N9442

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO.  30 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:
DAVIS ALELE

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani:  Ganaii, AJ
2022: 24th, 25th, 26th January

CRIMINAL LAW - Bail – Charge of Wilful Murder – Grounds for Bail are that there is no remand facility – Only facility is condemned unfit for human habitation - Alleged offence involves use of Firearm – Serious Assault - 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
Konia v State [2011] PGNC 298; N4498 
Kunumb v State [2009] PGNC 269; N4207 
Pala Kaki v The State CR (AP) NO. 705 of 2018
Philip Maru & Arua Oa -v-The State ( 2001) N2042
Renagi v The State [2000] PGSC 24; SC649
Warome v State [2020] PGSC 63; SC1973 
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

Mr. Kirriwom, for the Applicant
Mr. Kaipu, for the State

RULING ON AN APPLICATION FOR BAIL

26th January, 2022

1.      GANAII AJ:    The applicant Davis Alele 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 allegations are that on the 20th of October 2021, the applicant, was at Koroga village, Bana District of the Autonomous Region of Bougainville (AROB). The deceased Melchior Gasa was also there. The accused was in the company of 14 other persons. There was an existing conflict or unresolved issue between the accused’s line and the deceased’s line. 

3.	The applicant and his alleged accomplices, who were his father’s relatives went to the Karoga village with the intention to cause a fight with the deceased and his line. When they arrived there, they destroyed properties belonging to the Karoga villagers. They burnt houses and broke in and looted a canteen. The accused/applicant said these words “Yupla save lo me? Mi em hero ya! Bail mi pinisim upla ya. Bail mi sutim yupla”. (Translated to mean: Do you know who I am? I am a hero! I will finish you all. I will shoot you all). 

4.	The applicant and accomplices got a gun out from the canteen. The accused/applicant used the gun and fired a shot at the deceased. He was 9 meters away from the deceased when he shot him on the left buttock. The deceased fell. He fired shots and threatened the deceased’s relatives by saying if they assisted the deceased to the hospital they will be killed. 

5.	The deceased was taken to a Health Centre and later to Arawa Provincial Hospital. He died ten days later on the 30th of December 2021.

6.	The applicant was apprehended at Upai village and locked up at Arawa Police cell. He was released by a police officer and apprehended again on the 06th Jan 2022. 
 
Issue

7.	Whether bail should be granted?

Law

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

9. 	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”

10. 	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. 

11.	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.”

12. 	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.

Defence Submission 

13.       The applicant has formally applied for bail relying on the Bail Forms in the Bail Rules 2021. 

14. 	He relies on the forms in the Bail Rules where he has stated his reason for bail. He named two guarantors who have made undertakings by way of declarations that they know applicant, they understand their roles as guarantors, and they undertake to ensure compliance of bail conditions and in the evet that there is a breach of the bail conditions, they will pay sums of money. Mr. Kirriwom submitted that amount of surety can be paid by the guarantors if ordered. 

15. 	The applicant submits that the court can use its discretion to impose any amount on bail.  

16.	The applicant has denied the charge.  He raised general denial and innocence and his reasons for seeking bail are he is not a flight risk as he is a public servant and his job requires him to perform important roles for the AROB Government relating to high impact Forestry and Climate Change projects and the Bougainville Independence Implementation Program.

17.	The applicant declares that he is the paramount chief of the Kukaku tribe, a major tribe in the of Baba Constituency of the Bana District of South Bougainville. He is the leader for his people for Bana Special Economic Zone project and they have important work to do. 

18.	Other reason seeking bail is that the remand facility where he is kept, i.e., at the Arawa Police cell was declared unfit for human habitation.  

State’s Submission

19.       State objected to bail on the basis that section 9 (1) (c) considerations are present where a firearm was alleged to have used, causing a serious assault and death. State submits that the grounds of innocence and him not being able to continue work for the Government and his people, are not exceptional circumstance. From instructions, bail was refused by the police on the basis that the applicant is half Solomon Islander, who’s home country is across the sea and he is a flight risk. 

20.	 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.

Application 
Guiding Principles

21. 	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) SC 1112 and Felix Kange v The State (2016) SC 1530. 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 Kang 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.
 
22.	The applicant advanced reasons for seeking the grant of bail to be innocence, work as a public servant and as leader or chief for his tribe, ongoing important projects for his tribe will suffer and there is no proper remand facility to keep him. He has not been brought before a court and he is having difficulties accessing a lawyer. 
 
23. 	I respond to the grounds raised as follows:

General Denial /Proclaimed Innocence 

24.	Although entitled by law to say one is innocent until proven guilty, the court is guided by the allegations in the Statement of Facts (the SOF). The SOF show s 9 considerations to be present. Defence of general denial or claim of innocence are matters for trial proper. 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 any defence is available: Maru and Oa v State (supra). 

25.	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.”
 
26. 	I am well guided by the wisdom of the above reasonings. For similar reasons, I say that whilst the aapplicant remains innocent until proven guilty, there is no similar presumption available in bail applications consideration for grant of bail for a serious charge of wilful murder.
27. 	Defence also relies on the ground that there is no appropriate remand facility to keep the applicant. He has not been taken before a magistrate’s court, due to circuit exigencies and he experiences a lack of access to readily available lawyer. 
28.	The argument on where the applicant can be remanded due to the condemnation of the facility, he is presently in is an administrative issue for the CIS. That is not an exceptional circumstance. In Konia v State [2011] PGNC 298; N4498 (15 August 2011), Kangwia AJ said:
“Just because the conditions in a remand centre or police cell are unlike the home setting, should not operate as a basis to obtain temporary freedom. Being locked up in a police cell or a CIS remand facility are options an individual chooses either by design or default in the first place, by allegedly falling out of line with the Law”.
29. 	In Warome v State [2020] PGSC 63; SC1973 (29 June 2020), the Supreme Court said: 
“29. The Courts have held that poor and unhygienic living conditions in prison are not grounds constituting exceptional circumstances for grant of bail. They may be issues for the Court to enforce against the prison authority under Section 57 of the Constitution by ordering the prison authority to fix but not grounds for release of prisoners into society. Added to that, there must be evidence to verify that the prison accommodation/living quarters including ablution blocks are beyond human habitation”.

Other remarks

30. 	The SOF show that the applicant was released by a police officer after his initial arrest and then he was rearrested. The circumstances are not clear on how and why he was released, and how he was rearrested. There were no submissions on this. 
31.	State was not able to show if the applicant was fleeing jurisdiction or hiding when he was arrested the first time and released from the police station. This court is not properly assisted on what really happened. I will give the benefit of the doubt to the accused and say he did not or was not trying to flee jurisdiction. I say this because if he was released and he was fleeing jurisdiction, I would think that he would have already gone into hiding or across the seas to Solomon Island. But that was not the case. He was brought back to the Police station. Further, just because he is also from Solomon Island, that does not mean he is a flight risk. The police must show that he is likely to abscond.  For these, I am not satisfied that he is likely to abscond. 
32.	Courts have expressed that unreasonable delay in bringing cases to trial may amount to an exceptional circumstance warranting the grant of bail. Refer to paragraph 6 of Pala Kaki v The State CR (AP) NO. 705 of 2018, Alotau:  Toliken J, 2018:   19th September 18th October.
33.	In Renagi v The State [2000] PGSC 24; SC649 (1 August 2000), Amet, CJ said:
“What may amount to "exceptional circumstances" must be determined from the whole of the circumstances of a particular case and it is not possible to enumerate particular factors as amounting to such "exceptional circumstance" alone. The onus is upon the applicants to demonstrate that there are factors which constitute "exceptional”.
34.	Whilst the argument is that where the accused was not brought to court since his first and second arrest, these are matters owing to circuit exigencies and availability of court circuits to that part of the country. 
35.	The question of exceptional circumstance can be attributed to accused’s personal circumstance. It must be considered in the light of the whole of the circumstance of the case and not one particular fact only (Renagi, supra). 

36.	Looking at whole of the case, I ask the question, whether the continued detention is not justified. I say the interest of justice requires that the police must bring those alleged to have committed serious offences to justice and to allow for that, investigations must be fully and properly completed. State was not able to get instructions due to remoteness of where the Investigating Officer is, and there were no instructions on the likelihood of interference.  I note that the alleged incident occurred on 20th of December 2021, that is about a month and one week ago. The allegations involved a number of alleged accomplices, about 14 of them and alleged the use of a dangerous weapon, a M4 Carbine Assault Rifle. For this, I say that the investigations are likely to be pending. The alleged accomplices are still at large. The alleged weapon is also still at large. Consequently, in the interest of justice, which connotes to fairness, fairness requires the Police to conduct full investigations before the accused is released on bail as it is likely that he may try to contact his alleged accomplices to conceal the weapon that was allegedly used.

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 serous 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 in the interests of justice that bail should be refused for the reason that investigations are pending and given that the alleged offence involved the use of a firearm which has not yet been confiscated and the accused’s continued detention is therefore justified. 

40.     For these reasons, the application for bail by Davis Alele is refused.

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