SC2182

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APP NO 6 OF 2021

FRANCIS WALAMI
Applicant

V

THE STATE
Respondent

Waigani: Cannings J, Murray J, Narokobi J
2021: 21st, 22nd December

BAIL – application to Supreme Court after refusal of bail by National Court – Bail Act, Section 13(2) – applicant charged with wilful murder – relevance of considerations in Bail Act, Section 9(1) – whether exceptional circumstances warranting bail.

The applicant was detained in custody in connection with a charge of wilful murder and applied to the Supreme Court for bail, following refusal of bail by the National Court. The applicant argued that he is a TB patient and the conditions of detention are unsuitable for a person in his condition and he needs ready access to a hospital fully equipped to deal with his condition, which is life-threatening. 

Held: 

(1)	A bail application under s 13(2) is a fresh bail application, not an appeal, and the applicant is under no obligation to establish that bail was wrongly refused or that there has been a change in circumstances following refusal of bail.

(2)	An applicant charged with wilful murder enjoys no presumption in favour of granting of bail.

(3)	If the State opposes bail, including for a person charged with wilful murder, it should establish that one of the circumstances in s 9(1) of the Bail Act apply.

(4)	An applicant charged with wilful murder must, in order to convince the court to exercise its discretion in his favour, show that exceptional circumstances make his continued detention unjustified.

(5)	The applicant failed to prove exceptional circumstances as his medical condition is not life-threatening and can safely be managed within the correctional institution and there is no evidence that he has been denied treatment and no evidence that he has brought his medical condition to the attention of the jail commander. Bail refused.

Cases Cited

The following cases are cited in the judgment:

Application of Ching Loon Chan (2007) SC858
Arua Maraga v The State (2010) SC1573
Bernard Juale v The State (1999) N1887
Fred Keating v The State [1983] PNGLR 133
Noah Karo v The State (2009) SC998
Theo Yasause v The State (2011) SC1112

Counsel

N Hukula, for the Applicant 
T Kametan, for the Respondent 

22nd December, 2021

1.      BY THE COURT: Francis Walami applies to the Supreme Court for bail under s 13(2) of the Bail Act after being refused bail by the National Court on two occasions. 

2.     It is not an appeal against the decisions of the National Court to refuse bail. It is a fresh application, which means that the applicant is under no obligation to establish that bail was wrongly refused or that there has been a relevant change in circumstances. He may rely on the same material he put before the National Court. He can raise new grounds or arguments or abandon grounds that were put before the National Court (Fred Keating v The State [1983] PNGLR 133, Noah Karo v The State (2009) SC998).

3.     The applicant has been in custody since December 2019. He is charged with wilful murder under s 299(1) of the Criminal Code in relation to the shooting death of a man at Panakawa, Western Province on 25 August 2019. 4.     He is a member of the Police Force. He was a member of a police squad at Panakawa at the time of the death. It is alleged that he shot the deceased with a Police-issued firearm. He is aged 28 years and has two wives and one child and cares for his four younger siblings and normally resides at Red Sea Police Barracks, Bomana, National Capital District. 

5.     The applicant was only recently, on 20 December 2021, committed by the District Court to stand trial in the National Court.

6.     His bail application must be heard by the full court of the Supreme Court. His is not an application under s 11 of the Bail Act for bail pending appeal, which can be heard by a single Judge of the Supreme Court under s 10 of the Supreme Court Act (Application of Ching Loon Chan (2007) SC858, Bernard Uriap v The State (2011) SC1108). 

7.     Because the applicant is charged with wilful murder he does not enjoy the presumption in favour of bail arising from s 42(6) of the Constitution that operates in favour of a bail applicant charged with any offence other than wilful murder or treason. However, he does enjoy the benefit of s 9(1) of the Bail Act, which means that bail can only be refused if the Court is satisfied that one or more of the circumstances in that provision apply. Here, the police brief relied on by the State demonstrates that the circumstances in s 9(1)(c)(i), (ii) and (iii) apply in that the alleged act constituting the offence in respect of which the applicant is in custody consists of a serious assault, a threat of violence and possession of a firearm. This does not mean that the Court is obliged to refuse bail. The decision whether to grant or refuse bail, and if to grant bail the conditions to be imposed, remain matters for the discretion of the court (Bernard Juale v The State (1999) N1887). 

8.     However, as the applicant is charged with wilful murder he must, in order to convince the Court to exercise its discretion in his favour, show that exceptional circumstances make his continued detention unjustified (Theo Yasause v The State (2011) SC1112).

DO EXCEPTIONAL CIRCUMSTANCES MAKE THE APPLICANT’S CONTINUED DETENTION UNJUSTIFIED?

9.     The applicant relies on his medical condition. There is evidence in affidavits of two doctors, Dr Joel Martin of the Emergency Department, Port Moresby General Hospital, and Dr Thomas Du, Physician, Port Moresby General Hospital, dated May and July 2021 respectively, that the applicant:

•	was diagnosed with tuberculosis (TB) in March 2020 and is a known patient at the TB Clinic;

•	did not complete his treatment at that time due to being taken from the hospital back to Bomana correctional institution;

•	faces health risks due to overcrowding and poor ventilation at the prison;

•	eventually completed his TB treatment later in 2020, but had lingering back and shoulder pain;

•	has been diagnosed with chronic osteoarthritis;

•	has been prescribed painkillers and advised to see a physiotherapist for pain treatment and management.

10.      A bail applicant’s poor medical condition can constitute exceptional circumstances warranting bail, but the condition has to be life-threatening such that continued detention would seriously endanger the health and life of the applicant (Arua Maraga v The State (2010) SC1573). 

11.    There is no evidence that puts the applicant’s medical condition in that category. On the contrary, the evidence of the Bomana Jail Commander, Superintendent Yelly Oiufa, is that TB patients can safely be managed within the Bomana correctional institution. There is no evidence that the applicant has been denied treatment and no evidence that he has brought his medical condition to the attention of the jail commander. He has completed his TB treatment. There is no evidence that he is showing any TB symptoms. There is evidence that he is suffering from chronic osteoarthritis. He is being treated for pain connected with that ailment. It is far from a life-threatening condition. 

12.     For the above reasons we are not satisfied that exceptional circumstances exist that make the applicant’s continued detention unjustified. The application will be refused.

ORDER 

13.     The application is refused on the grounds that:

(a)	the circumstances in s 9(1)(c)(i), (ii) and (iii) of the Bail Act apply, in that the alleged act constituting the offence in respect of which the applicant is in custody consists of a serious assault, a threat of violence and possession of a firearm; and

(b)	there are no exceptional circumstances that make continued detention unjustified.

Judgment accordingly.
_____________________________________________________________
Public Solicitor: Lawyer for the Applicant	
Public Prosecutor: Lawyer for the Respondent