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Kakarabo v The State [1999] PNGLR 509 (8 June 1999)

[1999] PNGLR 509

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

in the matter of BAIL APPLICATION PURSUANT TO SECTION 4 AND SECTION 6 OF THE BAIL ACT;

TRIGA KAKARABO

V

THE STATE

GOROKA: KIRRIWOM J
4, 8 June 1999

BAIL APPLICATION – Wilful murder – Policeman – Bail pending committal and trial – Whether the fact that he is a long serving policeman constitutes exceptional circumstance.

Facts

The applicant was charged on 31 May 1999 with wilful murder. He applies to this Court to be released on bail pending police investigations and the committal proceedings to be finalised. It is not known how long this process will take before the accused knows whether there is a prima facie case for him to be committed to stand trial in the National Court.

The applicant is a long serving policeman holding the rank of senior constable and is the OIC Summons & Warrants Section of Goroka Police. He is alleged to have shot and killed another person with a police issue pump action shotgun on 15th July 1998 at Usege-efa village in Mohuveto. It is alleged that at that time, two other tribesmen who were also armed with homemade shotguns, accompanied him. This killing is connected with inter-tribal clash at Mohuveto.

In this application, the applicant relies on the ground that he denies the charge and that he is a policeman who will continue to be employed with the Police Force.

Held

1. Bail is a discretionary matter after considering all the circumstances of the case. The Court must also bear in mind that there is a right to bail under the Constitution but this right is unavailable in cases of wilful murder and treason - see Constitution s 42(6). However the Supreme Court held in In re Fred Keating [1983] PNGLR 133 that bail can still be considered in exceptional cases for persons charged with wilful murder as long as he is not disqualified by any of the considerations in the Bail Act s 9(1). But the considerations stipulated in s 9(1) Bail Act are also subject to the exercise of judicial discretion by the National and the Supreme Court. The applicant comes to this Court seeking bail because s 4 of the Bail Act does not empower other bail authorities to consider and determine bail.
   
2. Applicant has not shown any exceptional reasons why he should be given bail. The grounds he relies upon are not exceptional.
   
3. Evidence placed before the Court had substantial merits in the fears held by the State that the release of this accused on bail will definitely give rise to further inter-tribal or group conflicts. More innocent people are going to suffer.
   
4. The accused continues to have in his custody and control the pump action police issue shotgun that remains missing. He has the propensity to get into trouble while on bond.
   
5. Given the applicant’s background, for the protection of peace-loving and law-abiding people of Mohuveto, Bena, Eastern Highlands Province, his application for bail is refused.
   

Papua New Guinea cases cited

Bernard Juale v The State [1999] PNGLR 501.

Paul Olape v The State (1999) MP No. 426 of 1998 N1890 Unreported.

In re Fred Keating [1983] PNGLR 133.

Counsel

C Ashton-Lewis, for the State.
Michael Apie’e, for the applicant.

8 June 1999

KIRRIWOM J. This middle aged man appeared from police custody charged with a most serious crime of wilful murder. He applies to this Court to be released on bail. He was charged on 31st May 1999 and the committal proceedings are yet to be finalised when police investigations are completed. At this point in time it is not known how long this process will take before the accused knows whether there is a prima facie case for him to be committed to stand trial in the National Court or not.

The applicant is aged 44 years (estimate given by his lawyer), married with six children, and originates from Mohuveto No. 1 village, Bena, Eastern Highlands Province. At the time of his arrest he was residing at Faniufa on the outskirts of the township of Goroka. He is a long serving policeman holding the rank of senior constable and is the OIC Summons & Warrants Section of Goroka Police.

The affidavit of Michael Apie’e, Lawyer, of Public Solicitor’s Office, Goroka estimates the applicant to have given between 28 - 30 years of service to the Police Force. Going by his age at 44, that would make him the youngest police recruit at the age of 14. I don’t think this is correct. Either I am given an incorrect age estimate or the length of service could be shorter. Whichever it is, I am not helped much on the background of the applicant except that he is a cop who is allegedly gone bad.

