N8980

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR(APP) NO. 178 OF 2021

IN THE MATTER OF AN APPLICATION FOR BAIL
Pursuant to Section 4, 6 & 9 of the Bail Act
Section 42(b) of 61 of the Constitution of Papua New Guinea

BETWEEN:
LIVAI SONGAI
Applicant

AND
THE STATE

Aitape:  Rei, AJ
2021:  25th June 

BAIL – Nature of rights – Constitution s.42(b) – Bail Act s.4, 6 and 9 – Exercise discretion whether to grant or refuse bail – public interest consideration.

PNG Cases Cited

Gordon Kairu -v- The State (2021) N8967
Jethro Paine -v- The State 14th & 17th May 2021 per Berrigan J
Fred Keating -v- The State [1983] PNGLR 133
Paul Makova, Cosmas Mave, Joe David and Willie Seneka -v- The State (2010) N4038
Posanan & David Koyama -v- The State
Malaki Korgo and Joe Alus -v- The State (1996) N1554 
Paul Guam -v- The State (1999) N3576
Thomas Maskus (2009) N1931
Bail Application by Bernard Urian (2009) N3999

Legislation

Section 9 Bail Act
Section 299(1) Criminal Code Act
Bail by Bobby Selan (2009) N3690
	
Counsel

Mr. P. Moses, for the Applicant
Ms. T. Aihi, for the Defence/Respondent

25th June, 2021

1.	REI AJ: BACKGROUND: Livai Songai the applicant filed an application on the 24th June 2021 seeking to be granted bail pursuant to Sections 4, 6 & 9 of the Bail Act and Section 42(b) of the Constitution of Papua New Guinea.

2.	In support of his application the applicant filed the following affidavits:

(i)	Affidavit of Livai Songai filed 24th June 2021
(ii)	Affidavit of Freddy Songai Amau Guarantor filed 24th June 2021
(iii)	Affidavit of Jonathan Kale Guarantor filed 24th June 2021

3.	The Guarantor Freddy Songai Amau is the father of the applicant, charge of wilful murder.

4.	Annexure “A” of the Affidavit of the applicant is the Information and Annexure “B” is a Summary of the Facts.

5.	It is noted from the Information that the applicant was charged and stands charged with the offence of wilful murder pursuant to Section 299(1) of the Criminal Code Act.

6.	The Information reads:

“with intent to cause a death to a person namely Billy Metta unlawfully killed him with a short, both sides sharpened grass knife and stabbing him on his right lateral hip killed him.”

7.	From the Statement of Facts, it is alleged that the applicant was drunk, chased the deceased and stabbed him with a grass knife around the area of his stomach.  The deceased later died at the Wewak General Hospital.

8.	After the incident, the Statement of Facts further says that the accused went into hiding until sometimes later when he was arrested, charged and detained.

9.	He then acted alone.

SUBMISSIONS

10.	Mr. P. Moses for the applicant submitted in support of the application that the applicant be admitted to bail for the following reasons:

(a)		The spread of COVID 19 in the country is quite alarming. Within Vanimo CIS there is history of infection of inmates where some of the remandees and prisoners have already been infected.  There is a danger that I may be infected if I am kept at the CIS facility because there is no isolation facility.

(b)	There is over-crowding at the Vanimo CIS facility.  Due to increasing number of committal and summary cases and that there has been no National Court circuit for the last 12 months, the facility to keep remandees cannot cater for additional suspects who are brought in.  I may become an added problem to the already over-crowding facility.

(c)	I am in my youth and young.  In my past twelve (12) months in custody at Vanimo CIS, I have been subjected to bad influence which I see will live with me for a long time.  I do not wish to return to Vanimo CIS.  I would like to be granted bail so that I can remain with my parents at Prou village until the next sitting of the National Court here in Aitape.

(d)	I deny any involvement in the allegation of murder of the deceased.  The deceased was pursued by the villagers as he was accused of sorcery.  I was at the burial of my sister and did not participate in the assault of the deceased.

11.	Ms. T. Aihi opposed the application on the basis of Section 9(1)(c)(ii) of the Bail Act and also submitted that a serious assault took place resulting in the death of the deceased.

12.	She submitted further that the applicant has shown no exceptional circumstance that warrants the grant of bail.

13.	Both Counsels however concede that bail is a discretionary matter and that the Court has discretion to grant bail or refuse bail.

DECISION

14.	Having handed down my decision in the case of Shane Awas Junior -v- The State, I do not think that the reasons advanced by the applicant warrant the grant of bail.

15.	The applicant did not demonstrate in the reasons provided by him in his affidavit any exceptional circumstances that he should be granted bail.

16.	It does not matter whether one is at home, school, hospital or prison, COVID 19 is here to stay and is contractable anywhere therefore this is not an exceptional circumstance for which bail should be granted.

17.	In the case of Gordon Kairu -v- The State, which I heard in Vanimo on the 19th & 21st day of May 2021, I relied on the reasons for decision in the recent case of Jethro Paine -v- The State 14th & 17th May 2021 where Berrigan J said:

“Finally, the applicant contends that he is concerned that if there is outbreak of covid in detention all inmates will be infected because of social distancing is poor.  I accept the risk of contracting covid whilst in detention is an increased risk, but this must be balanced against all the circumstances of the case, in particular the nature and seriousness of the alleged offence and s.9 considers the risk of covid alone cannot constitute on exceptional basis warranting bail.  If that was the case then all inmates, regardless of the seriousness of their alleged offence and other considerations would be entitled to bail.”

