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Temo v State [2021] PGNC 121; N8870 (16 June 2021)

N8870

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 155 OF 2021

In the matter of an Application for Bail pursuant to section 6 of the Bail Act Chapter 340 and Section 42 (6) of the Constitution

BETWEEN
SIMON TEMO
Applicant

AND
THE STATE
Respondent

Mt Hagen: Toliken, J
2021: 1^st, 16^th June

BAIL - PRACTICE & PROCEDURE – Application for bail – Wilful murder – No presumptive right to bail – Exceptional circumstances need to be shown – Unreliable water supply at Corrective Institution, business interest and medical condition – Whether exceptional circumstances for grant of bail – Constitution, s 42(6).

PRACTICE & PROCEDURE – Considerations for refusal of bail – Serious assault – Applicant’s own safety – Whether considerations under Section 9 of Bail Act are exhaustive – Likelihood of tribal war resulting in more loss of life and destruction to property – Whether ground for refusal of bail in interests of justice – Bail Act, ss 4,6, 9.

Cases Cited

Re Fred Keating [1983] PNGLR 133
Rolf Schubert v The State [1978] PNGLR 394
Maraga v The State (2010) SC1573
Yasause v The State (2011) SC 1112
The State v Siminzi (2010) N4060
Pawa v The Independent State of Papua New Guinea (2009) N3580

Counsel

E Sasingian, for the Applicant
J Kesan, for the State

RULING

16^th June 2021

1. TOLIKEN J: The applicant has recently been charged, together with two others, with the willful murder of one Imelda Tupi Tiamanda on 08^th May 2021. He is currently going through his committal process in the District Court at Mt. Hagen. He applied for bail and I heard his application at Baisu on 01 June 2021. This is my ruling.
   

Alleged Factual Background

2. The brief pertinent factual allegations pertaining to the Applicant’s substantive case are that the deceased was the wife of the Applicant. She was attending the University of Goroka.
   
3. On 08^th May 2021 the Applicant drove down to Goroka from Mendi where he was living and took her back to Mendi. And whilst back in Mendi they had an argument, in the course of which he was assaulted the deceased. He hit her on her head with a hard object fracturing her head resulting in her death. He then kept the body hidden at their residence.
   
4. On 10^th May 2021, the Applicant wrapped the body in a canvass and put it in a Toyota Five-Door Landcruiser with the help of his two co-accused. He then drove the body for Mt. Hagen with his accomplices. They passed the Check Point at Kagul, on the border of Southern Highlands and Western Highlands Provinces and continued on towards the ASF Check Point, some 3 kilometers from the border into the Western Highlands. There they noticed two Kaupena-based policemen manning the Check Point and quickly turned around and headed back towards the Kagul Check Point. The two policemen quickly gave chase while alerting their colleagues at Kagul to close the road, which they did, thus making it difficult for the Applicant to pass.
   
5. The officers caught up with the Applicant and instructed him and his accomplices to step out of the vehicle. They searched the vehicle and found the body of the deceased wrapped in a blue canvass. The Applicant and his accomplices were taken to Mt. Hagen together with the deceased’s body. The body was placed in the morgue while the Applicant and his accomplices were asked to book into a guest house while the police contacted their colleagues in Mt. Hagen. The Applicant and his accomplices were later taken to the Police Station and charged.
   

Grounds for Bail

6. The applicant relies on four grounds for his application for bail. These are:
   
   1. Serious medical condition
   2. Lack of water and unhygienic conditions at the Baisu Corrective Institution thus endangering his welfare and health
   3. Inability of the Institution to maintain Covid – 19 Protocols
   4. Business interest.
      
7. He deposed to an affidavit wherein he annexed the following documents, among others:
   
   • (i) A medical report of Dr. Jack Amana of the Sir Buri Kidu Heart Institute at the Port Moresby General Hospital dated 28^th May 2021
   • (ii) A medical report by Dr. Mary Kaevakore of the NCD Provincial Health Authority dated 20.05.21

(iii) A copy of a Contract between the Independent State of Papua New Guinea and Complete Star Building Construction Ltd.

8. He further relied on affidavits by the following persons:
   
   • (i) Dr. Veronica Niltainde of Hohola Stage 2, National Capital District
   • (ii) Superintendent Ranson Tiki of Baisu Corrective Institution
   • (iii) Bishop Reverend Stanley Buka of Mopa Village, Karinz LLG, Mendi, Southern Highlands Province
   • (iv) Joseph Winpe of Mopa Village, Mendi Munihu, Southern Highlands Province.
     
