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Aia v The State [2001] PGNC 116; N2124 (21 September 2001)

N2124

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP 614 OF 2001
MP 615 OF 2001

BETWEEN:

MICHAEL AIA and MICHAEL MANEBA

AND:

THE STATE

PRACTISE AND PROCEDURE – Criminal Law – Bail Application – Wilful Murder – exceptional circumstances – relevant considerations – Bail authority has discretion upon consideration of s.9 of Bail Act

Constitution s. 42 (6)
Bail Act s. 9

Cases cited:
Fred Keating v The State [1983] PNGLR 133
Bernard Juale v. the State (1999) N1877
Malaki Kongo and Joe Akosi v. the State N1544 23rd September 1996

Counsel

F. Alua for Applicant
R. Luman for State

21 September, 2001

DAVANI, J: I will deal with the both applications together as they emanate from the same facts.

This is an application for bail made pursuant to s.42(6) of the Constitution and s.6 of the Bail Chapter 340. The right to bail is guaranteed by s.42(6) of the Constitution. It states;

"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 interest of justice otherwise require".

In this case, the applicant is charged with wilful murder pursuant to s.299 of the Criminal Code Act. The state alleges that on Tuesday 26th July 2001 at Mou village between the hours of 10:30 am and 11:00 am, the Applicant together with one other, engaged in an argument with the Deceased over the ownership of certain bundles of betelnuts that the Deceased wanted to sell. This then led to the Deceased starting a fight with the Applicant Michael Maneba.

It is alleged then the Applicant then, produced a knife and stabbed the Deceased in the stomach. Death was instantaneous.

The State opposes the application for bail relying on s.9 (i)(c)(i) and S.9 (i)(c)(ii) and s.9 (e) of the Bail act, which state;

"9. Bail not to be refused except on certain grounds

(i) 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;

...

(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

...

(e) it is necessary for the persons own protection for him to be in custody; or

I note with trepidation that applicants counsel has not addressed the court on the effect of s.42 (6) of the Constitution, as the Applicants in this case are both charged with Wilful Murder. S.42 (6) unilaterally states that the right to bail does not apply to treason or wilful murder cases. In Fred Keating v The State [1983] PNGLR 133, their Honours, the then Kidu CJ and Andrew J said;

"In cases of wilful murder, only those considerations set out in s.9 (1) (of the Bail Act) apply, and no others, because the interests of justice in s.3 of this act and because s.42 (6) of the Constitution does not apply to wilful murder and treason cases."

In Michael Menabas affidavit, he states he had no intention of killing the accused. Michael Aia deposed that he was only trying to prevent and stop the fight between Michael Meneba, the Deceased and others. It is not my role to assess the evidence before me but I should consider the interests of justice and therefore will involve considerations other than the criteria for refusing bail as established in S.9. However these considerations have not been put before me. As Kirriwom J said in Bernard Juale v the State (1999 N1887;

".... I think there will be, as is always the case, exceptional circumstances, such a those alluded to by Andrew J in Re Fred Keating, that would warrant bail, even in wilful murder cases."

What are these exceptional circumstances? The Applicants have not shown any. The affidavits filed by the Applicants are very brief. They do not depose to matters pertaining to exceptional circumstances, some of which may be that, prolonged detention is adverse to their defence or that their social activities, family welfare, employment or business would be in jeopardy. These are matters that are relevant to the applicants and ought to have been covered but were not.

In any event, I am also satisfied that it is necessary for the applicants own protection that they remain in custody as this is a death that occurred in a village, and no doubt, the Deceased’s relatives and family are still grieving and may take matters into their own hands. The Applicants lawyer has not produced evidence to show that the applicants can reside elsewhere other than Mou Village, pending their trial. They have not shown that the Applicants lives may not be in danger or is not threatened. I do not know, as I do not have the evidence or submissions before me. I find s.9 (i)(e) has been made out.

Further to that, I am not satisfied that the both accused are likely to appear at trial. Each accused has proposed a close relative as his guarantor. As Batari AJ, as he then was, said in Malaki Kougo and Joe Akusi v The State N1544, 23 September 1996;

"... a guarantor to a bail application should be someone with some standing and with means, preferably from outside the family. In wilful murder cases, there should at least be adequate guarantors in terms of status and means...."

I find S.9 (i)(a) has been made out.

The applicant Michael Aia, who is 16 years old, should not have been remanded in Bomana jail. As he is a juvenile, I order that he be transferred to the Hohola Remand Centre and be held there, in remand, pending the trial and completion of the case or until such time he attains majority age, whichever one occurs first. This transfer must take effect immediately.

I refuse bail for the both applicants.
_________________________________________________________________________
Lawyers for the Sate: Office of the Public Prosecutor
Lawyers for the Applicants: Patterson Lawyers