N8603

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 193, 203, 204, 205 & 206 of 2020

KYLIE MODUWA, TOMMY MATUL, ELIAB KORIMA, NOAH MATUL & BILL MATUL
Applicant

V

THE STATE
Respondent

Lae:  Kaumi J
2020: 3rd & 25th August

CRIMINAL LAW – Bail Application-One count of Murder –Innocence, Family Welfare, Employment, Health and Education-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.

Five remanded people charged with one count of murder applied for bail. Applicants failed to show sufficient cause why their 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 (supra)

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

[3] Bail refused.

[4] Applicants’ pre-trial custody of 35 days did not amount to an inordinate period in pre-trial custody.

Cases Cited:

Re Fred Keating [1983] PNGLR 133
Malaki Kongo and Joe Akusi v The State (1996) N1544
Bernard Juale v The State (1999) N1887
Triga Kakarato v The State [1999] N1891
Osara v The State [2001] PGNC 149
Philip Maru & Arua Oa [2001] N2045
Re Boram Correctional Institution [2006] N3801
Paul Guant v The State (2009) N3576
Kuku Hayara v The State [2009] N3598
Application by Derrick Noah (2010) N4072
Re Bail Application by Hombi [2010] N4080
Dr Theo Yausase v The State [2011] SC 1112
Safinko Eric v State [2012] N4755
Francis Potape v State [2015] SC 1419
Joshua David v State (2016) CR (App) 17
Jacky Anton v The State [2018] N7158
Kopu Saroa v The State 2018 CR (AP) 877 of 2017 (unreported and unnumbered judgment) (9 March 2018)

Legislation Cited: 

Constitution of Papua New Guinea 
Criminal Code 1974
Bail Act 1977
Correctional Services Act 1995

Counsel

Ms. Dalton, standing in for Mr. Langah, for the Applicants
Ms. Susan Joseph, for the Respondent

RULING ON APPLICATION FOR BAIL

25th August, 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 five applicants jointly charged with one count of murder contrary to section 300 (1) of the Criminal Code. 

THE RELEVANT LAW

2.	In my judgments on applications for bail by applicants charged with wilful murder in Jacky Anton v The State N7158 which I delivered on 9 March 2018 and Kopu Saroa v The State 2018 CR (AP) 877 of 2017 (unreported and unnumbered 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 (as he then was) 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 from all applicants’ affidavits filed in support of their applications common grounds upon which their applications are premised, inter alia firstly, absence of any reason to abscond bail due to their respective jobs and for one his education, secondly, the welfare of their families, thirdly their innocence and lastly that the offence that they are charged with is not one that is stated in subsection 9 (c) of section 9 (1). I will address other grounds as well. The Public Prosecutor has objected to their applications for bail.

4.	In any 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 for the court to act otherwise is to be deemed or to be accused of acting in cavalier a manner or at the worst to give an appearance of determining the application summarily and therefore 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.

ISSUE

5.	Having heard submissions from both counsel and received into evidence affidavits filed in support of the applications by the Applicants the following issues emerge:

[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 welfare of family a relevant consideration for bail?
[iii] Is steady and full-time employment a relevant consideration for bail?
[iv] Is the innocence or guilt of the applicants a relevant consideration in a bail application?
[v] Is the education of an applicant amount to a relevant consideration in a bail application?
[vi] Does the health of an applicant amount to a relevant consideration in a bail application?
[vii] Have the Applicants spent an inordinate period in pre-trial custody?

APPLICATION

6.	The Applicants are jointly charged with one count of murder contrary to section 300 (1) 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 inter alia four common grounds for the grant of bail.

7.	The Applicants’ applications are supported by their Affidavits in Support sworn on the 21st (Kylie) and 27th (the other four) July 2020 and filed on the 28th July 2020. In their affidavits, the Applicants cover their personal particulars, employment in various capacities and education (Bill), their charge, their very detailed account of what transpired before, during and after the incident in essence their innocence and sickness (Bill). They also filed Affidavits of various guarantors on 28th February 2018. 

