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Gedion v State [2020] PGNC 473; N8719 (14 September 2020)


N8719


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (AP) 236 OF 2020


BETWEEN:
REX GEDION
Applicant


v


THE STATE
Respondent


Lae: Dowa AJ
2020: 02nd & 14th September


BAIL – application for bail – applicants charged with wilful murder – grounds of bail – consideration of – grounds of bail not considered as “exceptional” – bail refused - s4 and 9 Bail Act


Cases Cited:
Hayara v State (2008), N3488

Felix Kange v The State (2016) SC 1530

Fred Keating v The State (1983) PNGLR, 133

Philip Maru & Arua Oa v State (2001) N2077

Theo Yausae v State (2011) SC1112


Legislation cited:


Constitution of Papua New Guinea
Criminal Code Act1974
Bail Act 1977


Counsel:


P Matana, for the State
J Kusip, for the Applicant

DECISION
14th September, 2020


  1. DOWA AJ: This is a bail application by the Applicant, Rex Gedion. The Applicant is charged with Wilful Murder contrary to Section 229(1) of the Criminal Code Act Chapter 96, pending his committal hearings.

Facts

  1. The Accused, Rex Gedion is aged 34, a local level government ward councillor and comes from Yangla village, Tewae- Siassi District, Morobe Province.
  2. It is alleged that the accused in the company of others wilfully murdered one Misek Mark, a male adult on 13th November 2019. The alleged offence took place at Yangla village, Tewae/Siassi, Morobe Province.
  3. It is alleged, on the afternoon of 13th November 2019 at about 2.00pm at Yangla village, the accused led a group of young men to one Joel Tobias’ home. There the accused and others started a fight and chopped the deceased, late Misek Mark. They also chopped the arm of Keith Misek, son of the deceased, who also died at the hospital three days later. The accused surrendered to the rural police and was arrested and charged.
  4. The Accused was charged on 12th June 2020 and had been in custody since, pending committal hearing.

Evidence

  1. The accused is applying for bail under Section 42(6) of the Constitution and Section 4 of the Bail Act, pending their committal hearing. The Applicant/Accused relies on the following affidavits:
    1. Bail Application filed 24th August 2020
    2. Affidavit of Rex Gedion filed 24th August 2020
    1. Affidavit of Pastor Martha Kaino filed 24th August 2020
    1. Affidavit of Robert Bonn filed 24th August 2020.

The Law


  1. Section 42(6) of the Constitution provides that a person charged with an offence, other than wilful murder and treason, is entitled to bail unless the interest of justice otherwise requires.
  2. Section 4 of the Bail Act, provides that: “A person charged with wilful murder shall not be granted bail except by the National Court or the Supreme Court.”
  3. Section 9 of the Bail Act provides that bail shall not be refused unless the Bailing Authority is satisfied on reasonable grounds as to the existence of one or more of the considerations set out in Section 9(1) of the Bail Act.

Settled Principles


  1. The law and principles to be applied in bail applications for murder and wilful murder are settled, in the cases of Fred Keating v The State (1983) PNGLR, 133; Yausase v The State (2011) SC 1112 and Felix Kange v The State (2016) SC 1530. The relevant principles applied when considering bail for a wilful murder are:
  2. The Accused advanced the following reasons for the grant of bail:
    1. Innocence of the crime
    2. Duty as ward Councillor in jeopardy
    1. Family needs
    1. Overcrowding and Covid 19 at holding jail, Buimo
  3. The State opposed bail because the alleged crime involved a serious assault, a consideration under section 9(1)(i) and (iii) of the Bail Act. The State sought to use the affidavit of Senior Constable Richard Kue, the investigating officer. Mr Kusip, counsel for opposed the use of the affidavit due to late service. I upheld the objection and so the affidavit was not used.

Proclaimed Innocence


  1. Mr Kusip, counsel for accused submitted his client denies the charge and asserted innocence. Mr Kusip submitted further that the summary of facts does not provide particulars constituting the offence charged which establishes a consideration under section 9 (1) of the Bail Act. Counsel referred to the case of Lakore v State (2011), N4235 in support of the submission.
  2. I have considered the submissions carefully. I note the summary of facts does not provide details of how the deceased was killed and what weapons were used. However, basic facts show the deceased was chopped to death. The facts provide names of four young men involved. The facts show the accused was present when the son of the deceased had his arm chopped which led to his death three days later at the hospital. In my view the facts are sufficient to support the charge. For the purposes of this bail application, I, with due respect, am not prepared to share Honour’s view in Lakore. Also, the facts and circumstances in that case are quite different from the present case. In the present case the accused surrendered to police and is charged with a serious offence. In my view lack of details in the summary of facts is not a matter showing exceptional circumstance.
  3. Mr Kusip submitted that the accused denies the charge. I note the accused did not specifically deny the facts or the charge in his affidavit. Whilst I do not hold this against him as he is entitled to remain silent, it would be helpful if he explained the circumstances of his arrest. In any case, proclamation of innocence as a consideration for bail has been rejected in as many National and Supreme Court decisions for being irrelevant. In Felix Kange v The State (2016) SC 1530, the Supreme Court, said this at paragraph 10 of the judgment:

