N9867

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (BA) 709 OF 2022

PLAK PUGUM
Applicant

-v-

THE STATE
Respondent

Mt Hagen:  Kaumi J
2022: 18th August, 1st September

CRIMINAL LAW – Bail Application-Wilful Murder-Medical Condition-Considerations under section 9 (1) present-Onus shifts to Applicant to show sufficient cause why continued detention not justified- Insufficiency of evidence of adverse effect caused by Medical Condition– Onus on applicant not discharged– Applicant in this matter has not demonstrated or established by way of appropriate evidence why his continued detention is unjustified -Constitution-section 42 (6)-Bail Act-sections 4,6 and 9-Criminal Code-section 299.

A remanded man charged with wilful murder applied for bail. Applicant failed to show by way of appropriate evidence why his continued detention was not justified. Bail refused.

Held:

[1] Applicant must show sufficient cause why continued detention not justified.
[2] Applicant’s affidavit very brief and did not depose to matters pertaining to exceptional circumstances.
[3] Applicant has not by way of appropriate evidence discharged the onus of establishing that his continued detention was not justified.
[4] Bail application refused.

Cases Cited:

Re Fred Keating [1983] PNGLR 133
Malaki Kongo and Joe Akusi v The State (1996) N1544
Bernard Juale v The State (1999) N1887
Osara v The State [2001] PGNC 149
Micheal Aia and Micheal Maneba v The State (2001) N2124
Re Boram Correctional Institution [2006] N3801
Kuku Hayara v The State [2008] N3488
Paul Guant v The State (2009) N3576
John Peng v State (2010) N4134
Theo Yausase v State [2014] SC1381

Legislation Cited: 

Constitution of Papua New Guinea 
Criminal Code 1974
Bail Act 1977

Counsel

Mr Orbert Kewa, for the Applicant
Mr. Joseph Kesan, for the State

RULING ON APPLICATION FOR BAIL

1st September, 2022

1.	KAUMI, J: This was an application for bail under s. 4 and s. 6 of the Bail Act (Chapter. 340) by the applicant charged with the wilful murder of one Richard Lunga. The Applicant is in custody awaiting trial. The Bail Act vests jurisdiction in this court to decide his application.

THE RELEVANT LAW

2.	In my judgment on an application for bail by a man charged with wilful murder in Jacky Anton v The State (2018) N7158 which I delivered on 9 March 2018, I discussed the relevant law with respect to bail in this country after considering the principles stated in twenty-six (26) Supreme and National Court cases spanning 35 years from 1980 to 2018.

3.	I adopt and reproduce the pertinent parts of my judgment in Jacky Anton v The State (supra) that state these principles on bail at paragraphs 17 and 18:

					     BAIL ACT
17.	  “Section 9.  Bail not to be refused except on certain grounds.
(1)	Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations. 
(a)	That the person in custody will not appear at his trial if granted bail; or
(b)	That the offence with which the person has been charged was committed whilst the person was on bail; or
(c)	That the alleged act or any or the alleged acts constituting the offence in respect of which the person is in custody consists or consists of:
(i)	A serious assault; or
(ii)	A threat of violence to another person; or
(iii)	Having or possessing a firearm, imitation firearm, other offensive weapon or explosive; 
(d)	That the person is likely to commit an indictable offence if he is not in custody; or
(e)	It is necessary for the person’s own protection for him to be in custody, or
(f)	That the person is likely to interfere with witnesses or the person who instituted the proceedings; or
(g)	That the alleged offence involves property of substantial value which has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property.
(2)	Subject to subsection (3), a bail authority shall not refuse bail on the basis of a consideration specified in Subsection (1) unless facts relating to that consideration have been established to the reasonable satisfaction of the bail authority either of its own knowledge or on the evidence furnished by a credible person.
(3)	In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.”
18.	The Supreme Court in Keating v The State [1983] PNGLR 133 (24 May 1983) held that:
1.	An application for bail by a person charged with wilful murder is to be determined pursuant to s. 9 of the Bail Act only, i.e. without reference to the interest of justice.
2.	The grant or refusal of bail pursuant to s. 9 of the Bail Act is discretionary in all cases other than wilful murder and treason.
3.	The grant or refusal of bail to s. 9 of the Bail Act is discretionary in cases of wilful murder (and treason)
4.	Once one or more of the considerations in s. 9(1) are proved bail should be refused unless the applicant shows cause why his detention in custody in not justified.

THE PRESENT CASE

4.	At the outset I note the Public Prosecutor has not objected to the applicant’s bail application. Just as in any other application before a court the applicant must establish on appropriate evidence the reasons for the application and why the court should accede to it and grant orders accordingly. A bail application is no different and the applicant is obligated to make out a case for his application with appropriate evidence and as a normal consequence of things that the court in turn is obligated to properly consider all aspects of this bail application. Conversely to act otherwise is to be deemed or to be accused of acting in a cavalier manner or at the worst to give an appearance of determining the application summarily. In other words, just because the Public Prosecutor has chosen in its wisdom not to object to the bail application does not mean the court should as a matter of course grant bail. It is incumbent upon a court considering a grant or refusal of bail to properly consider all the peculiar circumstances of the case before arriving at a decision.

