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Enomba v The State [2025] PGNC 234; N11394 (8 July 2025)

N11394

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA (APP) No. 485 OF 2025

JERRY ENOMBA
Applicant

V
THE STATE
Respondent

Waigani: Miviri J
2025 : 07^th ,08^th July

CRIMINAL LAW – PRACTISE & PROCEEDURE – Bail Application – Section 4 Bail Act – Section 42 (6) Constitution – Section 299 CCA – Bail Opposed S9 (1) (c) (i) (ii) (iii) & (e)(f) Bail Act – Serious Assault – Threat of violence – Guarantors – Guarantee Not Made Out – Serious Offence Affidavit of Arresting Officer – Violence – No Exceptional Circumstances Demonstrated on the Balance – Caught at the Airport as Attempting to Flee the allegation of Wilful Murder – Balance Not Discharged for Bail – Bail Refused.

Facts
Accused Applicant was charged with wilful Murder

Held
1. Bail not as of Right Section 4 Bail Act
2. No exceptional Circumstances Demonstrated.
3. No Medical Affidavit.
4. Material Relied Balance not discharged.
5. Section 9 (1) (c) (i) (ii) (iii) (e).
6. Threat of violence
7. Serious violent offence.
8. Objection sustained Affidavit Arresting Officer.
9. Bail Refused Remanded.

Cases sited.
Yausase v State [2011] PGSC 15; SC1112 (8 July 2011) .
Keating v The State [1983] PGLawRp 495; [1983] PNGLR 133 (24 May 1983).
Walami v State [2021] PGSC 100; SC2182 (22 December 2021).
Maraga v State [2010] PGSC 60; SC1573 (20 December 2010).
State v Kikala [2023] PGSC 15; SC2355 (22 February 2023).
Lester v The State [2001] PGNC 148; N2044 (22 January 2001).
State v Paul [1986] PGNC 46; [1986] PNGLR 97; N537 (7 April 1986).
In re Bail Application by Hombi [2010] PGNC 84; N4080 (20 July 2010).
Smedley v The State [1978] PGNC 45; [1978] PNGLR 452 (21 November 1978).
Diawo, Re [1980] PNGLR 148 (4 July 1980).

Counsel:
T. Kokents, for the State
S. John, for Applicant

RULING

08^th July 2025.

1. MIVIRI J: This is the ruling on an application for bail by the applicant who has been charged with Wilful Murder pursuant to section 299 of the Criminal Code Act.
   
2. The originating documents do not state the source of the application in law where the jurisdiction of the court is sourced to see out the application. In the submission made counsel refers to section 4 of the Bail Act that because the applicant is charged with wilful murder pursuant to section 299 of the Criminal Code, that is the source of the jurisdiction of the Court here. Which is in the following:
   

“Section 4. ONLY NATIONAL OR SUPREME COURT MAY GRANT BAIL IN CERTAIN CASES.

(1) A person–

(a) charged with wilful murder, murder or an offence punishable by death; or
(b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or breaking and entering a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence,

shall not be granted bail except by the National Court or the Supreme Court.

(2) For the purposes of Subsection (1), “firearm” includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile.”

3. This section does not give bail as of right. Applicant does not have a right to bail. Because the language is “shall not be granted except by the National or the Supreme Court.” He starts his application on the negative and must move it on the material he relies to secure exceptional circumstances to be so granted. He must invoke the discretion of the National Court by showing exceptional circumstances warranting that his continued detention is unjustified, Yausase v State [2011] PGSC 15; SC1112 (8 July 2011) which affirms and follows Keating v The State [1983] PGLawRp 495; [1983] PNGLR 133 (24 May 1983). To satisfy this is the grounds upon which the applicant says he has exceptional circumstances warranting the grant of bail. His grounds are:
   
   • (a) he is innocent of the charge,
   • (b) his health is seriously affected, and he must come out to seek medical help.
   • (c) the welfare of his family has been greatly affected by his detention.
   • (d) Guarantee on bail.
     
4. Yes, it is an allegation that will have its day in court to determine his guilt or Innocence in the trial proper. As it is, a serious allegation of wilful murder is upon him. In an application for bail as here the guilt or innocence of the applicant will not supersede so as to grant bail. It will not advance his application for bail whether he was the author of the death of the deceased or followed others. The fact remains that he was charged upon information which has now being the subject of a committal here for trial. It is not the determining factor in an application for Bail as here. Challenge to it here will not weigh in favour of the grant or refusal of bail.
   