“The question of whether the applicant is innocent or guilty is not before the court. If it is clearly established that the applicant has been charged without any proper legal basis that might amount to an exceptional circumstance. The evidence before the Court however discloses that he was initially charged with manslaughter. This has now changed, and his charge has been upgraded to a charge of murder. That is no light matter by any measure that can be ignored. Police investigations have been completed and the committal process is now set to take its normal course. The applicant’s proclamation of his innocence is irrelevant to his bail application and should be rejected. A similar result was arrived at in the case of Dr Theo Yausase v. The State. There Dr. Yausase was charged with wilful murder. Pending his trial in the National Court, he applied for bail. One of the reasons he advanced was his innocence. The Court rejected the proclamation or the applicant’s claim of innocence as irrelevant in a bail application.”


  1. I share the same view. Whilst the accused remain innocent until proven guilty, there is no similar presumption for grant of bail for a serious charge of wilful murder.

Leadership duties as Ward Councillor in Jeopardy


  1. The second ground for the application relates to his leadership role. The accused is a Local level Government councillor at ward 19 and a community leader. He is required to attend to his ward duties and community development service as directed by the District Administration. His continuous detention will gravely jeopardize his duties as ward councillor and his people will miss out on essential government services to be facilitated by him. It is submitted on behalf of the accused that he be granted bail to attend to his duties. As a leader, he says he will not abscond bail.
  2. The State opposed the bail because it involves a serious assault. The summary of facts shows that the accused in the company of other young men attacked the deceased and the deceased’s son resulting in the death of both men. Whilst the continued detention is likely to affect his duty as leader in the community as ward councillor, it is not an exceptional circumstance that justifies the grant of bail. I am of the view that if one is to be blamed, it is the accused himself. He is a government leader and he placed himself in the wrong place to end up being charged with a serious offence. The summary of facts show he surrendered to police himself.
  3. Jeopardising his leadership career is a direct consequence of being charged with a serious offence. It is not an exceptional circumstance which justify the grant of bail. This view was repeatedly expressed in many National and Supreme Court Cases including: Hayara v State (2008), N3488, Philip Maru & Arua Oa v State (2001) N2077, Theo Yausase v State (2011) SC1112 and Felix Kange v State (2016) SC 1530.


Family Needs


  1. The accused is married and has a child. The accused says his wife is not employed in a regular wage earning employment. He is the only breadwinner in the family. His continuous detention will affect their income from his wages and deprive them from meeting their daily needs.
  2. Whilst this is a genuine concern, it is not a consideration that falls into the category of exceptional circumstances. The difficulties his family is now facing is brought upon by himself and is a direct consequence of a serious criminal charge.


Overcrowding Jail Conditions and Covid 19


  1. The accused alleges his health is likely to suffer because of overcrowding conditions at Buimo jail. He fears being affected by Covid 19. He alleges that there is a confirmed Covid 19 case at Buimo jail involving a member of the CIS officer. I note the Covid 19 concerns are genuine. They can be exceptional circumstances depending on the circumstances of each case.
  2. Overcrowding in Buimo and other jails in our country is an ongoing concern, a problem the wider Law and Justice Sector has to find solutions. It is also an administrative matter for the particular and relevant Institution to deal with.
  3. Covid19 pandemic is a real health issue and a major concern of the government. I believe that health and institutional protocols have been issued for managing and controlling the spread of the virus. I have no details of the arrangements at Buimo jail. Neither is there any evidence to suggest otherwise that the situation is life threatening.
  4. Further and more specifically, the accused has not produced any medical or related evidence to show how the overcrowding has personally affected his health and wellbeing. The accused failed to bring relevant evidence showing exceptional circumstances that show his continued detention unjustified. Despite the jail being overcrowded, and his fears of infection from Covid 19, the accused is detained for a very serious offence.
  5. I am not persuaded that bail should be granted.
  6. Furthermore, I am mindful of the recent concerns raised in respect of a long list of outstanding bench warrants yet to be executed. I am not convinced that the accused will not be added to that number.
  7. For the forgoing reasons, the application for bail is refused, and the accused is to be remanded in custody until his case is dealt with.

ORDER


  1. Application for bail is refused.
  2. The accused remain in custody until his case is dealt with.

__________________________________________________________________

Kusip & Associates: Lawyers for the Applicant

Public Prosecutor: Lawyer for the State

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