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Limba v State [2020] PGNC 93; N8305 (12 March 2020)

N8305

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 07 & 08 OF 2020

BETWEEN:
JUKKA LIMBA & OSCAR LAMBING

v

THE STATE

Lae: Dowa AJ
2020: 02^nd & 12^th March

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:
Felix Kange v The State (2016) SC 1530
Fred Keating v The State (1983) PNGLR, 133
Hayara v State (2008), N3488
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 Unido, for the Applicants

DECISION
12^th March, 2020

1. DOWA AJ: This is a joint bail application by the Applicants Jukka Limba and Oscar Lambing. The Applicants are charged with Wilful Murder contrary to Section 229(1) of the Criminal Code Act Chapter 96, pending their committal hearings.
   

Facts

2. The Accused, Jukka is aged 20, a student and comes from Katua village, Bulolo, Morobe Province.
   
3. The Accused Oscar Lambing is aged 19 also a student and comes from Katua village, Bulolo, Morobe Province.
   
4. It is alleged that the accused in the company of each other wilfully murdered one Yapet Gwaking, a male adult on 22^nd December 2019. The alleged offence took place at Katua village, near wire bridge, Bulolo, Morobe Province.
   
5. It is alleged, on morning of Sunday 22^nd January 2019, (meant to be December 2019), the accused were seen drunk at Namba 8 market, Bulolo. Soon after they followed the deceased, who was walking to a church at Katua village. Both accused attacked the deceased along the main road, initially punching him, then the accused Oscar Lambing is alleged to have hit the deceased with a large stone on the head. After the deceased fell to the ground, the accused Zukka Limba dragged him to the nearby bushes and left him there, dead. During this time, the accused Jukka Limba was badly hurt, and the accused Oscar Lambing helped him return home. They were arrested immediately thereafter.
   

Evidence

6. Both accused are applying for bail under Section 42(6) of the Constitution and Section 4 of the Bail Act, pending their committal hearing. The Applicant/Accused Jukka Limba relies on the following affidavits:
   
   1. Bail Application filed 4^th February 2020
   2. Affidavit of Jukka Limba filed 04^th February 2020
   100. Affidavit of John Unido filed 04^th February 2020
   4. Affidavit of Thaddeus Goropo filed 04^th February 2020
   5. Affidavit Notu Pisai filed 04^th February 2020
   6. Affidavit of Brennan Nennek filed on 19^th February 2020
   7. Affidavit of Philip Wago filed on 19^th February 2020
      
7. The Applicant Oscar Lambing has filed and relies on the following documents:
   
   1. Bail Application filed 04^th February 2020
   2. Affidavit of Oscar Lambing filed 04^th February 2020
   100. Affidavit of Notu Pisai filed 04^th February 2020
   4. Affidavit of John Unido filed 04^th February 2020
   5. Affidavit of Kas Kepi filed 19^th February 2020
      
8. The Accused were charged on 15^th January 2020 and had been in custody since, pending committal hearing.
   

The Law

9. 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. 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.”
   

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.

Guiding Principles

10. 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:
    
    • (1) Only the National Court and the Supreme Court has jurisdiction to grant bail to persons charged with wilful murder under Section 4 of the Bail Act.
      
    • (2) An applicant charged with wilful Murder (or treason) enjoys no presumption in favour of granting of bail under Section 42(6) of the Constitution).
      
    • (3) If the State opposes bail, including a person charged with wilful murder, it should establish that one of the circumstances in Section 9(1) of the Bail Act apply. His Honour Kandakasi J (as he then was) in the case of Philip Maru & Arua Oa -v-The State ( 2001) N2042 stated that the Bail Authority can take into account other and further considerations apart from those in section 9 (1) and listed a number of them. In Felix Kange – v- The State (2016) SC 1530, the Supreme Court endorsed those additional considerations that the Bail Authority can take into account.
      
    • (4) If one or more of the circumstances in Section 9(1) apply, the Court is not obliged to refuse bail. The Bail Authority still has a discretion whether to grant or refuse bail.
      
    • (5) The onus is on an applicant charged with wilful murder to convince the Court with evidence showing exceptional circumstances that make his continued detention unjustified.
      
11. The Accused advanced the following reasons for the grant of bail:
    
    1. Innocence of the crime
    2. Education in jeopardy
    100. Overcrowding at holding jail at Buimo
    4. Violations of Constitutional Rights
       
12. The State opposed bail because the alleged crime involved a serious assault, a consideration under section 9 (1) of the Bail Act.
    

Proclaimed Innocence

13. Both accused asserted they are innocent of the criminal offence charged. They have filed various affidavits and statements to establish this ground. During the hearing I reminded Counsel for the applicants that innocence is not a relevant consideration. Counsel submitted that the evidence the accused provided was to refute the facts shown on the Summary of facts attached to the information. Interestingly, even the police informant who charged the accused filed on affidavit, attesting to the behaviour of the two accused as being good and recommended for grant of bail.
    
14. I have considered their submissions carefully. I am not convinced that proclaimed innocence falls within the category of matters showing exceptional circumstances. 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 page:
    

“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.”

15. I am well guided by the wisdom of these reasonings. Whilst the accused remain innocent until proven guilty, there is no similar presumption for grant of bail for a serious charge of wilful murder.
    

Education in Jeopardy

16. The accused are both students. The applicant, Zukka Limba is a grade 12 student at Busu Secondary School. For disciplinary reasons, he was suspended from the school for one year. In the letter of suspension, dated 18^th March 2019, he was to be of good behaviour during the time of suspension.
    

The Busu Secondary School provided a second letter dated, 24^th February 2020, stating that the accused Zukka Limba is a student. It is difficult to comprehend, how a school can affirm the applicant being a student whilst being locked up in jail. Be that as it may, he remains a student for the purposes of this Application.

17. The accused Oscar Lambing is a student at St. Peters Catholic Primary School, Bulolo, doing Grade seven (7).
    
18. It is submitted on behalf of the accused that they be granted bail. Any prolonged detention would jeopardise their education and their future.
    
19. The State opposed the bail because it involves a serious assault. The summary of facts show that the accused attacked the deceased with offensive weapons. The attacks were repeated and deliberate. Whilst the continued detention are likely to jeopardise their education, 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 themselves. They are students and they placed themselves in the wrong place to end up being charged with a serious offence. The summary of facts show they were drunk on the morning of the alleged murder.
    
20. Zukka Limba was on suspension for disciplinary action. In the letter of suspension, he was told to be of good behaviour and not to get involved in fights. From the evidence presented, he was involved in a fight with some youths at the relevant time. These facts do not help the applicants in their bid for bail.
    
21. Jeopardising their education is a direct consequence of being charged with a serious offence. It is not an exceptional circumstance which justify the grant of bail. This 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.
    

Overcrowding Jail Conditions

22. The accuseds allege their health is suffering because of overcrowding conditions at Buimo jail. The accuseds produced a letter from the Jail Commander dated 2^nd March 2020 confirming the poor conditions of the jail. She said the jail conditions are likely to cause an outbreak of disease and she recommended the accuseds be granted bail
    
23. 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.
    
24. For the present applications, the accuseds have not produced any medical or related evidence to show how the overcrowding has personally affected their health and wellbeing. The accuseds failed to bring relevant evidence showing exceptional circumstances that show their continued detention unjustified. Despite the jail being overcrowded, the accuseds are detained for a very serious offence.
    

Infringement of Human Rights

25. The accused, also submitted that their human rights guaranteed under the Constitution are infringed. It is alleged that visits by relatives were denied, they were not brought to hospital to seek medical treatment and the jail is in a bad condition, not fit for human habitation. At the time of hearing, I pointed out to counsel for the accused, that any complaints for human rights violations can be dealt at a separate forum. The generalised complaints by the accused do not amount to exceptional circumstances showing their continued detention unjustified.
    
26. 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 accuseds will not be added to that number.
    
27. For the forgoing reasons, the application for bail is refused, and both accuseds are to be remanded in custody until their cases are dealt with.
    

__________________________________________________________________

Niugini Lawyers: Lawyer for the Applicants

Public Prosecutor: Lawyer for the State