. The accused was traced and told to come to the Police Station on Sunday 4^th October 2020 with the said vehicle. He was told to come back on Monday 5^th October 2020 and he did and was questioned in relation to this incident and was formally arrested and charged, cautioned, told of his rights and was placed in the cells”.

THE RELEVANT LAW

3. Kandakasi. J (as he then was) gave a succinct summary of the bail 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”. Re Fred Keating [1983] PNGLR 133

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

4. From reading the applicant’s two affidavits filed in support of his application for bail I note that the main reasons he relies on for his application are firstly, his claim of innocence, secondly, the condition of his health, thirdly the welfare of his family, fourth his employment, fifth, role as a chief negotiator and lastly him being a witness in a pending case. I will address other related matters as well. The Public Prosecutor has objected to his application for bail.
   

ISSUE

5. The central issue is whether or not the applicant should be granted bail.
   
6. Having heard submissions from both counsels and received into evidence affidavits filed in support of the application by the applicant and against it, I highlight the central issue by posing the following questions:
   

[i] Has the prosecution discharged the onus on reasonable ground, and to the satisfaction of the court, of the existence of one or more of section 9 considerations?

[ii] Is the innocence of an applicant a relevant consideration in a bail application?

[iii] Does the health of an applicant amount to a relevant consideration in a bail application?

[iv] Is the welfare of family a relevant consideration for bail?

[v] Is steady and full-time employment a relevant consideration for bail?

[vi] Is one’s role as a leading negotiator a consideration for bail?

[vi] Is being a witness in a pending trial a relevant consideration in a bail application?

APPLICATION

7. In support of his application the applicant has filed certain documents, the bail application document number 1 filed on the 5^th of October 2020 and in support of it two affidavits by the applicant himself. His first affidavit, document number 2, was filed on the 5^th October as well. His second affidavit is document number 6 and that was filed on the 9^th of October 2020 and this second affidavit adds further details to the grounds referred to in his first affidavit. There are also two affidavit proposed by two guarantors; Pastor Peter Konde, document number 3, also filed on the 5^th of October 2020 and Amos Yapo, document number 4 filed on the 5^th of October 2020.
   
8. I will now proceed to answer the questions posed above.
   

[i] Has the prosecution discharged the onus on reasonable ground, and to the satisfaction of the court, of the existence of one or more of section 9 considerations?

9. I first consider what the law says about this matter.
   

SECTION 9 BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

[2](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) that the person in custody is unlikely to appear at his trial if granted bail;

(b) that the offence with which the person has been charged was committed whilst the person was on bail;

(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;

10. The State opposes the application on the basis of section 9 (1) ( c) (i) (ii) (iii) of the Bail Act, as the alleged act constituting the offence in respect of which the person is in custody consists of a serious assault, a threat of violence to the deceased and as a result he died and a woman was wounded. Further that at the time of the alleged offending, the applicant had in his possession a firearm of which he used in the result of the alleged offending.
    
11. I now consider what is in the Summary of Facts and note several pertinent matters emerging from what is alleged against the applicant.
    
12. On Saturday 3 October 2020 at about 8:00pm the accused was a crew in a Toyota Land cruiser double cabin (4 doors) blue in colour and registration number # LBU 656 driven by his driver, along Okuk Highway and at 4 Mile some unknown suspects stoned his vehicle.
    
13. He told his driver to turn back and came back to where it was stoned and the accused got out of the vehicle and questioned one of the vendors on the roadside. He was told that the suspects who stoned his vehicle were from the back near the swamp. He got angry and started firing shots from the pistol.
    
14. In the process, two people were shot. One male victim namely Thomas Kar from Dei Council Western Highlands Province and resides at 4 Mile. This victim was shot on the forehead and was rushed to Angau Hospital and died at the hospital.
    
15. The second victim is a female from the Southern Highlands Province and also residing at 4 Mile. She was shot on her thighs and was rushed to Angau Hospital and was treated and discharged.
16. The accused was traced and told to come to the Police Station on Sunday 4^th October 2020 with the said vehicle. He was told to come back on Monday 5^th October 2020 and he did and was questioned in relation to this incident and was formally arrested and charged, cautioned, told of his rights and was placed in the cells.
    
17. The applicant at paragraphs 4 of his first affidavit in support and 3 of his second affidavit in support places himself at the material scene and time firing his licensed firearm which conforms to a certain extent with the allegations in the police summary of facts, the only difference being where he says he pointed his pistol when he fired. The summary of facts goes further to state that in the process of this two people were shot, a male was shot on the forehead and died whilst another person, a female was shot and wounded on her thigh. There can be no doubt going by these facts that serious assaults occurred at the material scene at the material time.
    
18. DCJ Salika (as he then was) in the matter of Joshua David v State (2016) CR (App) 17 said:
    

“When any homicide charges are laid, assault occurs on all those occasions and so section 9 (1) (c) exists”.

19. I endorse what Salika DCJ (as he then was) said in Joshua David v State (supra).
    
20. Murder is a homicidal offence that involves a serious assault on the body of another person the result of which is a permanent loss of life.
    
21. The offences that the applicant is charged with are homicidal in nature and consist of serious assault and the accused was armed and discharged his licensed firearm at the time of the commission of both offences.
    
22. I find that the State has discharged the onus on reasonable ground and to the satisfaction of the court of the existence of a consideration under section 9 (1) (c) (i) (ii) (iii) and answer the first issue in the affirmative (yes).
    

[ii] Is the innocence of the applicant a relevant consideration in a bail application?

23. The Applicant in his two Affidavits in Support states that he fired twice into the air to disperse the attackers and that at no time did he aim his firearm and fire directly at any person. That he had no intention to kill or injure any person. The applicant through his counsel raises the defences of provocation and self-defence

and denies the charges. In other words that he is innocent of any wrongdoing.

24. In response to this ground I consider what the Supreme and National Courts of this country have said regarding this ground of innocence.
    
25. Kirriwom. J in Triga Kakarabo v The State [1999] N1891 said:
    

“What does it matter if he denies the charge? There is no question about his innocence until proven guilty. That is a matter for substantive hearing.”

26. In Dr. Theo Yausase v State [2011] SC1112 the Supreme Court said:
    

“The question of whether the applicant is innocent or guilty is not before the court. If it appeared that an applicant has been charged without any proper legal basis, which might amount to an exceptional circumstance. But that is not the case here. The applicant has recently been committed for trial, so the fact that he is proclaiming his innocence is irrelevant to his bail application.”

27. Both the Supreme and National Court have said that the innocence or otherwise of a bail applicant is a matter for the substantive hearing and I see no reason to deviate and reject this ground as well and answer this issue in the negative.
    
28. And may I say also that I find that there was absolutely no need for the applicant to order his driver or chauffer to turn around and drive to the location at 4 mile where his vehicle was stoned as that location was dark. He could have driven a little further back to the 3 mile police station and sought assistance from police to apprehend the stone throwers. Instead he chose to play the role of policeman and now he finds himself in this predicament.
    

[iii] Does the health of an applicant amount to a relevant consideration in a bail application?

29. In response to this advanced ground by the applicant, the Correctional Service Act 1995 says that Correctional Services officers are charged by law with responsibility of ensuring the safety and well-being of all inmates and have processes in place to facilitate this responsibility. Sections 7, 13 and 67 of the Correctional Service Act 1995 are the legal imperatives for this.
    
30. In Francis Potape v. State [2015] SC 1419, Mr. Potape relied on his medical condition as his ground for bail. The Supreme Court in response said that “the welfare of a detainee or prisoner, by virtue of sections 7, 13 and 67 of the Correctional Services Act 1995 is a matter for the correctional institution and the goal commander to attend to”.
    
31. The Supreme Court in the matter of Ester Ere v The State SCAPP 20 of 2017 dealt with the ground of ill health raised by the applicant in the following manner- “The medical condition of a prisoner may constitute an exceptional circumstance justifying the grant of bail but only if the condition is life threatening and the continued detention would seriously endanger the health and life of the prisoner”.
    
32. In paragraph 9 of his first affidavit the applicant deposes that he has chronic hypertension and that he takes medication daily to help stabilize his condition. Further that if he is to be remanded in custody for a prolonged state it will worsen his condition.
    
33. Annexure “C” of the applicant’s second affidavit is a medical report from the Lae International Hospital dated 4 October 2020 made by a Doctor Youngpu Samo concerning the applicant’s health condition. The doctor states that the applicant has been seen on several occasions here at the Lae International Hospital when he presented with head ache, dizziness and chest pain. He was diagnosed 2 years ago with angina, hypertension and increased blood sugar and blood cholesterol with other lipids. Further that he was undergoing treatment with antihypertensive (amlodipine 10mg oral daily, enalapril 10mg oral daily and anti-hyperlidiemia atorvastatin 40mg oral daily and aspirin 100mg oral daily. He has been advised to:
    

–stop taking high fatty and sugar diets
–Regular review at the LIH clinic on control of blood pressure
–up to date with regular prescribed medications
–avoid conflicts and fuss that may aggravate further increase in blood pressure which has an increased risk of heart attack and stroke.

34. From the evidence provided to me by the applicant from his doctor, I do not find his medical condition to be life-threatening and I would be of a different opinion if say he was on a ventilator for life-support on a bed in a hospital or needing nebulizer treatment regularly in a hospital etc., Certainly there is no evidence before me of him being on life–support rather he is on medication i.e. tablets etc. It would appear that he is suffering from a life style disease.
    
35. His medical condition can be assisted whilst in custody by him following the doctor’s orders as per the medical report by drinking his prescribed tablets on time, regular reviews at the LIH clinic in Lae on control of blood pressure with CS officers escorting him to Lae which is only a few kilometers away by sealed road from the Buimo prison, avoiding conflicts and fuss that may aggravate further increase in blood pressure which has an increased risk of heart attack and stroke and finally his control of high fatty and sugary diets. I reject this ground advanced as a ground for the grant of bail.
    

[iv] Is the welfare of family a relevant consideration for bail?

36. The applicant contends that the welfare of his family will be adversely affected by his incarceration and for this reason bail should be granted. At paragraph 6 of his second affidavit the applicant deposes that he has a son aged 28 years who suffers from autism. That as a result of his condition he looks like a 16 year old and requires constant attention and care. Further that with his wife’s advanced stage of pregnancy (9 months) it would be difficult for her to look after all the other children (7) including this son.
    
37. Again I consider what the law says about this ground.
    
38. In Philip Maru and Arua Oa [2001] N2045, Kandakasi J (as he then was) said:
    

“Finally, it is a common claim by all bail applicants 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 discretion vested in a bail authority, to decide whether or not to grant.

39. Kirriwom. J in In re Bail Application by Hombi [2010] N4080 with respect to the ground of family welfare said:
    

“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 same reasons I have given earlier. Responsible people must always have the well-being and interest of the family at heart and put their interest 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.”

40. I agree with the valid reasons given by Kandakasi. J (as he then was) and Kirriwom. J in rejecting this ground as justifying release on bail or forming a basis for an exercise of discretion vested in a bail authority, to decide whether or not to grant.
    
41. Further to the valid reasons given the courts in those two cases I hasten to add that it is equally valid to say that today we live in a country, Papua New Guinea where our tribal, clan and family ties are still very much alive and strong and a safety net and indeed form the fabric of the society we live in. Certainly, the ravages of nuclear families has not overtaken us as it has in developed nations. The assertions of the applicant that because he is incarcerated his family will suffer flies in the face of this. His wife is from Hengali in Butibum village, Lae, Morobe Province, so what is difficult for her relatives to travel up to 11 mile, HBS Compound, Lae and assist her or for his relatives to assist them after all as he says he is the Chairman of their landowner company, Porgera Landowners Association negotiating team.
    
42. Courts should not be unnecessarily burdened by applications for bail by irresponsible people who would rather act upon impulse then worry about their actions when the consequences kick in later.
    
43. I reject this ground as submitted by the applicant as a premise for a grant of bail and answer in the negative.
    

[vi] Is steady and full-time employment a relevant consideration for bail?

44. The applicant deposes at paragraph 7 of his second affidavit that if he is granted bail he will return to his work as the general manager of IPI Transport Limited and that he is responsible for the management of the company with operations throughout the country. That the company is part of the IPI Group of Companies of which a Scott O’Reilly is the chief executive officer and O’Reilly has assured him that he will return to work if the court allows him bail. Annexure “D” of this affidavit is a reference letter by O’Reilly.
    
45. In considering this ground, I take into account what Kirriwom. J said in In re Bail Application by Hombi (supra):
    

“Having a steady and full-time employment has been considered as supportive of a person’s bail. But has never been accepted as a good ground for bail except in very rare circumstances where public interest demanded it...It is in the interest of the public that he is released on bail...? The misfortune of losing one’s job if he was detained relative to these allegations is not a consideration for bail. It also raises another public interest question. A person who valued his integrity and his profession or job must not by his own deliberate conduct place himself in any conflict where such of his personal values are exposed to risk of being compromised.”

46. I agree and endorse His Honour’s comment with respect to the ground advanced by the applicants of “steady and full-time employment” and see no reason to divert from it.
    
47. One’s employment cannot be used as a premise for a grant of bail. Furthermore the applications before me for consideration are devoid of evidence of “rare circumstances where public interest demanded that bail be granted” and 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 so for these reasons I reject this ground and answer this issue, in the negative.
    

[vi] Is one’s role as a leading negotiator a consideration for bail?

48. The applicant also contends that he should be granted bail because as he deposes to at paragraph 8 of his second affidavit, he is also the chairman of the Porgera Landowners Association negotiating team in its discussions with the national government and other stakeholders on the issue of the special mining lease and benefits to the Porgera mine landowners. Further that he is required to attend meetings and consultations with the State and other stakeholders and that the next meeting is scheduled for the 12 October 2020.
    
49. Again, I refer to what the court has said with respect to ground of this nature and in particular to what Kirriwom. J said in re Bail Application by Hombi (supra):
    

“Having a steady and full-time employment has been considered as supportive of a person’s bail. But is has never been accepted as a good ground for bail except in very rare circumstances where public interest demanded it...It is in the interest of the public that he is released on bail...? The misfortune of losing one’s job if he was detained relative to these allegations is not a consideration for bail. It also raises another public interest question. A person who valued his integrity and his profession or job must not by his own deliberate conduct place himself in any conflict where such of his personal values are exposed to risk of being compromised.”

50. The applicant should have considered his position as the chairman of the Porgera Landowners Association negotiating team and especially the upcoming scheduled meeting and not by his own deliberate conduct placed himself, in any conflict where his position was exposed to risk of being compromised.
    
51. I note a Mr Dickson Pundi, deputy chairman of the Porgera Mine Landowners’ negotiating committee on 7 October 2020 in Annexure “E” of the applicant’s second affidavit suggesting that anyone who is able to can confirm with the Prime Minister, Police Minister, Mining Minister, MRA Managing Director and any of Barrick (Niugini) Limited’s Senior Executives both in-country or abroad of the applicant’s landowner leadership status and his involvement. I find this suggestion to be not only disrespectful and an affront to the court but also flawed in law as it is not this court that is applying for bail but Maso Mangape and it is for him to obtain this kind of information in support of his application.
    
52. I find the application before me for consideration is devoid of evidence of “rare circumstances where public interest demanded that bail be granted” and surely obtaining such information wouldn’t have been too onerous of a task by the applicant given the operation of section 9 (2) of the Bail Act so for these reasons I reject this ground and answer this issue, in the negative.
    

[vi] Is being a witness in a pending trial a relevant consideration in a bail application?

53. I do not wish to comment on this aspect of his bail application as I do not consider such a ground as a premise upon which one can ask for bail as his further participation as a witness in that pending trial remains a matter for that trial court.
    
54. 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.
    

RULING

55. I find the Applicant in this matter has not demonstrated or established by way of appropriate evidence why his continued detention is unjustified. See Re: Fred Keating –v-The State [1983] PNGLR 133
    
56. 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 refuse bail.
    

COMMENTARY

57. In passing I would like to quote what the Supreme Court said in Felix Kange v The State SC1562 ; SC APP NO 15 OF 2016 which I fully endorse and reproduce:
    

“We agree and adopt these views and the principles enunciated therein. Additionally, we are of the view that, if the Courts were to readily grant bail on allegations of the type that was before the Court in the Paul Tiensten case and now before us, that would be seriously counterproductive to having a criminal justice system based on the rule of law and on the principles of all persons being equal before the eyes of the law. A ready grant of bail on the basis of risks of personal harm, injury or death to a well to do prisoner or a remandee, would clearly announce to the world at large that the criminal justice system discriminates on the basis of social status. The more high profile and affluent a prisoner or a remandee is, the lesser the likelihood of loss of liberty than persons lower in status. Effectively, this would encourage more criminal behavior and/or conduct by the high profile and affluent in society. This would in turn go against one of the most important purposes of criminal sentencing and imprisonment, which is to deter other possible offenders and not to discriminate on the basis of social status. The greatest deterrence comes from appropriate treatment of a person of influence or a person higher up on the social ladder in society whilst the opposite would no doubt be the case if we were to readily let such an offender get out on bail”.

__________________________________________________________________
Kesno Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State