The applicant is alleged to have shot and killed another person with a police issue pump action shotgun on 15th July 1998 at Usege-efa village in Mohuveto. It is alleged that at the time he was accompanied by two other tribesmen who were also armed with homemade shotguns. This killing is connected with inter-tribal clash at Mohuveto.

The grounds relied upon in this application is that the applicant denies the charge and that he is a policeman who will continue to be employed with the Police Force.

Bail is a discretionary matter after considering all the circumstances of the case. The Court must also bear in mind that there is a right to bail under the Constitution but this right is unavailable in cases of wilful murder and treason - see Constitution s 42(6). However the Supreme Court held in In re Fred Keating [1983] PNGLR 133 that bail can still be considered in exceptional cases for persons charged with wilful murder as long as he is not disqualified by any of the considerations in the Bail Act s 9(1). But the considerations stipulated in s 9(1) Bail Act are also subject to the exercise of judicial discretion by the National and the Supreme Court. The applicant comes to this Court seeking bail because s 4 of the Bail Act does not empower other bail authorities to consider and determine bail.

State strongly opposed bail and called three witnesses who gave evidence before me and expressed their reasons for not wanting the applicant released on bail. There was no rebuttal evidence from the applicant so the matters raised by the State remain unchallenged.

In summary the State’s objection to bail are mounted on these grounds:

1. This applicant was on a good behaviour bond after being found guilty for causing grievous bodily harm to another person, imposed on him by the National Court on 10th June 1998 here in Goroka. The alleged offence was committed just a little over a month from the day he was placed on good behaviour bond.
   
2. The applicant would commit an indictable offence if released on bail. The State owned pump action shotgun allegedly used by the applicant has not been returned to the State and is believed to be under his control and hidden somewhere. In support of this argument witnesses told this court that on an earlier charge when the applicant was released on bail, he instigated a tribal fight in their area. This fight resulted in many people getting killed.
   
3. Witnesses in this case also come from Mohuveto. State believes that there is strong possibility or likelihood of the applicant interfering with these witnesses.
   
4. Firearm was used in committing this alleged crime and the firearm still remains in custody and control of the applicant. There is no guarantee that he will not use it again.
   
5. The witnesses called by the State also stated that due to many lives lost in the tribal fight started by the applicant; there are many people in the village who are anxious to get their hands on him. There is therefore no guarantee that his own life is not in danger and also lives of other innocent persons.
   

Applicant had not countered any of these arguments raised by the State except to say that the evidence tendered by the State caught them unaware or by surprise. I must say at the outset that this is a very lame and weak argument. It is not good for counsel to pursue an application for bail for a person charged with a very serious crime half-cocked and not present it in a prepared and convincing manner. In this case the State has evidently and quite convincingly turned the table on the applicant to satisfy this Court as to why he should be released on bail given the background he comes from. I am surprised that counsel for the applicant saw fit to pursue this application when there are ethical considerations involved if he was aware of the background of the accused and the good behaviour bond. He was only convicted in June last year and naturally he would have been represented by the Public Solicitor. What is counsel’s duty to Court in a situation like this where Counsel knows his client’s prior conviction and breach of bond but he nevertheless applies to have such a person released again on bail? Is duty to client much more important than the duty to the general public and duty to be honest with the Court? I will not labour on these ethical issues. It became a subject of momentary concern to me because counsel for the applicant appeared to have been caught unprepared with these revelations about his client when this fact they ought to be within his knowledge if he was in his present office in Goroka in June 1998.

It is unfortunate that the State had to adduce evidence of prior conviction to oppose this application for bail. On reflection there was no other way. After all there is evidence of this accused abusing his bail conditions once before when he started a tribal fight. This evidence is relevant for subsequent bail consideration for the same person. Therefore quite correctly, this Court was entitled to be provided with that information.

Applicant has not shown any exceptional reasons why he should be given bail. The grounds he relies upon are not exceptional. What does it matter if he denies the charge? There is no question about his innocence until proven guilty. That is a matter for substantive hearing.

