N10186
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 20 OF 2023

BETWEEN:
AUGUSTINE NERIKU
Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Tamade AJ
2023: 10th & 13th February

CRIMINAL LAW – bail application– offence of wilful murder – husband stabbed wife to death – Criminal Code – Section 299 (1) – Bail Act – Section 9 – Section 9 considerations exist – the offence consist of a serious assault – a threat of violence to another person – an offensive weapon was used – serious charge – bail refused

Cases Cited

Keating v The State [1983] PNGLR 133 
Maru and Oa v The State [2001] PGNC 151; N2045
State v Gawi [1988-1989] PNGLR 118

Legislation

Bail Act
Constitution of the Independent State of Papua New Guinea

Counsel:	

Mr David Pepson, for the Applicant
Mr Gerard Goina, for the State

13th February, 2023

1.	TAMADE, AJ:  The Applicant Augustine Neriku is a thirty-two-year-old male from Saure Village in East Sepik Province Province. The Applicant states that he is self-employed and lives at the Assembly of God Church grounds at Toliman Circuit, Gerehu Stage 6, National Capital District. 

2.	The Summary of Facts allege that the Applicant/Accused is alleged to have stabbed twice the deceased, Lillian Pouna aged 34 years old who was from Kalo village, in the Rigo District of Central Province. The deceased was a security guard employed by the Department of Prime Minister & National Executive Council. The deceased is said to be the spouse of the Accused. The alleged murder happened in a public place where the Accused is alleged to have been seen chasing the deceased from Kumul Avenue down to the Melanesian Way and as the deceased tried to run into the gate of Sir Manasupe Haus, the accused leaped forward from behind and landed a black handle kitchen knife onto the deceased posterior. The accused was then apprehended and charged for wilful murder pursuant to section 299(1) of the Criminal Code Act.

3.	The Applicant is currently detained at the Boroko Metropolitan Police Station Lock Up. He applies for bail on the following grounds:

a)	He has been in custody since being arrested and detained on 26 December 2022 and has not been brought to a Magistrate for the formal court process to begin.

b)	The Information against the Applicant has not been signed by a Magistrate and therefore the charges are yet to be formally laid before a Magistrate.

c)	He has three children ages three, one year six months and an infant of 8 months who are without any parental support since the passing of their mother and as the children depend on him for sustenance, he is requesting for bail to take care of his children.

4.	The Application for bail by the Applicant is supported by a Declaration by two Guarantors namely Michael Bono a Pastor of the Assemblies of God Church and Walter Munjin who is the nephew of the Applicant.

State’s Objection to Bail

5. 	The State has objected to the application for bail stating that the offence in which the Applicant is charged with is a serious offence citing section 9 (1) (c)(i)(ii) and (iii) of the Bail Act that the offence is a serious assault, that contains a threat to another person, and which involved an offensive weapon which was a kitchen knife.

6. 	The State has submitted that regardless of the testaments given by the Guarantors that the accused is a member of the AOG Church and has a good character, the State submits that the act alleged of and the circumstances of the act alleged of being the accused running after the deceased and stabbing her twice in her posterior contradicts the character of the accused. The State further submits that the Applicant has not provided exceptional reasons why his detention is not justified and therefore bail should be refused.

7. 	The State has relied on an Affidavit of the Arresting and Investigating Officer, Detective Constable Jessica Tautau handed up at the hearing of the matter. Detective Constable Tautau states that the Applicant is charged with a serious offence of wilful murder which consist of a serious assault, a threat of violence and which involved a weapon. Detective Constable Tautau states in her Affidavit that the accused did not appear in Court and therefore he should not be granted bail.

8. 	The evidence of Detective Constable Tautau is unclear as to when the applicant’s case was listed before the Magistrate and how many times it was listed when the accused did not appear. In submissions, Mr Goina of the State submitted that the matter was mentioned yesterday being the 9th of February 2023. Mr Goina also in submissions stated that the accused was taken to the Court precincts but did not appear in Court as the Magistrate was not available.  

9. 	Mr Goina of the State therefore submitted that if the Applicant had appeared in Court, the Information would have been laid before the Magistrate and would have been signed. When asked when the matter would next return before the Magistrate, Mr Goina was unable to assist with lack of instructions. Mr Goina submits that the offence that the Applicant is charged with being wilful murder is an offence highly prevalent in our society and therefore the Applicant should not be granted bail.

The Law on Bail

10. 	Section 4 of the Bail Act Chapter No. 340 gives the authority to the National Court to grant bail where a person is charged with wilful murder. The entitlement to bail under section 3 of the Bail Act premised upon the Constitutional right under section 42(6) of the Constitution, to be granted readily at all times from arrest or detention to acquittal is strictly scrutinised in my opinion and or carefully considered when the offence of wilful murder is involved including treason etc and such considerations are to be weighed against the allegations regarding the offence by considering the grounds in section 9 of the Bail Act.

11. 	The State has submitted that section 9(1) (c) of the Bail Act exists in this bail application and therefore bail should be refused. Section 9(1) (c) of the Bail Act is in the following terms (as underlined):

9. BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

[2](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 is unlikely to appear at his trial if granted bail;

(b) that the offence with which the person has been charged was committed whilst the person was on bail;

(c) that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist 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;

(e) it is necessary for the person’s own protection for him to be in custody;

(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings;

(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;

(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody;

(j)[3] that the alleged offence is one of breach of parole.

12. 	In submissions by the State, I had raised ground 9 (1)(f) of the Bail Act whether there was a perceived likelihood and or a real likelihood that the Applicant will interfere with State witnesses if granted bail. Mr Goina agreed that there was a risk that the Applicant will interfere with State witnesses but did not delve deeper into whether such risk was perceived and or real but also submitted that the Applicant was a risk to the public as he is alleged to have committed the offence in a public place wielding a kitchen knife and therefore, he should not be let back into the community. 

13. 	Mr Pepson of the Applicant has submitted that the Court should be weary of making assumptions as to the Accused guilt as he is still innocent until proven guilty.

Whether a formal Court process has begun in this case and or whether the detention of the applicant is unlawful?

14. 	Mr Pepson has referred the Court to the case of State v Gawi where he submits that the proceedings in this case have not yet commenced as the Information has not yet been signed by the Magistrate and therefore the accused has been held unlawfully. I have read the decision of State v Gawi and I am of the view that the facts of that case differ to this case. In that case the co-accused were on bail and did not turn up therefore the Court was considering whether to issue a bench warrant. An objection was raised that the proceedings had not yet commenced as no indictment had been presented to commence the proceedings. The Court held in that case that:

‘ “proceedings have commenced” when an information is laid in the District Court: a committal before the District Court is the preliminary stage only of the one proceeding which is tried in the National Court.’

15. 	In that case the Court proceeded to issue warrants of arrest for the two co-accused who did not turn up for Court and revoked their bail. Was the Information in this matter laid before the District Court?  The evidence shows that the Information is not signed by the District Court Magistrate as the Applicant is yet to appear before the District Court and there is also some evidence that suggests that attempts have been made by the police to bring the Applicant to the District Court however for reasons that are unclear, the Applicant is  yet to appear in Court for the Information to be laid wherein  it is signed by the Magistrate.

16. 	The consideration to grant bail therefore does not start when the Information is laid before the District Court Magistrate, bail is considered when a person has been arrested for an offence and is detained in custody at the Police Station. Section 6 of the Bail Act is in the following terms:

6. APPLICATION FOR BAIL MAY BE MADE AT ANY TIME.

(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.
(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.
(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section 9.

17. 	The issue of unlawful detention as submitted by the Applicant is not an issue to my mind in this matter as there is evidence from the State that the Applicant was brought to the District Court but for one reason or another not clearly before the Court, the Applicant did not appear before the District Court. The Court is not considering a warrant of arrest for failure to attend Court as in State v Gawi, the Court is considering a bail application after arrest and during detention. The Applicant is at liberty to raise the issue of unlawful detention however his application for the Court’s consideration is for bail and I find no unlawful detention given the State has made attempts to have the Applicant duly processed however for whatever reason, the Applicant is yet to appear before the Magistrate. I do not find that it is the Applicants fault that he did not appear before the Magistrate, his appearance is entirely controlled by the State which involves police officers and perhaps his non-attendance is due to the unavailability of the Magistrate as suggested by Mr Goina of the State. Perhaps if the State had done their due diligence, they would have better assisted the Court rather than opt for a loose opinion. 