9. The State opposed bail principally on the grounds that the offence the applicant is charged with consisted of a serious assault resulting in the death of another person, and for the Applicant’s own safety. (Section 9 (1)(c)(i)(e) of the Bail Act). Furthermore, and more importantly, the grounds relied upon by the Applicant are not exceptional circumstances that should warrant the grant of bail given that he is charged with wilful murder, a crime which, by constitutional dictate bail is not readily available.
   
10. The State tendered an affidavit by the deceased’s father Mr. Tupi Tiamanda to support its objection.
    

The Law

11. The Applicant is charged with wilful murder, and as such, he enjoys no presumptive right to bail under Section 42 (6) of the Constitution. This, however, does not mean that he cannot apply for bail - he can - but his right to apply will be founded on Sections 4 and 6 of the Bail Act Ch. 340, and subject to the considerations under Section 9 of the Bail Act. (Re Fred Keating [1983] PNGLR 133; Yasause v The State (2011) SC 1112).
    
12. Since the constitutional presumption to the right to bail does not apply to persons charged with wilful murder or treason, the onus is therefore on such an applicant to show that there are exceptional circumstances that warrant the grant of bail. If the State opposes bail, it should establish that one of the circumstances in Section 9(1) of the Bail Act apply. (Rolf Schubert v The State [1978] PNGLR 394; Maraga v The State (2010) SC1573; Yasause v The State (supra))
    

Issues

13. What falls to be determined by the Court is whether the grounds relied upon by the Applicant are exceptional and whether the Applicant ought to be refused bail in the interests of justice. I now turn to consider the Applicant’s grounds for his application.
    

Grounds 2 & 3 – Lack of Water at Gaol Facility

14. Grounds 2 and 3 are related to conditions at the Baisu Corrective Institution and therefore can be dealt with together. I shall deal with them first.
    
15. For these grounds the Applicant relied on his own affidavit and that of Superintendent Ranson Tiki, the Acting Gaol Commander of the Baisu Corrective Institution.
    
16. The Applicant deposed that he experienced a mild heart attack in 2018 and attended the Sir Buri Kidu Heart Institute at the Port Moresby General Hospital where he was seen by Heart Specialist Dr. Jack Amana. He annexed a Medical Report by Dr. Amana dated 28^th May 2021 in support of this.
    
17. He said he takes daily medications to address his high cholesterol levels, but because of water problems at the Baisu Corrective Institution, he cannot take his medications. Furthermore, he often takes a cold shower whenever he feels the onset of a heart attack to ease the tension on his body. That he cannot do now due to lack of water.
    
18. Superintendent Timi, confirmed that the gaol is indeed facing water issues and they can go without water for one or two days. The unreliable water supply was caused by the construction works on the Kagamuga/Hagen Road existing water pipes that supply the facility were damaged. His enquiries with PNG Water in Mt. Hagen have not yielded any good result.
    
19. Because of the water issues at the facility, the Applicant further asserted that the facility cannot adequately comply with the National Pandemic Protocols to prevent infection from Covid-19. The situation therefore poses a serious health risk for him, so he says.
    
20. And so, the questions is: are these exceptional grounds? I think not. Even though the facility may indeed sometimes not receive water, the court has not been told that the Applicant has in fact been denied access to drinking water let alone water to shower on any specific occasion. And the Acting Commander does not say in his affidavit that he is completely incapacitated - financially or otherwise - to provide water for the Applicant and other inmates.
    
21. The Applicant is also in fear of contracting Covid-19. The Court has not been told, and is not aware of any infection at the facility here at Baisu. Moreover, I have not been told that the gaol authorities have not put in place protocols to protect inmates and officers and their families. I have expressed elsewhere, when applicants premised their bail applications on this ground, that until and unless the facility records a case, inmates are safer in custody than they would be outside in the community where the chances of infection are higher and real.
    
22. In any case the Gaol Commander is legally and morally obliged to ensure the welfare of inmates or persons in his care and where situations like this occur, he must, and I am certain that he does take corrective measures.
    
23. I am not satisfied therefore that the water supply situation at Baisu is such that it can be regarded as an exceptional circumstance at this stage to warrant the grant of bail to the Applicant.
    

Ground 4: Business Interest

24. The Applicant deposed that his company, Complete Star Constructions Ltd, had been awarded a contract by the State for the demolition of the existing grandstand and the construction of a new one at the Tente Rugby League Field in Mendi which will host the PNG Games in November this year. The company has already received mobilization funds for the project and work had commenced three months ago. He is the sole signatory to the company’s accounts. He fears that the work will not be completed if he remains in custody. It is therefore in the public interest that he be granted bail to ensure that the project is completed and delivered before the Games begin in November and also to ensure that the 50 – 100 people engaged in the project are paid.

25. Business interest, in my opinion, even if substantial, is not by itself an exceptional circumstance.

26. The Applicant may be the sole signatory to his company’s accounts, but there is absolutely nothing stopping him from signing cheques from custody or from assigning the power of attorney to someone to manage the affairs of the company while he is in custody. Furthermore, the actual work shall be done, and is being done, I believe, by professionally and technically qualified people. I do not for moment believe that the Applicant is physically needed for them to carry out their work. No this also not an exceptional circumstance.

Ground 1: Medical Condition

27. The Applicant’s main ground, however, is his health condition. As I briefly alluded to above, he deposed that he is suffering from a heart condition. In 2018 he suffered severe chest pains and was examined by Dr. Amana of the Sir Buri Kidu Heart Institute. He had also previously suffered some head injuries which affected his body and heart. Dr. Amana found that he had suffered a mild heart attack. Since then, the Applicant deposed that he had been very cautious and needed to be close to his doctors in case of an emergency. And the water situation at Baisu will only exacerbate his condition if he is to remain in custody.

28. In an open letter dated 28^th May 2021 (Medical Report), apparently prepared in support of this application, Dr. Amana confirmed seeing the Applicant at the Heart Institute in 2018. Dr. Amana further said:

He [Applicant] came with lightheadedness, dizziness, and headaches with a blood pressure of 200/110mmHg. He was treated with Nifedipine 20mg “o” mane and enalapril 10mg “o” mane.

Electrographically he was in sinus rhythm with a rate of 80bpm, left axis deviation and voltage criteria for left ventricular hypertrophy. There were some T waves in the in the lateral leads.

The echo showed normal systolic function and functions with mild left ventricular hypertrophy and normal wall motions.

I did his biochemical analysis which showed high cholesterol level and he was started on Simvastatin 20mg “o” mane.

During his treatment the following year he developed gastric reflux coming in with epigastric pains and he was advised against acidic food and less stress. We apparently had to start him on gastrogel and later on omeprazole 20mg “o” mane.

On specific interrogations he did sustain a head injury in 2016 requiring him to be hospitalized due to subdural hemorrhage. He was unconscious for two weeks before he woke up from his concussion. He still suffers from chronic headaches and dizzy spells.

With his medical issues therefore, he will need to have regular blood pressure and cholesterol checks by the appropriate medical team and ideally his dietary restriction should be monitored from prison. However, with his background head injury and mild coronary artery disease which could be detrimental to him and may even cause sudden death, I will be leading towards a bail on his medical conditions.”

29. By letter dated 20.05.21 (Medical Report), Dr. Mary Kaevakore of the Gerehu General Hospital confirmed that the Applicant is suffering from Essential Hypertension and Hyperlipidaemia (High Cholesterol). He was first seen at the 6 Mile Urban Clinic in 2017 and is currently on treatment for his high blood pressure and high cholesterol.

30. Dr Kaevakore also confirmed that the Applicant suffers from intermittent gastritis. He was put on a strict diet and medication if pain increases. His dietary regime includes small frequent meals, fruits and vegetables and a lot of water and reduction in fatty foods and frizzy drinks. Medication is normally cimetidine 200mg twice a day and 2 tablets of gastrogel, two – three time daily when his condition flairs up.

31. Lastly, the Applicant suffers from chronic headaches and dizzy spells which is attributed to a severe head injury suffered on 25/06/2016 where he was admitted to the Mendi General Hospital for a week. He is maintained on regular analgesics.

32. Dr Kaevakore is of the view that the Applicant needs to take his appropriate medications and also needs to be reviewed by a health professional.

33. Given the above, are the Applicant’s medical conditions exceptional to warrant or the grant of bail?

34. There have been cases where detainees who have been charged with wilful murder had been granted bail because of the medical conditions.

35. A case in point is The State v Siminzi (2010) N4060 which Mr. Sasingian of counsel for the Applicant helpfully cited to the court. There the applicants were charged with wilful murder and were held here in Baisu. They applied for bail on the grounds that they were suffering from serious illnesses that required urgent medical treatment, and deteriorating living conditions and overcrowding which posed serious threats to their health and lives. The State did not oppose bail but required strict conditions if bail were to be granted.