[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?

8.	The first issue I have to address is, whether or not the prosecution has discharged the onus on reasonable grounds, and to the satisfaction of court, of the existence of one or more of section 9 (1) considerations? The State objected to the applications on the basis of section 9 (1) (c) (i)-serious assault and section 9 (1) (c) (ii) - a threat of violence to another person. I have perused the same Summary of Facts which has been annexed to all the Applicants’ Affidavits in Support and note from it that on Friday 17 July 2020 the applicant Kylie Moduwa called the other bail applicants to her workplace to pick her up after work when she sighted the deceased outside it. Whilst they were there a fight broke out between the deceased and them which led to him being punched several times causing him to fall on to the footpath. He was later taken to the Angau General Hospital where he died the same night in the Accident & Emergency unit. I note their counsel submits that the offence (Murder- Section 300 (1)-Criminal Code) that they are charged with is not one that is stated in subsection 9 (1) (c) (i). 

9.	So what does the law say about this issue?

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.	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”.

11.	Murder is a homicidal offence that involves a serious assault the result of which is a permanent loss of life.

12.	 I endorse what DCJ Salika (as he then was) said in Joshua David v State (supra) and do not accept the learned counsel’s submission that Murder- Section 300 (1)-Criminal Code Act) is not one that is stated in subsection 9 (1) (c) (i). 

13.	Counsel’s submission on point is misconstrued in law. 

14.	 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) and so I answer the first issue in the affirmative (yes).

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

15.	The applicants contend that the welfare of their respective families will be adversely affected by their incarceration and for this reason bail should be granted. Again, I consider what the law says about this ground.

16.	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.

17.	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.” 

18.	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.

19.	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.

20.	 I reject this ground as submitted by the applicants as a premise for a grant of bail and answer in the negative. 

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

21.	The applicants argue that bail should granted to them because they are employed and because of their employment they will not abscond bail. 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 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.”

22.	 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. 

23.	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 the third issue, in the negative.

[iv] Is the innocence the applicants a relevant consideration in a bail application?

24.	The Applicants are all related and in their Affidavits in Support state that the whole incident was essentially a “push and shove” affair. That when they left the scene the deceased was fine and walked away and that they only learnt of his passing later in the evening. The gist of what they depose to in their affidavits is that it was mostly a verbal argument with no real fighting and there appears to be suggestion of the involvement of the public after the following words were stated by some BSP staff from the safety of their premises, “Em man blo paitim meri ya”. Further that they really had nothing to do with his death and that it may have been caused by other persons in the vicinity at the time and therefore in other words that they are innocent.

25.	In response to this ground I consider what the Supreme and National Courts of this country have said regarding this ground of their innocence.

26.	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.”

27.	 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.” 

28.	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.

29.	Having reached this outcome to this issue I note that Tommy Matul at paragraph 8 of his affidavit in support states that the deceased kept coming to fight with them and because of his history of violence against his sister (Kylie) he (Tommy) was mad and punched the deceased once and because he was drunk and unbalanced he fell down. What Tommy attests to in his affidavit here agrees with the Police Summary of Facts and shows that the incident was not a mere “push and shove” affair as the applicants would have the Court believe but something more violent.

[v] Is the education of an applicant a relevant consideration in a bail application?

30.	Tommy Matul at paragraph 3 of his affidavit dated 27 July 2020 cites his education as a Grade 12 student as the reason why he should be granted bail so he can continue schooling.

31.	In the case of Safinko Eric v State [2012] N4755 the court in considering the desire to pursue studies as the reason for the application for bail said:

“I agree that education is an important tool in one’s life. We cannot deny this fact of life…I consider that his remand at Bihute will not adversely affect him. He can still study and do his exam whilst being a remandee. All he needs to do is to make necessary arrangements with CIS Officers so they could facilitate for him to do his examinations”.

32.	I agree with the sentiments expressed by the court in Safinko Eric v State (supra). 

33.	Correctional Institution 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 and sections 7, 13 and 67 of the Correctional Services Act 1995 are the legal imperatives for this.