5. He contends that his health is seriously affected but produces no medical evidence to that effect by a doctor. The Court has done this in the case of application made in reliance of medical conditions by applicants. It has been held that the medical condition of an applicant be confirmed by a doctor before bail is considered and granted, Walami v State [2021] PGSC 100; SC2182 (22 December 2021) and Maraga v State [2010] PGSC 60; SC1573 (20 December 2010). He relies on supposed health records attached to the affidavit annexure “A.” I do not see them as anything out of the ordinary warranting an exceptional circumstance that must in all circumstances be bases for his grant of bail. There is nothing explicit on the face of that evidence on the balance that his health will deteriorate if he continues to be incarcerated. That his health and well being depends on the grant of the application. That is not the extent of annexure “A”. For all its worth it is scribbling on paper that purports to be a form of some sort. The details of what is inscribed cannot be ascertained or firmed out medically and in layman’s terms to firm out the call of the applicant that he is medically unwell. And as to who has filled out those forms it is not clear. To understand the form and its contents fully the writer of that form must depose to it. Medicine is a science that only a qualified doctor can depose to. Reliance cannot be placed on the word of an applicant as it were here. And better still a person who has custody of the records depose that it is a form that is issued from the depository. There is really nothing to firm out this annexure. Given it does not drive the application any further to materialize in his favour.
   
6. In law it means there is no medical basis favourable to the applicant to uphold his application. He has placed an application relying on material that is not there in law for consideration. The charge of wilful murder is not a light matter therefore section 4 of the Bail Act. The court is of law and will grant or refuse bail by law not without. And in this regard the welfare of one’s family is a direct result of the charging of the applicant. It is not really a ground establishing exceptional circumstances warranting the discretion of the court to be invoked in his favour. There is no real basis made out here to so grant in his favour. With the medical evidence non-existent, there is nothing to be termed exceptional to waive the discretion of the Court in favour of the applicant.
   
7. The allegation against the applicant is within the terms of section 9 (1) (c) (i) (ii) (iii) of the bail Act. There is a serious assault and a threat of violence to another person. And also, of having and possessing a dangerous weapon to commit the offence. They are basis for the rejection of bail. And here I find no other evidence to sway otherwise. It is firm that the boundaries set out by section 4 of the bail Act has not been set aside in favour of the application by the applicant combining the two in aggregate. He has not provided the information laid by police charging him in the district Court from which he has been committed to the Court here. But in the affidavit filed of Nei Pige dated 03^rd July 2025 filed of that day, he deposes that, “The applicant is from Yango Village in Laiagam District in Enga Province. Investigation have established that on the 20^th October 2023, the applicant and his relatives were armed with bush knives, sticks and stone and chased the deceased and his relatives at the ATS Dark Street. They apprehended the deceased near ATS Army Barracks and slashed him multiple times on his head with bush knives and cut both his ankles, causing his death.
   
8. The applicant and his accomplices fled the scene after killing the deceased. The applicant tried to escape to his home village in Enga Province on the same day via Air Niugini. He was issued boarding pass to depart Port Moresby for Goroka at 02.50pm (PX164) when he was apprehended by Police at the Departure Lounge.”
   
9. I am however concerned that if he is granted bail, there is a high likelihood that he will abscond bail.”
   
10. These fulfil section 9 (1) (c) of the bail Act. Further the objection and the grounds laid out by the policeman is real. Because the applicant has by the material he has placed in court attempted to abscond the allegation against himself. As the policeman has summed, He will escape as he did here when caught, he was trying to board an aircraft to Goroka when caught at the departure lounge Jackson Airport. For his own safety he remains in custody. This assertion is very real and credible. There is really no basis for the applicant against the grounds under section 9 (1) (c) of the Bail Act.
    
11. The applicant in response to this argument relies on the affidavits of Lasen Pindae and Rex Nandape both individually dated the 27^th August 2024 filed 28^th August 2024 respectively. Both pledge that they will each be guarantors of the applicant should he be granted bail. Each pledge K500 as surety for the bail. Both have known the applicant for 10 years. Each is a community leader in their respective communities where they reside. In each case are self-serving and cannot be verified further. In the bail rules form 1 Rex Nandape is a tribesman and Lasen Pindae is a good friend. Given these the balance in my view is not tilted in favour of the application because both guarantors proposed are relation and friend to make this happen, State v Kikala [2023] PGSC 15; SC2355 (22 February 2023).
    
12. When there is a breach in bail it is a simple matter to get the guarantors to secure the attendance of the applicant. There is no resort to self help as here where the lives of the applicant out on bail is not guaranteed. This would be what the proposed guarantors would depose to, that there is peace in the community. The matter is now within the realm of the law to see out what Justice draws given. The guarantor a leader deposes that there is no likelihood of further trouble because of this allegation by the applicants. This is not the status of the evidence of the guarantors both proposed. And in my view do not advance his application in his favour to invoke the discretion of the court to grant. I do not have any guarantee of his safety whilst on bail. And of further criminal offences against in retaliation of the allegation he now faces.
    
13. And there is no evidence filed by the applicant that refutes what is set out by section 9 (1) (c) (i) (ii) (iii) (e) (f) of the Bail Act, and the evidence supporting here. And this view is supported by State v Paul [1986] PGNC 46; [1986] PNGLR 97; N537 (7 April 1986) where bail was refused because of section 9 (1) (c) (i) (ii) (iii) of the bail Act. The affidavit of Arresting Officer Nei Pige shows threat of violence upon another, use of violence in the commission of the assaults that led to death of the deceased really the balance is not tilted to grant of bail but refusal more than anything else.
    
14. It is trite that “there are substantial grounds for believing that one or more of the matters described in section 9 (1) (a) to (g) are present It is the existence of substantial grounds for the belief not the belief itself which is the crucial,” In Re—Fred Keating [(supra). There are no substantial grounds demonstrated in the application of the applicant. His materials relied do not establish substantial bases to constitute. The consequence is he has not demonstrated on the balance to secure the application in his favour, In re Bail Application by Hombi [2010] PGNC 84; N4080 (20 July 2010). This application has demonstrated no merit to be granted bail. In this balance is also the interests of society to deal with offenders once before the courts and therefore stricter and higher terms maybe imposed. Here the grounds do not hinge high enough to secure as exceptional circumstances. It is not as extra ordinary to constitute exceptional, Smedley v The State [1978] PGNC 45; [1978] PNGLR 452 (21 November 1978). He was convicted prisoner making application for bail pending his appeal. Here the applicant is yet to be convicted. But charged with wilful murder pursuant. He does not have the right to bail as of right. But must show exceptional circumstances. Likened as in that he has not demonstrated extra ordinary to constitute exceptional. He has not discharged the balance to be granted the application.
    
15. The decision that this Court makes must be in law. And in this regard the Court has a duty to be conscious of ever-increasing bench Warrant list which must be addressed by properly in the screening of applications for bail. Allowing bail must be based on surety, “Likely” that appearance is guaranteed Diawo, Re [1980] PNGLR 148 (4 July 1980). It is an exercise that will not defeat Justice. Or that it will lead to further problems in breaching the law and order. I mindful that this is a tribal conflict in the city, the National Capital District between, the deceased from Hela Province, and the Applicant from Enga. Both are prone to ignite further and there is no guarantee set out by the affidavits of both guarantors proposed here. There is no material before me that peace has been restored, and all is in order and reliance has now been placed on the process of law. That is not the material relied by the applicant here.
    
16. Here there is more than enough material that the applicant is prone and was in the act of running away from the allegation from the law. He was caught at the airport as he was running away by Police immediately after the wilful murder. He is original from Enga Province. The nearest province and airport to his province is Kagamuga in Mt Hagen Western Highlands. He was on that flight by the material that he has filed of an airline ticket and boarding pass on air Niugini to Goroka. That will be a drive by motor vehicle into Enga going through Mt Hagen Western Highlands Province. There is no evidence he was partaking in the Election as a candidate in a by election. There is no evidence independently that the Kagamuga airport Mt Hagen was not operational. It is his own assertion which are self-serving do not advance his cause even for the by election that he advances based. He has not discharged on the balance required that he will not run away from the allegations he now faces. He has not demonstrated together with the guarantors surety that he will be fixed to a location where he will be easily located whilst on bail. This is a very important aspect of any bail application that the applicant will be easily located and brought to court to face the allegation in law. The materials he has filed do not move his application in his favour for grant of bail. I will not exercise my discretion in his favour relating based.
    
17. The aggregate is that there are no exceptional circumstances demonstrated on the balance required. It remains clear that this application must be refused, and I so do. I order that the applicant remains remanded forthwith. Application is refused.
    

Ordered accordingly.
______________________________________________________________
Public Prosecutor : Lawyer for the State
Laken Lepatu Aigilo Lawyers : Lawyer for the Defendant