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Ume v Independent State of Papua New Guinea [2022] PGNC 4; N9387 (14 January 2022)

N9387

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 14 of 2022

In the matter of an Application for Bail Pursuant to Section 42 (6) of the Constitution and Section 4 and 6 of the Bail Act Chapter No. 340

BETWEEN:
GREG UME

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Ganaii, AJ
2022: 12^th, 14^th January

CRIMINAL LAW - Bail – Charge of Wilful Murder – Grounds for Bail are Self Defence, Medical Condition - Alleged offence involves use of Weapons – Section 9 Elements of the Bail Act are present – Grounds relied on are inadequate and insufficient – Bail refused

Cases Cited

Felix Kange v The State (2016) SC1530
Fred Keating v State [1983] PNGLR 133
Kunumb v State [2009] PGNC 269; N4207
Philip Maru & Arua Oa -v-The State (2001) N2042
Rakatani Mataio v State [2007] PGSC 22; SC865
Yausase v The State (2011) SC1112
Yasause v The State SCAPP No 17 of 2014, SC1381

Law

Constitution of PNG, 42 (6)
Bail Act, Sections 4, 6, 9
Bail Rules of 2021

Counsel

Ms. Mangi, for the Applicant
Mr. Kuku, for the State

RULING ON AN APPLICATION FOR BAIL

14^th January, 2022

1. GANAII AJ: The applicant Greg Ume has been charged with one count of wilful murder pursuant to section 299 of the Criminal Code. The maximum penalty for the offence of Wilful Murder is death.

2. The brief allegations are that on the 29^th of June 2021, the accused/applicant, was at Bereina Station, Kairuku District of the Central Province. The deceased Vincent Ara Ini, 65 years old male from Waima Village was also there. They are related to each other as first cousins.

3. The accused applicant and the deceased had some unresolved issues. They argued and fought. The deceased swung a bush knife at the accused aiming to cut his head but the accused grabbed the knife with his left hand and simultaneously used his own knife to stab the deceased twice in the front of his chest. The deceased fell to the ground and died. The accused sustained injuries to his left hand palm.

4. The applicant has formally applied for bail relying on the Bail Forms in the Bail Rules, 2021. He relies on an affidavit of guarantor and filed submissions by counsel. The applicant has denied the charge. He raises self-defence and medical reasons as his main grounds for bail.

5. State objected to bail on the basis that the ground relied on by the applicant, that is that he acted in self defence are matters for the trial proper and that the medical grounds are not exceptional circumstance.

6. On the applicant’s medical condition, State argued that the Doctor’s Report is outdated, being produced four months ago on the 21^st September 2021.

7. Relying on the case law of Theo Yasause v The State SCAPP No 17 of 2014, SC1381 (11th September 2014), State argued that the applicant failed to show exceptional circumstance exist namely that the Medical Report does not show that the injuries are life threatening.

8. State objects to bail and submits that the alleged act constituting the offence in respect to which the applicant is in custody for includes being armed with a weapon, involves a serious assault. Therefore, the case comes within section 9 (1) (c) of the Bail Act, so that if a bail authority is satisfied on reasonable grounds that this is so, it may refuse bail.

9. On the applicant’s daughter and son in law as guarantors, State submitted that guarantors must be independent and not related to the accused. State also argued that the amount for cash bail suggested is not sufficient amount to ensure appearance given the offence is serious

10. This court notes that in the way this application is made, i.e., in reliance on Forms on the Bail Rules, the other important matters for consideration that are usually contained in affidavits such as the applicant’s undertaking to comply with all his bail conditions if the court is minded granting him bail; is not stated.

11. I note the applicant proposes a bail amount of K1,000 and attaches only one affidavit of one of the two guarantors.

Law

12. The applicable legal provisions are section 42 (6) of the Constitution and section 4, 6 and 9 of the Bail Act.

13. Section 42 (6) states:

‘’A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.” Section 3 of the Bail Act give effect to s 42 (6) of the Constitution”
14. The Constitutional provision (s 42 (6)) avails bail at all times to all persons
charged with a criminal offence except for wilful murder and treason where the right to bail, although available, is not automatically granted as of right to those charged with wilful murder (or treason). It is granted at the discretion of the Court and for the Court to grant bail in his favour the applicant must show exceptional circumstances.

15. Section 4 (1) (a) of the Bail Act states that:

“A person charged with wilful murder, murder or an offence punishable by death shall not be granted bail except by the National or the Supreme Court.”
16. Section 9 (1) (a) – (j) of the Bail Act sets out the grounds on which bail
may be refused if one or more of the considerations is present. However, the guidelines under s 9 is not exhaustive as there are other considerations such as the interest of justice to refuse bail or discretion of the bail authority to grant bail if exceptional circumstances can be shown by the applicant. See Re: Fred Keating (1983) PNGLR 133.