5.	The first matter I address is whether the State has established by evidence on reasonable grounds to the satisfaction of the court of the existence of one or more of the considerations under section 9 (1). I have perused the Summary of Facts (Annexure A) I am satisfied that there is evidence of the use of a dangerous weapon, a long bush knife used to cut the left leg of the deceased causing blood loss which allegedly caused his death and which establishes the consideration under section 9 (1) (c) (i)-serious assault. Be that as it may the Summary of Facts are essentially a summary of the allegations against the Applicant nevertheless it is still evidence properly before the court to consider and by the operation of section 9 subsection (2) this court may act on such information.

6.	The Applicant is charged with one count of Wilful Murder contrary to section 299(1) of the Criminal Code and applies for bail pursuant to section 4 and 6 of the Bail Act and advances two grounds for the grant of bail. The first and main ground is his medical condition. (paragraph 6 of his affidavit in support) Secondly, is as he argues the need for him to be on bail to organize compensation payment to be given to the deceased’s relatives. (paragraph 7 of his affidavit in support)

7.	However, the main thrust of his application is that his health condition requires him to live in a healthy environment and to eat well and therefore it was his submission that the interest of justice was in his favour for a grant of bail. 

8.	I will consider both advanced grounds.

[i] Does the health of an applicant amount to a relevant consideration in a bail application?
9.	In paragraph 6 of his first affidavit the applicant deposes that the reason for seeking bail was because he was a very sick person and currently on ART treatment. That the cell blocks at the Mt Hagen Police Station are very unhygienic and crowded and that his health condition required him to live in a healthy environment and to eat well. He has attached a copy of his medical book and his treatment notes. He has also filed an affidavit in his support dated 15 August 2022, by a Thompson W. Ericho of the Western Highlands Provincial Health Authority who deposes at paragraph one that he is a Clinical Health Extension Officer at the Tininga Sexual Health Clinic of the Mt. Hagen General Hospital. He further deposes at paragraph 2 that he personally knows the applicant as a HIV Aids patient who comes to Tininga Sexual Health Clinic for review and receipt of Antiretroviral Therapy and he usually assists him. Mr. Ericho attaches a Medical Report dated 8 August 2022 “A’’ affirming the medical condition of the applicant.

10.	From the evidence provided to me by the applicant from Mr. Ericho, I do not find his medical condition to be life-threatening and I would be of a different opinion if say he was on a ventilator for life-support on a bed in a hospital or needing nebulizer treatment regularly in a hospital etc., Certainly there is no evidence before me of him being on life–support rather he is on medication i.e. tablets etc. 

11.	The Correctional Service Act 1995 says that Correctional Services officers are charged by law with responsibility of ensuring the safety and well-being of all inmates and have processes in place to facilitate this responsibility. Sections 7, 13 and 67 of the Correctional Service Act 1995 are the legal imperatives for this.

12.	In Francis Potape v. State [2015] SC 1419, Mr. Potape relied on his medical condition as his ground for bail. The Supreme Court in response said that “the welfare of a detainee or prisoner, by virtue of sections 7, 13 and 67 of the Correctional Services Act 1995 is a matter for the correctional institution and the goal commander to attend to”.

13.	The Supreme Court in the matter of Ester Ere v The State SCAPP 20 of 2017 dealt with the raised ground of ill health by the applicant in the following manner- “The medical condition of a prisoner may constitute an exceptional circumstance justifying the grant of bail but only if the condition is life threatening and the continued detention would seriously endanger the health and life of the prisoner”.

14.	His medical condition can be assisted whilst in custody by CS officers escorting him to Tininga Sexual Health Clinic for review and receipt of Antiretroviral Therapy on all scheduled dates for review. 

15.	I note that the applicant says that he is being kept in the Mt Hagen Police Station cell block since he was arrested on 11 July 2022. As far as I understand the District Court committal process all accused persons appearing in the Committal Court from custody are usually from a correctional remand facility. In this instance, I have not been appraised by the applicant why he has not been brought to the Baisu Correctional Institution which is a bigger and better facility than the police station cell block and an alternative for remanded persons appearing before a committal court. Further the applicant has not provided evidence to this court that the Baisu CI is no different form the police station cell block in terms of its standards of hygiene and space in the event that I was to consider remanding the applicant there. 

16.	I find the application before me for consideration, devoid of evidence of “a life threatening circumstance” and surely obtaining such information wouldn’t have been too onerous a task by the applicant given the operation of section 9 (2) of the Bail Act so for these reasons I reject this ground and answer this issue, in the negative.

[ii] Is the presence of an applicant in a community to organize and prepare compensation payment a relevant consideration in a bail application?
17.	I reject this ground as a relevant consideration as justifying release on bail or forming a basis for an exercise of discretion vested in this court as a bail authority, to decide whether or not to grant. And I reject this ground as the applicant has other members of his family and clan in the village and community who can organize such a compensation payment ceremony in the interests of peace and harmony and restoring some degree of normalcy between the families and clans. Importantly, it would be in the interest of these family and clan members for their personal safety to ensure such a compensation payment ceremony was conducted. 

RULING

18.	 I find the Applicant in this matter has not demonstrated or established by way of appropriate evidence why his continued detention is unjustified. See Re: Fred Keating –v-The State [1983] PNGLR 133.

19.	The Supreme Court in Re Fred Keating (supra) provides that where one of the factors under section 9 (1) is established unless the applicant shows his continued detention in custody is not justified bail should be refused. See Kapi DCJ at page 138 and Andrew. J at page 140. Therefore, in accordance I refuse bail.

20.	The applicant, Plak Pugum is remanded at the Baisu Corrective Institution forthwith.
____________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Applicant.