Does the applicant being a policeman make him an exceptional case to be released on bail? It was submitted that it would be unsafe to remand the applicant in the custody of the prisons especially from other inmates. Similar argument was raised in the case of Bernard Juale v The State [1999] PNGLR 501. Bernard Juale was a traffic policeman in Port Moresby who paid or hired some ‘boys’ to kill his wife. In return he was to give them some money and a high-powered automatic firearm such as M15. On the day of the killing he drove his wife to 5 mile Mobil Service Station as pre-arranged where he left his wife and child sitting in the car and he walked into the store. While he waited inside the store his ‘boys’ arrived in another car, pulled up beside his stationary vehicle were they shot his wife on the head at point-blank and escaped. Two of the boys confessed to the killing and were sent to jail. They later gave evidence on behalf of the State against Bernard Juale. Bernard’s lawyer submitted that his client’s safety in prison cannot be guaranteed by the fact of him being a policeman and there would be inmates in the jail who would want to even scores with him for their arrests. His wife’s relatives too, it was submitted were after him and as such he would be much safer outside the prison in the custody of his own relatives. There was also evidence of his own house being subject of constant surveillance by strange people in different vehicles driving past every now and again. In rejecting that theory of policemen defendants being vulnerable or exposed to attacks from other inmates in prison remand, I quote what I said in Bernard Juale ‘I will not accept -- assertion that the applicant will be safer outside in the protection of his family and relatives than in custody. If such protection outside is to be offered by the police, that may very well be in order. But I cannot accept that a self-appointed band of tribesmen or relatives will do much better job of protecting him than CIS personnel empowered and charged by law to provide this service to those persons committed to their custody’. Consequently bail was refused.

The seriousness of this case is the same as in the case of Paul Olape v The State (1999) MP No. 426 of 1998 N1890 Unreported. The applicant Paul Olape was said to be the mastermind or the man who orchestrated the brutal slayings of a family (a man, his wife and a relative) in their house at the 9-mile settlement of Port Moresby by a gang of ‘warriors’ and their bodies were burnt together with the house. Two men pleaded guilty and were sent to jail. The applicant was said to be the man who planned it. The applicant owned several stores and tucker-shops in Erima and 9 Mile and was a public figure in the area of 9 Mile and Erima settlements. The deceased Peter Marinae also owned some stores in the City. The deceased Peter Marinae was from Sepik but married to a Chimbu. The other deceased man was the woman’s relative. This massacre led to a tribal clash between the Taris on one side and the Chimbus on the other. He was charged with wilful murder and he applied for bail. Bail was refused because there was a real likelihood of a renewed ethnic clash between the Chimbus and the Taris. I quote what I said in that case:

"I am therefore minded to give some weight to the submission by the State about the potential danger of a renewed ethnic clash between the groups following the arrest of the applicant. I think there is some substance in the argument that the applicant’s detention in custody is necessary for his own protection. But it is not simply for his protection, it is also for the benefit of the wider community, for preservation of peace and order amongst all peace-loving people at 8 Mile Settlement and in the City of Port Moresby. From the same incident two persons are already serving jail sentences - whatever their standing was in the community before the incident is unknown, but for the applicant to be charged as the man behind the trouble, his standing in the community alone is sufficient to spark off fresh emotions. I think this Court will be acting irresponsibly if it gave little or no regard to these considerations. I therefore do not accept counsel’s submission that from March 1997 to the date of his arrest there was no sign or threat of imminent danger to the applicant. That was a different time and some suspects were already in the hands of the police two of whom are now serving sentences. But this is another time and the allegation singles out the applicant as the key figure and that places him in a more vulnerable position as a potential target for payback or revenge. There is no doubt that for such a brutal multiple murder like this, the wounds take a long time to heal. Courts cannot be too insensitive to human weaknesses when emotions run high . . . "

I am quite convinced by the evidence placed before me that there are substantial merits in the fears held by the State that the release of this accused on bail will definitely give rise to further inter-tribal or group conflicts. More innocent people are going to suffer. The accused continues to have in his custody and control the pump action police issue shotgun that remains missing. He has the propensity to get into trouble while on bond. Given the applicant’s background, for the protection of peace-loving and law-abiding people of Mohuveto, Bena, Eastern Highlands Province, I refuse the application for bail.

Lawyer for the State: Public Prosecutor.
Lawyer for the prisoner: Public Solicitor.