18.	It is also not an exceptional circumstance that bail should be granted because of obvious overcrowding in gaol.

19.	The law is alleged to have been broken in a serious manner and the applicant having been directly implicated must be held in custody as a remandee until the charge of wilful murder is heard.

20.	It is the constitutional and statutory duty of the State to ensure there is no overcrowding in prison and there is enough room to accommodate both remandees and inmates.

21.	The applicant also deposed in his affidavit that if he is granted bail, he will stay with his parents until the case is completed.

22.	This is also not an exceptional circumstance.  If he was an obedient child, he could not have been involved in the alleged crime.

23.	Finally, he says he will raise the defence of alibi during the trial of the matter which has the prospects of being successful.

24.	This is not a civil (suit) case where the outcome of proceedings can sometimes be predicted such that an interlocutory interim restraining order can be granted accompanied with the filing of an undertaking as to damages.  

25.	This is a criminal case involving allegations of the most heinous crime of wilful murder grounded on Section 299(1) of the Criminal Code Act and the outcome for which is unpredictable as it is noted from the Brief Statements of Facts that eyewitnesses saw what then happened.  Furthermore, he went into hiding after the death of the deceased.

26.	While I do not pre-empt the result of the trial because I am not in a position to do so, it is not proper that, because, the defence of alibi is to be raised, it creates an exceptional circumstance.

27.	This is a wilful murder case which involves an allegation that the applicant used a dangerous weapon to stab and did stab the deceased on his right lateral hip causing grievous bodily harm resulting in the death of the deceased.  

28.	The case of Fred Keating -v- The State [1983] PNGLR 133 makes it abundantly clear that bail is not to be granted in a wilful murder case unless it is proven on the balance of probability, that an exceptional circumstance exists.  As was said by Berrigan J in the case of Jethro Paine Benny -v- The State, “the Court’s discretion to grant bail in a wilful murder case is very limited.”  I might add that it is non-existent unless otherwise an exceptional circumstance(s) exists.

29.	There being no exceptional circumstance shown in this case, bail is refused, and the applicant be remanded in custody unless circumstances change for him to be granted bail.

GUARANTORS

30.	Apart from the above observations, I note that one of the guarantors is a relative of the accused.  He is Freddy Songai Amau, the father of the applicant.

31.	This fact alone poses a serious threat to the application itself because of apprehension of bias and conflict of interest.

32.	I refer to the case of Paul Makova, Cosmas Mave, Joe David and Willie Seneka -v- The State (2010) N4038.

33.	In that case, His Honour Kawi, J referred to the Supreme Court Case of Charlie Posanan & David Koyama -v- The State and quoted the following passage with respect to guarantors:

“We have noted that the proposed guarantors are all related to the applicants.  On these grounds, we are of the view that there may be some apprehension of bias and conflict of interest involved. The risk of absconding bail might be much higher as compared to a guarantor who was a neutral person”.

34.	The Supreme Court in that case also relied on the case of Malaki Korgo and Joe Alus -v- The State (1996) N1554 and Paul Guam -v- The State (1999) N3576.

35.	In the case of Paul Makovu, Cosmos Mave, Joe David and Willie Seneka -v- The State (Supra) His Honour Kawi, J with reference to an unreported case delivered by himself said:

“As much as possible applicants for bail must be very careful when nominating relatives and family members as guarantors.  Persons who accept to be guarantors should be neutral persons.  I do accept that because these are all family members there is a reason to argue that there may possibly be some apprehension of bias and conflict of interests involved.  The fear of absconding bail is real here than if a neutral person was nominated.  I would not approve the two guarantors as proposed”.

36.	He then went on and said that:

“I would adopt and apply those comments here.  The chances one of the guarantors, Julius Dede placing himself in a conflict of interest situation is very real here than if neutral persons were nominated.  There is also the possible apprehension of bias on his part which I find is real here than in the case of Augustine Tori who I find is more neutral person.  I doubt that Julius Dede will do any better job now than he was before the commission of the crime.  Despite their many undertakings I am not convinced at all the accused persons will ever listen to their guarantors or bring themselves under their restraining influences.  If the accused persons were law abiding, “honest, decent and peace loving” citizens as they claim they are, then they should not have been involved in the alleged killing of another person.”

37.	There is clear evidence that Livai Songai is the son of this guarantor.  The prospect of the guarantor Freddy Songai placing himself in a position of conflict of interest situation is very real in as far as the allegation of wilful murder in this matter is concerned.  

38.	I am therefore hesitant in granting bail.  Hence the application for bail filed by the applicant Livai Songai is refused and that the said Livai Songai is to remain in custody until the trial of the matter unless he makes a fresh bail application.

39.	The applicant is, however, at liberty to reapply for bail should circumstances change – Re Thomas Maskus (2009) N1931 which was applied in re Application for Bail by Bobby Selan (2009) N3690 and Re Bail Application by Bernard Urias (2009) N3999.

40.     The final orders are as follows:

(i)	bail refused
(ii)	the accused/applicant is to be remanded in custody until the trial of the matter.

40.	The change of circumstances and the charge in circumstances must relate to the reasons for refusal of bail under Section 9 of the Bail Act.

______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Applicant