36. The applicants there were diagnosed to be suffering from peptic ulcer and chronic renal decease, conditions which they had been suffering from well before their incarceration. They were both also suffering from high blood pressure or hypertension resulting in bouts of dizziness and fainting. According to a Dr. McKup their conditions were aggravated by their detention.

37. His Honour Makail J, expressed the opinion that deteriorating ill-health or medical condition may amount to an exceptional circumstance for one who is charged with wilful murder and granted the applicant’s bail.

38. His Honour relied on his earlier ruling in Pawa v The Independent State of Papua New Guinea (2009) N3580. Pawa was charged with wilful murder and was remanded here at Baisu. He was certified by a doctor (Dr. McKup) to be suffering from high blood pressure. He was a patient of Dr. McKup for several years before his incarceration. Prior to moving his application, he was seen by Dr. McKup at the Mt. Hagen Police cells and recorded a consistent BP of 150/100mmHg. According to Dr. McKup, the applicant’s condition was most likely caused by renal disease and further compounded by stress due to detention, poor sanitation and hygiene in the cell block.

39. Moved by Dr McKup’s medical report, His Honour opined that hypertension is a specific type of illness, quite unlike malaria or headache, where treatment is and can be readily available. Rather it requires specialist treatment by a doctor and the applicant’s continued detention will only worsen his condition. Hence, Pawa was granted bail.

40. I have heard and considered the arguments my Mr. Sasingian and Mr. Kesan.

41. There is no question that serious medical conditions can amount to an exceptional circumstance. This is particularly so when the condition is life threatening and therapy and medication is or cannot be accessed or readily available to an applicant while in custody, or where the applicant requires close observation and monitoring by a doctor. Whether an applicant will be granted bail in such circumstances will depend on the strength and currency of the expert medical opinion and ultimately on the court’s exercise of discretion on the question of whether or not the continued detention of the applicant is in the interests of justice or justified.

42. In the instant case, there is no question that the Applicant is indeed suffering from a mild case of coronary artery disease, which, if not managed and controlled can be fatal. He suffers from hypertension and high cholesterol which I believe are a bad combination for people with this condition. Further to that, he also suffers from bouts of gastritis, chronic headache and episodes of dizziness. The Applicant is on medication for all his diagnosed conditions.

43. I am cognizant of Dr. Amana’s opinion and his view that given his condition which can prove fatal, the Applicant ought to be granted bail. What strikes me, however, is that the good doctor was commenting on his observations and diagnosis when the Applicant presented himself to the Heart Institute in 2018 and a year later when he saw him again and diagnosed him with gastritis.

44. Dr. Kaevakore’s report does not add anything that we do not already know from Dr. Amana’s report except to confirm that the applicant is under medication and on a strict dietary regime.

45. What neither doctor does not tell us is whether or not the Applicant has attended their medical clinics lately. This is important because if the court is to release an applicant charged with wilful murder on bail on the basis of a worsening medical condition, then it must be shown that the condition has deteriorated and cannot be adequately and professionally contained in the absence of close observation and monitoring by a doctor or without the use of specialist medical equipment that otherwise would not be available in prison.

46. Dr. Amana does not say in his report that the Applicant’s condition has worsened since he last saw him, but judging by the tone of his report it appears obvious to me that he had not seen him since his first visit to the Heart Institute three years ago in 2018 and his last visit in 2019.

47. Dr. Kaevakore also does not say in her report if the Applicant consulted her or her clinic personally either. If the good doctor based her report on business records held by the Gerehu or Mendi General Hospitals for the Applicant, she does not say so. It is unclear to me therefore where she got her information from. Be that as it may, the point to stress here is that she also does not say that she has seen the Applicant personally recently and that his conditions have deteriorated to such an extent that his continued detention will threaten his life.

48. Moreover, I believe that the medicines prescribed and supplied to the Applicant to control his hypertension and cholesterol level are self-administered and at the most supplied to last him several weeks. He has not told the court that he does not have an adequate supply or that he has been prevented from receiving or procuring them by the goal authorities here at Baisu.

49. If I were shown that the Applicant’s conditions had deteriorated since he last saw his doctors and that he cannot be provided with the professional help and equipment to preserve his health and life, or that he cannot have access to or has been prevented by gaol authorities from accessing his medications, or that he cannot maintain his dietary regime while in custody, then by all means a good case would have been made out for his release on bail.

50. On the evidence before me I am not convinced that the Applicant’s prevailing or existing conditions amount to an exceptional circumstance.

Applicant’s Own Safety.