34.	So Tommy who says has missed his exams but wants to continue studying can still do so from within the confines of Buimo Corrective Institution by expressing his desire to the CI Officers for their consideration and facilitation for him. Whilst education is an important tool, an accused who expresses an interest to continue his education has the opportunity to do so from the confines of a prison for the reasons I’ve given. Education for detainees may be a consideration however it is well catered for within the parameters of the Correctional Services Act 1995 so I reject this ground.

[vi]  Does the health of an applicant amount to a relevant consideration in a bail application?
35.	 Bill Matul at paragraph 14 of his affidavit sworn on 27 July 2020 deposes that he has a medical condition but that doctors have not been able find what the cause of this sickness is so he endures it without medical remedy and at times experiences very acute and severe joint and hip pain.

36.	In response to this advanced ground by Bill Matul I reiterate what I said in paragraph 27 that 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 the welfare of a detainee or prisoner and sections 7, 13 and 67 of the Correctional Services Act 1995 are the legal imperatives for this.

37.	I am fortified by what the Supreme Court said in Francis Potape v State [2015] SC 1419. Mr. Potape had relied on his medical condition as his ground for bail. The 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 corrective institution and the goal commander to attend to.
 
38.	The Supreme Court in the matter of Ester Ere v The State SCAPP 20 of 2017 dealt with the raised ground of ill health 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: Ati Wobiro & Ors v The State, SCAPP 18, 19 and 20 of 2016 Unreported Judgment dated 24 November 2016”.

39.	I note that other than his bare assertion in his affidavit regarding his medical condition Bill has not provided any evidence with regard to his condition and given the operation of section 9 (2) the dearth of evidence on point has not helped his cause.

[vii] Have the Applicants spent an inordinate period in pre-trial custody?

40.	At the time of filing their applications the applicants say they had been in custody for 14 days. So I ask the obvious, is 14 days in custody amount to an inordinate period in pre-trial custody? 

41.	From my research on what amounts to an inordinate period, I have found that the courts have stated generally that in any bail application the court should take into account the length of time the applicant has been in custody, and that an applicant who has been in custody for an inordinate period may be able to show that this constitutes exceptional circumstances. However, it is not automatic that an applicant who has been in custody for a longer period must be granted bail on that factor alone and that the bail authority must still consider where the interest of justice lies before deciding to grant or refuse bail. See Malaki Kongo and Joe Akusi v The State (1996) N1544, Bernard Juale v The State (1999) N1887, re Boram Correctional Institution [2006] N3801, Dr Theo Yausase v The State [2011] SC 1112, Kuku Hayara v The State [2009] N3598 and Paul Guant v The State (2009) N3576. Batari. AJ (as he then was) in Malaki Kongo and Joe Akusi v The State (supra) stated that:

“By the time the accuseds are brought to trial in April, 1997 they would have spent over 12 months in custody if they are not released on bail. This is a relevant consideration in their favour. It is however not the sole determining factor. One may bear in mind also that, despite the long wait, case trials in Waigani could now be expeditiously dealt with through case listings so that the accuseds are not least assured of being brought to trial on fixed dates. There is no uncertainty of their being ever brought to trial”.

42.	From my research of these cases I cited in the preceding paragraph I consider a period of 24 to 36 months to be an inordinate period.

43.	The Applicants in their respective submissions at paragraphs 6 or 7 state the number of days they have been in custody. They state that they were arrested on 20 July 2020 and at the time of making their applications for bail on Monday 3 August 2020 had been in custody for a period of 14 days. 

44.	I consider a period of 24 to 36 months to be an inordinate period and am unable to see the urgency of such consideration considering the fact that they have only been in custody to date for 35 days for the charge of murder contrary to section 300 (1).

45.	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.

46.	 I find therefore Applicants in this matter 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.

47.	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.
____________________________________________________________________
Public Prosecutor: Lawyers for the State
Albright Lawyers: Lawyers for the Applicants