Application

Guiding Principles

17. The law and principles to be applied in bail applications for persons charged with murder and wilful murder are settled, in the cases of Re Fred Keating (supra); Yausase v The State (2011) SC1112 and Felix Kange v The State (2016) SC1530. The relevant principles applied when considering bail for a wilful murder are:

(1) Only the National Court and the Supreme Court has jurisdiction to grant bail to persons charged with wilful murder under Section 4 of the Bail Act.

• (2) An applicant charged with wilful Murder (or treason) enjoys no

presumption in favour of granting of bail under Section 42(6) of the Constitution). Their applications are not subjected to the interest of justice.

(3) If the State opposes bail, including a person charged with wilful

murder, it should establish that one of the circumstances in Section 9(1) of the Bail Act apply. His Honour Kandakasi J (as he then was) in the case of Philip Maru & Arua Oa -v-The State (2001) N2042 stated that the Bail Authority can take into account other and further considerations apart from those in section 9 (1) and listed a number of them. In Felix Kange v The State (supra), the Supreme Court endorsed those additional considerations that the Bail Authority can take into account.

(4) If one or more of the circumstances in Section 9 (1) apply, the Court is

not obliged to refuse bail. The Bail Authority still has a discretion whether to grant or refuse bail.

(5) The onus is on an applicant charged with wilful murder to convince the Court with evidence showing exceptional circumstances that make his continued detention unjustified.

18. The applicant advanced the following reasons for seeking the grant of bail: medical condition; he is raising self-defence at trial.

19. The State opposed bail on the basis that the alleged crime involved a serious assault, a consideration under section 9 (1) of the Bail Act. State also argued that the applicant has not demonstrated that his injuries are life threatening.

20. I respond to the grounds raised as follows:

Medical condition

21. I accept the state’s submission that the medical report is outdated by a number of months, i.e., four months. Although the present report does show infection on the injury to the palm, and therefore injury is limb threatening, it does not show any complications or emergency situations whereby the court should take into consideration now. The injuries therefore are not life threatening.

22. I note at paragraph 2, page 2 of the report, dated 21^st September 2021, by Dr Wawe of the Port Moresby General Hospital, that the wound on the scalp had since healed but is associated with headaches, and there is a loss of 80 % efficient use of the left hand due to infection. Other than that, the injury is only limb threatening and not life threatening. Consequently, the applicant’s current medical condition is not an exceptional circumstance.

Self Defence /Proclaimed Innocence

23. In raising self-defence, the accused is indeed pleading innocence in as he is in effect saying that he was not the instigator and was acting in self-defence to protect his own life. He is entitled to do so.

24. However, where merits of the case such as legal defences are raised, my view is that these are matters for the trial proper.

25. I have not been able to cite cases where courts have held that self-defence or raising of valid legal defences is a ground relevant for consideration of bail. In my view, court rulings that find held that innocence is not a ground for bail should be applicable in this instance where applicants are raising that they have strong legal defences. I say this because raising legal defences is in fact pleading innocence by making explanations for one’s action. Consequently, self-defence is not a relevant consideration and must be rejected. The principle underlying this argument is that a legitimised process of arrest and charge had taken its course, and the appropriate trial court will test whether or not the defence is available Maru and Oa v State (supra).

26. In many National and Supreme Court decisions, grounds of innocence were held to be irrelevant for bail. In Felix Kange v The State (supra), the Supreme Court, said this:

“..... The applicant’s proclamation of his innocence is irrelevant to his bail application and should be rejected. A similar result was arrived at in the case of Dr Theo Yausase v. The State. There Dr. Yausase was charged with wilful murder. Pending his trial in the National Court, he applied for bail. One of the reasons he advanced was his innocence. The Court rejected the proclamation or the applicant’s claim of innocence as irrelevant in a bail application.”

27. I am well guided by the wisdom of the above reasonings. For similar reasons, I say that whilst the applicant remains innocent until proven guilty, and whilst he raises that he may have a good defence in law, there is no similar presumption available in bail applications consideration for grant of bail for a serious charge of wilful murder.

28. In the SC bail case of Yasause (supra), although the remarks by His Honour was on the prospects of an appeal, I find Makail J’s statement relevant and applicable in the present case where self-defence is raised as a ground for bail. He said:

“... in a number of decisions, some of which I have cited, the Supreme Court has made it clear that prospect of success of an appeal is not an exceptional circumstance and cannot be used to support an application for bail: see Rakatani Mataio v State [2007] PGSC 22; SC865 (8 June 2007); Denden Tom & 2 Ors (supra) and Dr. Theo Yasause (supra). It follows the applicant’s submission that the appeal is likely to succeed because of uncorroborated evidence by sole State witness and inconsistencies in the oral evidence and statement by the sole State witness does not amount to an exceptional circumstance. 14. Indeed if the Court were to consider the prospect of success of the appeal, it would be tantamount to determining the appeal and it would not only be an abuse of process but dangerous because it is not the function of this Court to venture into such matter but the full Court”.

