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Suma v State [2021] PGNC 369; N9074 (23 February 2021)

N9074

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 774 OF 2020

In the matter of Bail Application

BETWEEN:

PATRICK SUMA

Applicant

AND:

THE STATE

Respondent

Wewak: Rei, AJ

2021: 23^rd February

BAIL - Nature of right to bail – Constitution, Section 42(6) – Bail Act, Sections 4, 6 and 9 – exercise of discretion whether to grant bail – age of one of the applicants- public interest considerations.

This is a ruling on application for bail made under the Constitution and the Bail Act.

Cases Cited

Thomas Markus (1999) N1931

COUNSELS:

Mr. V. Jim, for the Applicant

Ms. L. Maru, for The State

JUDGEMENT

23^rdFebruary, 2021

1. REI AJ: This is a ruling on application by the applicant for bail by the applicant Patrick Suma made pursuant to Section 42(6) of the Constitution and Section 6 & 9 of the Bail Act Chapter 340.
   

Background

1. APPLICATION FOR BAIL
   

2. The Applicant Patrick Suma (“the Applicant”) filed a Notice of Motion on the 9^th of December 2020 seeking an Order that he be admitted to bail with conditions to apply should bail be granted.

3. In support of the application the Applicant filed his own affidavit sworn and filed on 9^th December 2020 together with the Affidavits of two (2) guarantors as follows:

(i) Robert Krend filed 9^th December 2020
(ii) Pr. Steven Lemechi filed 9^th December 2020

4. The Application was made on the 19^th of February 2021 and adjourned to the 23^rd of February 2021 for a decision to be handed down.

2. THE CHARGE
   

5. The Applicant was according to the information sheet Annexure A of the Affidavit of the Applicant), arrested on the 9^th of June 2020 and charged with the offence of unlawfully killing one Alois Bina on 7^thJune 2020 at Oil Palm Turubu LLG Wewak, ESP.

6. This charge was laid under Section 300(1) of the Criminal Code Act Ch. 262.

7. The Applicant has been remanded in custody at Boram CIS awaiting his trial since the day he was arrested, 9^th June 2020.

8. It is now almost 8 months that he has been remanded in custody.

100. PREVIOUS AND PRESENT BAIL APPLICATION
     

9. The Applicant previously made an application seeking an Order he be admitted to bail.

10. Upon hearing the application, His Honour Kirriwom J. refused to grant bail for the following reasons:

(i) he will not appear at the trial of his matter;
(ii) the offence constitutes serious assault, threat of violence to another person and having in his possession a firearm.
(iii) his own protection and safety; and
(iv) likelihood of interfering with State witnesses

11. In the current application, the Applicant through counsel Mr. Jim submitted that circumstances have changed therefore he seeks to be admitted to bail. He relies on the affidavit of the Applicant filed 7^th December 2020 in particular paragraph 7. He express that the circumstances have changed which include the following:-

(i) he will reside at Perigo Police Barracks, Wewak East Sepik Province in a police given accommodation to attend court and complete his case.

(ii) his court file (Police Hand-up Brief) was already completed and served on him on the 07^th September 2020.

(iii) he was already committed to stand trial before this court on 30^th November 2020 by Wewak Committal Court.

(iv) Wewak Agriculture Development Ltd (the operator of Turubu Oil Palm) on my behalf paid a sum of K40,000.00 as compensation for funeral and other expenses to the immediate family of the deceased who acknowledged receipt on 12^thJune, 2020 Annexed hereto and marked with the letter “D” is the receipt of payment.

(v) he has spent almost 7 months in police custody and is gravely concerned about family welfare because his wife and 5 children have suffered a lot in Port Moresby whilst being detained here in Wewak.

(vi) He is not a flight risk and he can easily be contacted and located as he is a serving member of the Police Special Division (SSD).

12. In opposing the Application Mrs Maru called Snr. Constable Jackson Wavien of the Wewak Police Station who gave evidence as to why bail be refused.

13. In his uncontested evidence Snr Constable Jackson Wavien stated that the Applicant is not likely to appear for his trial and would abscond bail because he comes from Finschafen, Lae, Morobe Province and might escape and secondly he is a Police Officer deployed to the Oil Palm Project area at Turubu in Wewak. These were the same reasons advanced in the previous bail application.

14. In response to this evidence, Mr. Jim submitted that the Applicant has made firm arrangements with Perigo Police Barracks, Wewak where he can be contacted on matters affecting his case. He also promised he will comply with all bail conditions should he be admitted to bail.

4. REASONS FOR RULING
   

15. Following the reasons for judgement, by his Honour Injia J in Re Thomas Markus N1931, it is noted that when his Honour Kirriwom J refused the first (bail) application; according to Injia J, no written reason(s) were given or at all as to why bail was then refused.

16. His Honour Injia J said in the above case that while an applicant is allowed to make a fresh bail application to another Judge in the event his previous bail was refused, there must be “written” reasons why such bail application was refused and that a mere reference to the Certificate of Refusal to Grant Bail is not sufficient.

17. I would, as a matter of law differ from this view given that the Certificate of Refusal to Grant Bail is a document provided for under the Bail Act which is required to be filled by the bail authority refusing bail giving written reasons for refusing bail, how brief those reasons may be.

18. If such document was not completed and signed by the bail authority, it can be said that no reasons were given for refusing bail.

19. In this particular instance, the Applicant previously made the same application before his Honour Kirriwom J, but was refused, the reasons for which refusal are contained in the Certificate of Refusal of Bail, though they may be graphic.

20. His Honour Kirriwom J was satisfied that under the circumstances then prevailing, he could not grant bail for the reasons adverted to in the Certificate of Refusal of Bail as opposed to written reasons.

21. Since the previous bail application was refused on the 6^th August 2020, I pause to ask whether the circumstances surrounding the grant of bail have changed such that the Applicant be now admitted to bail.

22. It seems that the evidence given by Snr. Constable Jackson Wavien suggests that circumstances have not changed. That is the applicant may not appear at the trial of his matter, the offence involves a firearm and he will interfere with State witnesses.

23. In my considered opinion, the reasons relied on by the State are the very same reasons which caused refusal of bail application previously.

24. The State witness Snr. Constable Jackson Wavien did not address the evidence contained in paragraph 7 of the affidavit of the Applicant as to the change of circumstances.

25. I consider that these reasons amount to “a change in the circumstances of the case”.

26. Had the Applicant not given evidence as to the change of circumstances, his application should be dismissed as it is a second bite of the cherry - refer Re Thomas Markus (supra).

27. But that is not the case here. The Applicant has given sufficient compelling reasons such that he should be allowed bail.

28. In all the circumstances of this case, I consider that the Applicant should be granted bail and I make orders in the following terms:

(i) The Applicants bail is granted in the sum of K1000.00.

(ii) The two guarantors namely Pastor Steven Lemechi and Hon. Robert Kreng are nominated guarantors for the applicant and shall each pledge to the State a sum of K500 each as surety in support of the bail and shall ensure the Applicant complies with the following bail conditions;

• (a) The Applicant shall report to the Wewak National Court Registry every Wednesday between 9:00am and 3:00pm.
  
• (b) The Applicant shall not interfere with any State witnesses.
  
• (c) The Applicant must reside at his residence at Paringo Police Barracks.
  
• (d) The Applicant shall not leave East Sepik Province without first seeking leave of the Court.
  
• (e) The Applicant shall appear at all times as and when required by the Court.
  
• (f) Parties are to ensure that the matter is fixed for trial as soon as practicable.

________________________________________________________________
Alman Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State