Should the Applicant be granted bail?

18. 	The State has submitted that bail should not be granted if one or more of the grounds in section 9 of the Bail Act exists. Regardless, the Court still has the discretion whether or not to grant bail as the onus is on the Applicant to show that his continued detention is unjustified. Keating v The State is also a similar case to this case where the Applicant was charged with wilful murder of his wife. The Applicant in Keating was refused bail in the National Court and bail was also refused in the Supreme Court. I adopt the Supreme Court’s analysis in terms of section 42(6) of the Constitution that where the offence is of wilful murder and treason, the protection of section 42(6) of the Constitution is removed and the interest of justice considerations do not apply.

19. 	A bail authority being the National Court in cases of wilful murder still has the discretion unless one or more of the considerations in section 9 of the Bail Act exists. I take Mr Pepson’s arguments that the Court should not be too hasty in making a conclusion as to the Applicants guilt as he should still be afforded the presumption of innocence until proven guilty. The Supreme Court case of Keating  clearly shows that the allegations of the circumstances of the offence of wilful murder are important considerations which are set out under section 9 of the Bail Act. Finding that those circumstances exist based on the allegations does not go to an Applicants guilt, it goes to a decision on bail.

20. 	I accept the State’s objections that the offence in which the Applicant is charged with being wilful murder consists of a serious assault, there is a threat of violence to another person, and it involves an offensive weapon being a kitchen knife as alleged and therefore grounds 9(1) (c) of the Bail Act exists for the refusal of bail.

21. 	I also find that there is a perceived risk that the Applicant may interfere with State witnesses. I draw this conclusion from the Application for bail by the Applicant. In the Application for bail, the Applicant states that he lives at Assembly of God Church Grounds, Toliman Circuit, Gerehu Stage 6, National Capital District where he has resided since 2013 and has not lived at any other location aside from occasionally visiting his children in Port Moresby. This tells me that the Applicant may not have been living with his wife together with their children. The Applicant’s children could have been with his wife as looking at their ages, they are infants and could have been with their mother. At the time the deceased fatally lost her life, her children could have been with her family, her relatives and or people whom, are close to her and not the Applicant. Attempts to see the children when out on bail may invoke anger and frustration by her family, relatives and her people who are taking care of the children. There is not enough evidence to suggest to me that this a real risk of interfering with State witnesses who may have firsthand knowledge of the family situation of the Applicant and the deceased (though section 9(2) of the Bail Act, the technical rules of evidence are excluded), however I find that there is a perceived risk nonetheless.

22. 	I adopt the view by the Court in Maru and Oa v The State when His Honour Justice Kandakasi (as he was then) said these in relation for the need for an Applicant to attend to their family welfare that:

the comments I made in John Raikos v. The State (supra) in relation to the arguments centred around family difficulties and needs at page 4:
...the grounds advance are factors that should have been considered well before the offence was committed, if indeed, the applicant was involved in the commission of the offence. I hold the view that such factors should not form the basis to grant bail. This is because the kinds of difficulties and hardships advanced are the natural consequence of committing a crime at the first place. In holding that view, I am also mindful of the fact that an accused person remains innocent until proven guilty according to law. At the same time I am mindful of the fact that a legitimate process also provided for by the Constitution as been set in motion. There must therefore, be a presumption that the applicant has been charged and detained on some proper basis. I believe that is why the Bail Act as been enacted with the provisions of s.9 in it.

23. 	In taking all these considerations into account, I refuse the bail application by the Applicant accordingly.

24. 	The Court therefore makes the following orders:

i)	The Application for bail by Augustine Neriku is refused. 
________________________________________________________________
Office of the Public Solicitor: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent