N9094

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR(APP) NO. 177 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:
SHANE AWAS JUNIOR
Applicant

AND
THE STATE

Aitape:   Rei, AJ
2021:  25th June

BAIL – application for bail - grounds of – covid 19 and overcrowding in jail – prospect of success at trial - whether these are exceptional circumstances warranting offender to be released on bail - grounds advanced by applicant do not amount to exceptional circumstances – application for bail refused – applicant remanded

Cases Cited

Edmund Gordon Kairu -v- The State (2021) N8967
Jethro Paine -v- The State 14th & 17th May 2021 Berrigan J 
Fred Keating -v- The State [1983] PNGLR 133
Paul Makova, Cosmas Mave, Joe David and Willie Seneka -v- The State (2010) N4038
Charlie Posanan & David Koyama -v- The State 
Malaki Korgo and Joe Alus -v- The State [1996] N1554 
Paul Guam -v- The State [1999] N3576.
Bail by Bobby Selan (2009) N3690

Legislation

Section 9 Bail Act
Section 299(1) Criminal Code Act

Counsel

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

DECISION

25th June, 2021

1.	REI AJ: Shane Awas Junior, the Applicant herein filed an application for bail pursuant to Section 4, 6 & 9 of the Bail Act and Section 42 (b) of the Constitution of Papua New Guinea.

2.	It was filed on the 24th of June 2021 together with the following affidavits in support:

(i)	Affidavit of Shane Awas Junior filed 24th June 2021
(ii)	Affidavit of Guarantor Councillor Boniface Amau filed 24th June 2021
(iii)	Affidavit of Guarantor Pastor Mathew Tape filed 24th June 2021

CHARGE OF WILFUL MURDER

4.	Annexure “A” of the Affidavit of the applicant is the copy of the Information and “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 (that) “with intent to cause the death of a person, namely Dominic Ellas Elsen by cutting him on his head with a bush metal steel iron axe.”

7.	From the Summary of Facts, it is alleged that the applicant was in the company of five other named persons when the alleged crime was committed.

8.	Incidentally, the five (5) other persons whose names appear in the Summary of Facts have not been arrested and charged with the offence.  They are still at large.

SUBMISSIONS

9.	Mr. P. Moses submitted in support of this 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.

10.	Ms. T. Aihi opposed the application on the basis of Section 9(1)(c)(i) of the Bail Act and submitted that a serious assault took place on the deceased which resulted in his death and that the applicant was in the company of five (5) other men at the time of committing the offence.

11.	She further submitted that the applicant has not shown any exceptional circumstance that warrant the grant of bail.

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

DECISION

13.	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.

14.	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”.

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

16.	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.

17.	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.

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

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

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

21.	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.  

22.	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 Statement of Facts that eyewitnesses saw what had happened.

23.	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.  No authority was referred to me on the point that a valid defence raised in a criminal matter constitutes an exceptional circumstance.

24.	This is a wilful murder case which involves an allegation that the applicant used a dangerous weapon to hit and did hit the deceased on the crown of his head causing grievous bodily harm resulting in the death of the deceased.  Additionally, the applicant was in the company of five (5) other men when this crime was allegedly committed.

25.	None of those other five (5) perpetrators have been arrested and charged.  They are presumably on the run.

26.	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 unreported and recently decided case of Jethro Paine Benny -v- The State, 14th & 17th May 2021 “the Court’s discretion to grant bail in a wilful murder case is very limited.”  I will add that it is non-existent unless otherwise exceptional circumstance exist.

27.	There been 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 – Re Thomas Maskus (2009) N1931, Bail by Bobby Selan (2009) N3690 and Re Bail Application by Bernard Urias (2009) N3999.

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

29.     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.
__________________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor Lawyer for the State