N10189
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 61 OF 2023

BETWEEN:
ANDAJAH YUGULI
Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Tamade AJ
2023: 3rd & 6th March

CRIMINAL LAW – bail application– offence of wilful murder – victim stabbed on the back of the head – 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 – likely to interfere with State witnesses – arguments centred around family difficulties is not a valid reason to grant bail – serious charge – bail refused

Cases Cited:

Keating v The State [1983] PNGLR 133 
Maru and Oa v The State [2001] PGNC 151; N2045
Yasause v The State [2014] PGSC 55

Legislation:

Bail Act
Constitution of the Independent State of Papua New Guinea

Counsel:
	
Mr Obediah Himore, for the Applicant
Mr Andrew Kaipu, for the State

6th March, 2023

1. 	TAMADE, AJ:   The Applicant Andajah Yuguli is a 39-year-old male from Wabima, Margarima, Hela Province and is charged with wilful murder pursuant to section 299(1) of the Criminal Code. It is alleged that the accused in the company of one other (who is a suspect yet to be arrested and charged) were drinking with the deceased at the back of a rice farm at 14 Mile. The caretaker of the property warned them that it was company property and the accused, and the other two men told the caretaker that they will finish their beer and leave. After a while the accused and one other person were about to leave when the caretaker asked them about the third person. The two men said he was going to wait for his girlfriend and they both will leave and come back for him later. The accused and one other drove away in the deceased car. A week later, on 26 May 2021, the caretaker of the property heard dogs fighting in the bush and went to find out when he discovered a body buried and dogs were eating the leg of the deceased.  The matter was reported to the police and the body was dug up when it was found that the deceased sustained deep wounds to the back of his head. The applicant was arrested and charged on 1 June 2021 however his case was struck out due to lack of identification. He was rearrested on the same charge on 1 January 2023 and now applies for bail.

2. 	The Applicant’s reasons for bail are as follows:

a)	He is a first-time offender and has a right to bail.
b)	He was arrested and kept in custody for one year seven months and on 7 December 2022, he was released from the Committal Court only to be re-arrested. He states that there was an error by the police in re-arresting him for the same charge when the State can-not re-arrest him for the same charge and that the State should have issued an ex-officio indictment on him. If granted bail, he will instruct a lawyer to help him in his case as he states his case was already struck out by the Committal Court.
c)	He has nine children that will be going back to school and his detention will affect their education.
d)	He has a medical condition with his eye having to undergo surgery whilst in custody and facing difficulty with his vision walking around, washing his clothes etc. He states he needs to be out with his immediate family to assist him as he is suffering from his medical condition on his eyes.
 
3. 	The State has objected to bail. The State submits the following objections from the affidavit of Detective Sergeant Nei Pige;

a)	The crime alleged involves a serious assault.
b)	The crime alleged involves a threat of violence to another
c)	There is a high likelihood of interference with State witnesses. There is also an Affidavit of Robert Manga who states that he was threatened by the Applicant at the District Court. The Applicant has threatened him that as he had been attending the District Court Committal proceedings. The Applicant had warned him that “when he gets out, he will blow his head off”.
d)	There is an Internal Memorandum from Inspector Gibson Darius to the Acting Commander Officer-C.I.S regarding the Applicant that he had an eye condition with blurry vision and he was referred to the Ophthalmologist at Port Moresby General Hospital  in mid-2022. On 21 November 2022, the Applicant underwent eye surgery and was discharged on the same day. He is undergoing clinical reviews at the Port Moresby General Hospital after his surgery whilst in custody. The State therefore states that there is no need for the Applicant to be released on bail on the eye condition as he is receiving the medical treatment whilst in custody.

4. 	Section 42(6) of the Constitution is in the following terms:

6) A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

5. 	Section 9(1) of the Bail Act is in the following terms:

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.

6. 	In the case of Keating v The State, the Court held that in the case of wilful murder, the interest of justice consideration in section 42(6) of the Constitution is not considered in wilful murder cases and bail is considered against the considerations in section 9(1) of the Bail Act which is an exercise of the Court’s discretion where there is reasonable grounds that one or more of the considerations in section 9(1) of the Bail Act exists. The presumption of a right to bail is not automatic to cases for wilful murder and treason. The Keating case states that bail should be refused if one or more of the considerations in section 9(1) of the Bail Act  exist unless the Applicant shows why his detention in custody is not justified. 

7. 	In Yasause v The State , the Court said that in regard to an applicant’s medical condition, the Applicant must establish that he was denied access to appropriate specialist or medical treatment and or that these are unavailable from the Correctional Service. I find that the Applicant has received medical treatment from the Port Moresby General Hospital through the Correctional Service whilst he is in custody and he is undergoing reviews and therefore his claims to need his immediate family to take care of him is a reason I find not convincing compared to the nature of the offence he is charged with.

8. 	I also find and uphold the State’s objections to this bail application as grounds 9(1) (c) and (f) exists. The alleged act constituting the offence involves a serious assault, there is a threat of violence to another person and the Applicant is likely to interfere with State witnesses.

9. 	I am of the view that whether the State should have proceeded on the same charge after the Applicant was re-arrested are matters that should properly be raised at the Committal proceedings and this Court will not consider such matters which are outside the considerations in section 9(1) of the Bail Act especially where the charge is one of wilful murder where the interest of justice consideration is removed from the hands of the Court.

10. 	In Maru and Oa v The State, Justice Kandakasi (as he was then) said this in relation to the grounds for bail on family reasons to attend to family or children:

“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 placed. 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.

11. 	The reason advanced by the Applicant to attend to his nine children attending school is therefore not a reason for the grant of bail and having considered all the relevant considerations under section 9(1) of the Bail Act, bail shall be refused.

12. 	The Court therefore makes the following orders:

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