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Kongo v The State [1996] PGNC 36; N1544 (23 September 1996)

Unreported National Court Decisions

N1544

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 524 OF 1996
MALAKI KONGO AND JOE AKUSI
v
THE STATE

Waigani

Batari AJ
20 September 1996
23 September 1996

CRIMINAL LAW - Wilful murder - Bail Applications - Alleged facts - Sufficiency of - Strength of evidence against accused - Relevance - Use of medical report not tendered - Applicant to show cause why detention not justified - Guarantors - Sufficiency of.

CRIMINAL LAW - Practice and Procedure - Bail Applications - Public Solicitor - Junior counsels attesting to affidavits - Unsatisfactory of.

Cases Cited:
Re: Keatings Case [1983] PNGLR 133

Counsel:

T Suwae for the State

WO Enoki for the Applicants

RULING ON BAIL APPLICATION

23 September 1996

BATARI AJ: This is a joint application for Bail pursuant to s. 6 of the Bail Act. Both applicants are charged with the wilful murder of one Petrus Ako Pongel. They are in custody awaiting trial in the National Court. The jurisdiction of this Court to decide their application is vested under the Bail Act.

At this outset, I draw counsel’s attention to the unsatisfactory manner in which the supporting Affidavits are put before the Court. The main Affidavit is deposed to by Mr Siminji who is a relatively new lawyer recruited to the Office of the Public Solicitor shortly before my appointment to the bench early this year. This is about the second time such an Affidavit is deposed to in the name of a junior lawyer, exemplifying that may be a growing tendency away from accepted norm and practice which require opinions touching the defence, merits or substance of the case to be filed by the principal lawyer, being in this case, the Public Solicitor. The rationale is that the Public Solicitor under the Constitution has the sole responsibility and is accountable for all decisions, opinions and actions taken in the independent exercise of his functions. All informed legal aid matters must therefore be in the Public Solicitor’s name and documents in legal proceedings must bear his endorsement. In his absence, senior lawyers would act on his delegate. In essence, considered views and opinions of senior experienced lawyers have cogency and compelling respectability to and by the Court. Diligent counsel would therefore, in his duty to the Court and to his client, file court documents that are appropriately endorsed by a senior member of the Office or the legal profession. It is also trite that adherence to status precedence enables proper supervision and enhances accountability. I make these observations at the risk of stepping into the arena of the Public Solicitor’s administrative functions. However, this issue relates inherently to procedural regularity and applies generally.

The applicants’ lawyer relies only on the brief statement of facts which, as in most cases, is attached to the Charge Form. The statement contains bare minimum allegations against the applicants and several others who allegedly murdered Petrus Ako. The failure to disclose sufficient details of the charge, deprives the Court proper appraisal of the facts. Indeed, Mr Otto submits that this application should be decided only on the basis of Mr Siminji’s Affidavit. I agree that a judge should not have before him every detail of the case if he is likely to preside over the trial at some future time. However, it is also fundamental principle that the application is decided on sufficient facts. I bear in mind that the guilt or innocence of the applicants are not in issue at this point. In my view, where a bail application follows committal to stand trial as in this case, the application should be considered on the basis of the committal dispositions to the extent of their relevance.

The facts alleged that between 8.00pm and 9.00pm one Moses Alai assaulted the deceased and retreated to the darkness where his friends waited. The deceased followed him in pursuit. He was hit on his neck with an iron pipe by Malaki and stabbed with a knife by Moses Alai. Joseph who I assume, is the same Joe Akusi in this application was amongst those who waited in ambush and attacked the deceased. I assume also that Malaki is the same Malaki Kongo in this application.

Both applicants are from Mendi in the Southern Highlands Province. The deceased was from their same province. Malaki is aged 21 years and single. Joe Akusi is 25 years and married with one child. There is no indication that they were employed at the time of their arrest. Malaki lived with his sister while Joe lived with his mother, both at 8 Mile Settlement.

They would return to live with their relatives if released on Bail. It is contended that, because their case has been fixed for trial in April, 1997 their pre-trial detention would have been unduly long. Mr Siminji also deposed to difficulties families and relatives of the applicants are facing while they are in custody.

The applicants have no right to Bail under s. 42(6) of the Constitution. However, under s. 4 of the Bail Act persons charged with wilful murder are given the right to apply for Bail. And any such application is decided only on those considerations specified in s. 9(1) of the Bail Act. (See Fred Keating’s Case). State has opposed the application on the basis of s. 9(1) (c) (i) and (iii) of the Bail Act.

Malaki Kongo is connected to the charge by allegations that he attacked the deceased with a piece of iron pipe. Joe Akusi is also implicated by his alleged presence when the deceased was attacked. He is further alleged to have punched the deceased. The medical report is available on the applicant’s criminal trial File but not tendered. The applicants do not dispute the cause of death. Because of its relevance, I consider it is in the interest of justice that I refer to it. The report shows death resulted from a wound to the chest, causing collapse of the right lung and massive bleeding. There were also other injuries, peripheral to the fatal wounds observed.

I am satisfied that the allegations consisted of a serious assault and possession of “offensive weapons”. The accused have not denied the allegations in this application. I assume however that they will contest their involvement. The setting down of their case as a trial no doubt is based on instructions denying the alleged murder.

Although the provision of s. 9(1) (c) has been established, there is a discretion in the Court to grant bail. The onus is on the applicants to show why their detention in custody is not justified (Re: Fred Keating’s Case). By the time the accuseds are brought to trial in April, 1997 they would have spent over 12 months in custody if they are not released on bail. This is a relevant consideration in their favour. It is however not the sole determining factor. One may bear in mind also that, despite the long wait, case trials in Waigani could now be expeditiously dealt with through case listings so that the accused are at least assured of being brought to trial on fixed dates. There is no uncertainty of their being ever brought to trial.

Besides, there is no evidence or suggestion that prolonged detention is adverse to their health, for instance. Similarly a person detained on a wilful murder charge, in my view should show cause that his prolonged detention would either prejudice his defence or deny him the opportunity to adequately prepare his defence. He ought also to show cause that his detention would put his social activities and his family welfare, employment, or business engagements in jeopardy. These are some of the matters that in my view are relevant in the applicant’s favour and ought to have been covered in their applications. Those family difficulties they each spoke of through their lawyer in my view are not exceptional to them. I also do not see the urgency of such consideration when they have been in custody for some seven months now.

It was submitted that the applicants would comply with all bail conditions if granted bail. This is a generic statement without substance. The applicants have not shown for instance, their capacity to comply with Bail conditions of cash payment. Nor have they proposed conditions they are prepared and capable of complying with.

I am also not satisfied that they are likely to appear at their trial. Each accused has proposed a close relative as his guarantor. I have stated on other occasions that a guarantor to a bail application should be someone with some standing and with means, preferably from outside the family circles. In wilful murder cases, there should at least be adequate guarantors in terms of status and means or in number of suitable candidates. In the end result, I do not accept the proposed guarantors as adequate in the circumstances of the charge.

The applicants in my conclusion have not shown sufficient cause why their detention in custody is not justified. I reject their applications. I order that they be remanded pending their trial.

Lawyer for the State: P Mogish Public Prosecutor

Lawyer for the Accused: D Koeget A/Public Solicitor