51. Finally, the State also opposed bail on the grounds that the offence consisted of a very serious assault where a life has been lost and for Applicant’s own safety. (Section 9 (1)(c)(i) (e) of the Bail Act).

52. The State contended that the situation is still very volatile and there is no guaranty that violence may not erupt if the deceased’s relatives decide to retaliate if the Applicant were to be granted bail.

53. The State relied on an affidavit by the deceased’s father Mr. Tupi Tiamanda. Mr. Tiamanda deposed that the manner in which his daughter was killed provoked immediate tension and anger among his immediate relatives and tribesmen. Had he not intervened to contain the situation, his tribesmen of Longo Village could have taken the law into their own hands resulting in a full-scale tribal war with the Applicant’s Karinz tribesmen.

Mr. Tiamanda deposed that the opposing tribes or parties live on the fringes of Mendi Town, and the release of the Applicant will no doubt spark a tribal fight which has the potential of causing much disruption and chaos in Mendi Town.

54. Mr. Sasingian submitted that the situation has been brought under control. He relied on an article in May 09^th issue of The National Newspaper where the Southern Highlands Provincial Police Commander, Chief Supt Martin Lakari is quoted to have commended the deceased’s relative for not taking the law into their own hands. Supt Lakari also said that his men are on alert and prepared for any outbreak of violence.

55. It is trite law that even if the State has shown the existence of one or more ground under Section 9 of the Bail Act to warrant a refusal of bail, the court still has a discretion to grant bail if it is of the view that the continued detention of an applicant is not justified. (See Re Keating (supra.)

56. Conversely, it has been held that the grounds under Section 9 are not exhaustive. Kidu CJ in Re Keating, at p.135 had this to say on this point:

I hold the view that s. 9 of the Bail Act 1977 does not contain all considerations that are relevant as to whether bail should be refused in the interests of justice. Section 42(6) of the Constitution does not say that the phrase interests of justice may be defined by an Act. There are two reasons why the phrase must be given a very wide meaning and application:

(a) It says “interests” - i.e. the plural of the word interest is used; and

(b) Section sch. 1.5(2) says that ‘All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning.’

Justice is a two-edged sword and cannot possibly be confined to mean those considerations enumerated in s. 9(1) of the Bail Act 1977. For instance, in my opinion, it would be in the interests of justice to refuse bail to a person known to be a habitual criminal, although s. 9(1) does not say so.

57. I agree with the Late Chief Justice that the grounds in Section 9 of the Bail Act are not exhaustive. Hence where the State shows with credible evidence that it would not be in the interests of justice to release a remandee on bail despite the non-existence of any of the grounds under Section 9 of the Bail Act, bail can still be refused at the court’s discretion.

58. The huge publicity and torrent of public commentary this case may have attracted is not a reason to refuse bail. What is more compelling is the very real threat that a tribal warfare might erupt if the Applicant is released on bail. Mr. Tiamanda is only one man among his relatives and tribesmen and may not be able to contain or restrain them should they decide to avenge the death of the deceased – something which is not out of the ordinary in the society which the opposing tribesmen come from.

59. Furthermore, Chief Supt Lakari’s assurance that his men are on alert and prepared for any outbreak of violence is no assurance at all when considered against events of late in Mendi Town where the police were rendered completely powerless to contain a situation which resulted in much destruction to properties including two court houses and an Air Niugini plane.

60. Hence, where the grant of bail to an accused has the potential of provoking large scale violence such as a tribal warfare and collateral damage or destruction to infrastructure or even more loss of life, bail ought to be refused in the interest of justice.

Conclusion

61. The instant case is a case in point and therefore bail ought to be refused, not only for this reason but also for the accused own protection and safety. In conclusion bail is refused for the following reasons:

1. The Applicant, having been charged with wilful murder, has not shown that the grounds he relied upon for grant of bail including his medical condition are exceptional circumstances.
   
2. His offence consisted of a serious assault resulting in the death of another person. (Section 9(1) (1)(c )(i), Bail Act)
   
3. It is for his own protection and safety that he should be remanded in custody. (Section (1)(e ), Bail Act)
   
4. There is a real potential of violence and tribal warfare between his tribesmen and the deceased’s tribesmen if he were to be released on bail.
   

Orders.

1. Bail is refused.
   
2. The Applicant is to be remanded in custody while going through his committal proceedings in the District Court.

__________________________________________________________________
Kamen Lawyers: Lawyers for the Applicant
P Kaluwin, Public Prosecutor: Lawyer for the State