29. The relevance of that statement which I apply here, is that parties should be reminded that the legitimised criminal process that has commenced by the arrest and charge of the applicant, is the same and only processes, whereby a trial court can make the determination on the sufficiency of the evidence and on the issue of self-defence. If this court were to consider the prospects of the defence, it is tantamount to considering the defenec of self-defence and it is not the function of this court to comment on the strength or otherwise of the state or defence case in the light of the argument of self-defence. For this reason, this ground is also dismissed.

Applicant’s further submission on Self-defence, Medical Report and Guarantors

Self-defence

30. With due respect, in respond to Ms Mangi’s response that state’s position in objecting to bail on the basis that grounds of self-defence are matters for trial proper and where she argued that strict rules of evidence do not apply is a misapprehension (failure to understand correctly) and misapplication on the use of that principle. In bail applications, when parties argue that strict rules of evidence do not apply, it is used in reference to adducing evidence to support positions relied on by a party in bail applications. The principle is that parties do not need to comply with strict rules of evidence when presenting their case. The State was correct in saying that the ground of self-defence is a matter for trial proper.

Medical Report

31. In this instance, an updated report is necessary and will put things into perspective on the current condition of the applicant especially on his hand and whether it had gone from bad to worse. An updated report will assist the court. In the absence of such, or pending any review, it is not safe to conclude on the status of the applicant’s medical conditions. However, I do not for now his lack of use of his left hand and impairment on the scalp.

Guarantors

32. One of the guarantors, Jacinta Greg, who is the applicant’s daughter, did file an affidavit however, she did not make any pledge in support of bail, or depose to any statement on her understanding of her role as a guarantor. The other guarantor Theodore Oa is only named in the forms of the Bail Rules as a proposed guarantor but has not sworn any affidavit to that effect. The court is not satisfied that the guarantors have undertaken to ensure the applicant will comply with all his bail conditions.

33. On the argument of independence of the guarantors, Ms Mangi’s response is a show of lack of appreciation of the applicable principles in law guarding bail applications and positions of guarantors. Simply saying urgency dictated the manner in which counsel presented her case is unprofessional. I would like to think that urgency would make counsel want to do things properly so that long established legal principles are observed.

34. In the case of Kunumb v State [2009] PGNC 269; N4207 (9 August 2009), Sagu AJ, stated:

“36. The last three guarantors have been objected too by the State as unsafe guarantors as they are related by blood or by marriage. The Courts have held that relatives and family members are unsafe guarantors. However, in some situations where family members possess reputable status and character and who the community have high regard for such as a Village Court Magistrate, Councilor, Pastors, Peace Mediators, Businessmen and persons with high positions in government and non government organizations can become safe and secure guarantors. This is because when a respected member of the family with standing in the community agrees to be a guarantor it imposes a greater degree of obligation and respect on the part of the Applicant to answer bail”.

35. The principle drawn from the above case is that if family members are to be appointed as guarantors, they must have standing in the community so that their duty to act as guarantors will be respected by the applicant. I agree with the State but to the extent that having any ordinary family members as guarantors is not sufficient. In this instance, family members do not have standing in the applicant’s community.
36. I am mindful of the number of absconding that is happening now as we speak in the National Court. A quick check on these matters reveal that a good number of these cases reveal that the guarantors are indeed family members who either have failed in ensuring compliance of bail conditions and these in effect means that there is no greater degree of respected and obligation by the applicant towards the guarantors because of their relationship as family members (Kunumb v State (supra).

Conclusion

37. In conclusion, I am satisfied on the evidence that the acts constituting the offence in respect to which the applicant is in custody, come within section 9 (1) (c) of the Bail Act, namely, having or possessing a weapon, and a serious assault.

38. I am satisfied on reasonable grounds that the evidence of the grounds on which the applicant seeks bail is inadequate and insufficient in fulfilling the requirements of exceptional circumstance for grant of bail.

39. I am also satisfied that it is not in the interests of justice that bail should be granted on the ground that the applicant has good prospects of succeeding in his trial due to his legal defence of self defence.

40. The interest of justice principle connotes to fairness. Fairness requires the court to be mindful of this legal process that has already commenced by the arrest and charge of the applicant, and it requires only the trial court to make a determination on the issue of self defence and not this Bail court.

41. For these reasons, the application for bail by Greg Ume is refused.

Order

42. Bail is refused
________________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent