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Guant v Independent State of Papua New Guinea [2009] PGNC 14; N3576 (6 January 2009)

N3576

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 505 OF 2008

IN THE MATTER OF THE BAIL ACT CHAPTER 340

AND:

IN THE MATTER OF SECTION 42(6) OF THE CONSTITUTION

BETWEEN:

PAUL GUANT
Applicant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Minj & Mount Hagen: Makail, AJ
2008: 14 November &
2009: 6 January

CRIMINAL LAW - Bail - Applicant charged with wilful murder - Over crowdedness - Health risk - Long delay to stand trial - Insufficiency of evidence of adverse effect - No exceptional circumstances established - Compensation as mark or symbol of peace - Cannot act as substitute for security and safety of Applicant - Proposed guarantors not proper and suitable persons - Blood relatives of applicant - Apprehension of bias and conflict of interest - Application refused - Constitution - Section 42(6) Bail Act - Sections 4, 6 & 9 - Criminal Code - Section 299.

Cases cited:

Re Fred Keating -v- The State [1983] PNGLR 133
Re Kou Kua [1984] PNGLR 22
Malaki Kongo & Joe Akusi -v- The State (1996) N1544
Michael Aia & Michael Maneba -v- The State (2001) N2124
Steve Lester -v- The State (2001) N2044
Lawrence Tapi -v- The State: MP No 742 of 2007 (Unnumbered & Unreported Judgment of 27 February 2008)
Briggs Negapigi -v- The State: MP No 493 of 2007 (Unnumbered & Unreported Judgment of 28 February 2008)
Mathew Yukai Mandalo -v- The State: MP No 420 of 2008 (Unnumbered & Unreported Judgment of 18 November 2008)
Paul Pawa -v- The State: CR No 491 of 2008 (Unnumbered & Unreported Judgment of 6 January 2009)

Counsel:

Mr P. Kumo, for the Applicant
Mr J. Waine, for the Respondent

RULING ON APPLICATION FOR BAIL

6 January, 2009

1. MAKAIL AJ: The Applicant applies for bail pursuant to section 42(6) of the Constitution and sections 4 and 6 of the Bail Act after he was charged with one count of wilful murder of one Norman Heio on 4 September 2008 contrary to section 299 of the Criminal Code.

BRIEF FACTS

2. From the Summary of Facts contained in the Affidavit of the Applicant sworn on 10 October 2008 and filed on 11 November 2008, it is alleged that at about 8 o’clock on the night of 4 September 2008, the Applicant and two (2) accomplices went to the house of the deceased. The deceased was in the house with 6 women and 5 children. The Applicant and his accomplices went into the house and asked for some cigarettes. They were given some and they went out of the house. A few minutes later, the Applicant returned, kicked open the door of the house and went inside with a knife. He started stabbing and kicking the occupants and in the process stabbed the deceased and another victim with the knife.

3. The deceased was rushed to the Mt Hagen General Hospital but died on arrival. The reason for the attack on the deceased and others is not known but the Applicant was apprehended and handed over to the police where he was charged and detained.

GROUNDS FOR APPLICATION

4. The Applicant vigorously denies the offence and says that he did not commit it. He says that he is married and has one infant child and seeks bail to be with his wife and child. He also says that there is a long list of outstanding cases before the National Court here in Mt Hagen. As such, it would take a long time before he would be tried by the National Court, thus he seeks bail pending his trial.

5. Further, he says that the living condition at Baisu Corrective Institute is not conducive to live in as it is over crowded, thus posing a serious health risk. The risk of contracting diseases such as typhoid, tuberculosis, scabies and diarrhoea is very high, hence he seeks bail. In any case, he says that his relatives have paid compensation of K6, 000.00 and 6 huge pigs valued at K1, 500.00 each to the relatives of the deceased. As such, his life is not in danger.

6. The State did not file any Affidavits in reply but simply made submissions in opposition to the application.

7. The Applicant proposes only two guarantors. They are:

1. Paul Kiap; and

2. Rose Ekep Yoka.

8. By his Affidavit sworn on 10th October 2008 and filed on 7 November 2008, Paul Kiap deposes that he is from Kala village of Hagen Central and employed as a salesman at Chemica Limited in Mt Hagen. He is married and resides at Kala village. He is the elder brother of the Applicant and says that the Applicant is a law abiding citizen. This is the first time for the Applicant to be arrested and detained for this alleged offence. He pledges to be one of the guarantors of the Applicant and is prepared to put up K500.00 as cash surety if the Applicant is given bail. He is fully aware of the duties and responsibilities of a guarantor and knows the risks involved if appointed by the Court as one of the guarantors of the Applicant.

9. Rose Ekep Yoka deposes in her Affidavit sworn on 10 October 2008 and filed on 7 November 2008, that she is from Kala village of Hagen Central and married to a businessman named James Yoka and has two children. She is the manageress of Mesda Finance Limited. She says, the Applicant is her younger brother and she knows him to be a law abiding citizen. This is the first time for the Applicant to be arrested and detained for this alleged offence. She pledges to be one of the guarantors of the Applicant and is prepared to put up K500.00 as cash surety if the Applicant is given bail. She is fully aware of the duties and responsibilities of a guarantor and knows the risks involved if appointed by the Court as one of the guarantors of the Applicant.

PARTIES’ SUBMISSIONS

10. Mr Kumo of counsel for the Applicant submits that whilst the charge against the Applicant is wilful murder and bail is not readily available, there are at least three good and justifiable reasons for the Applicant to be released on bail. First, he submits that there is a long list of outstanding cases before the National Court here in Mt Hagen. As such, it would take a long time before the Applicant would be tried by the National Court, thus he should be given bail pending his trial.

11. Secondly, the living condition at Baisu Corrective Institute is not conducive to live in as it is over crowded, thus posing a serious health risk. The risk of contracting diseases such as typhoid, tuberculosis, scabies and diarrhoea is very high, hence he seeks bail.

12. In any case, he submits that the Applicant’s relatives have paid compensation of K6, 000.00 and six (6) huge pigs valued at K1, 500.00 each to the relatives of the deceased. As such, the Applicant’s life is not in danger. Hence, his security and safety upon early release on bail pending trial is guaranteed. For this reason, he says that any security and safety issue that may be raised by the State under section 9(1) (e) of the Bail Act should be dismissed by the Court and the Applicant should be given bail.

13. Mr Waine of counsel for the State did not oppose the application for bail but raised three matters for the Court to take into account. First, he says that the onus is on the Applicant to show that his continued detention is unjustified since he has been charged with wilful murder where bail is not readily available. Secondly, if bail is given to the Applicant, he asks that the Court should impose strict conditions to ensure that the Applicant will attend trial when a trial date is given at a later date.

14. Finally, if bail is given, he objects to the two proposed guarantors of the Applicant because he says that they are blood relatives of the Applicant and in this kind of situation, the Court would rather have persons who are not related by blood or marriage to act as guarantors of Applicants for bail.

ISSUES

15. From the evidence and the submissions of both counsel, five issues emerge and they are as follows:

1. whether long delay to stand trial is a ground for bail;

2. if so, whether the Applicant has established by appropriate evidence this ground;

3. whether over crowdedness at Baisu Corrective Institute is a ground for bail;

4. if so, whether the Applicant has established by appropriate evidence this ground;

5. whether the Applicant’s security and safety is at risk; and

6. if bail is granted, are the proposed guarantors proper and suitable persons to be appointed as guarantors of the Applicant.

REASONS FOR DECISION

16. The offence of wilful murder is a very serious offence. It is a deliberate act of termination of ones life by another. That is why Parliament decided that bail is not readily available to a person charged with this offence. The reasoning behind this law is that, persons accused of committing this offence must be separated from the society by being locked away so that the society is freed from such persons until the Court decides the guilt or otherwise of such persons.

17. If persons accused of committing wilful murder think that they should be freed for the time being whilst awaiting their trial, then they do have a right to apply for bail to the Supreme and National Courts pursuant to section 4(1) of the Bail Act. This provision gives jurisdiction to only the Supreme and National Courts to entertain applications for bail. But, whilst both the Supreme and National Courts have a wide discretion to admit an Applicant to bail even where one or more considerations under section 9(1) of the Bail Act are present, the onus is on the Applicant to show why his detention in custody is unjustified: see Re Fred Keating [1983] PNGLR 133 and Re Kou Dua [1984] PNGLR 22.

18. In my view, the onus is an onerous one and falls on the Applicant to discharge it. In Re Kou Dua’s case (supra), a case of wilful murder at p 23 of the Judgment, the late Chief Justice Sir Buri Kidu stated that:

"In the Re Keating [1983] PNGLR 133, the Supreme Court last year held that in the case of a bail application of a person charged with willful murder if any one or more of the criteria in s.9 of the Bail Act is or are shown to exist the onus is then on the applicant to show why he/she should be granted bail."

19. See also Steve Lester -v- The State (2001) N2044 and Mathew Yukai Mandalo -v- The State: MP No 420 of 2008 (Unnumbered & Unreported Judgment of 18th November 2008).

20. Turning to the first issue now, can it be said that prolong detention at Baisu Corrective Institute is an exceptional ground for bail? His Honour Batari AJ, (as he then was) gave some examples of exceptional grounds in Malaki Kongo & Joe Akusi -v- The State (1996) N1544. There, His Honour said:

"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 accusers 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". (Emphasis is mine).

21. Her Honour Davani J, followed the decision of Malaki Kongo & Joe Akusi (supra) in Michael Aia & Michael Maneba -v- The State (2001) N2124 where she said at p 3:

"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". (Emphasis is mine).

22. Their Honours seem to say that prolong detention maybe an exceptional ground for bail but also qualify it by also saying that it must have an adverse effect on an Applicant like for example, adverse effect on the defence, health, family welfare, employment or business of an Applicant. In other words, I think what their Honours are saying is that, prolong detention alone is not a sole determinative factor. An Applicant must also establish that due to the prolong detention, he has being denied the opportunity to properly defend himself or prepare his case, or has suffered from ill health and so forth. Unless an Applicant establishes the adverse effect of prolong detention, it alone is not a strong factor for a successful bail application.

23. I am in agreement with their views. An Applicant must establish the adverse effect of prolong detention on him or her but only to the extent that the adverse effect relates to his or her defence of the charge and his or her ill health. But I do not agree that the adverse effect on an Applicant’s family welfare, employment and business are exceptional grounds for a bail application, for I consider them as natural consequences of one being charged and detained for committing an alleged offence(s). I have expressed my views on these factors in my judgments of Lawrence Tapi -v- The State: MP 742 of 2007 (Unnumbered & Unreported Judgment of 27 February 2008) and Briggs Nega pigi -v- The State: MP No 493 of 2007 (Unnumbered & Unreported Judgment of 28 February 2008) and I find no reason to depart from them.

24. It is therefore my view that, prolong detention is a relevant factor, but it must be adverse to the Applicant’s defence or health before it can be an exceptional ground for bail. This leads me to the second issue and that is, in the present case, has the Applicant established that prolong detention is adverse to his defence or health?

25. My perusal of his Affidavit sworn on 10 October 2008 and filed on 11 November 2008 do not show that the Applicant is being prejudiced in his defence nor is he suffering from any ill health because of the prolong detention. The only suggestion of prejudice is in paragraphs 9 of his Affidavit where he deposes that, "due to the large number of cases pending to be heard before the court, I know my case will take a long time to be heard and this will prolong my stay in custody".

26. In my view, this statement of the Applicant is a general assertion not supported by any independent evidence. I do not know how many remandees there are at Baisu Corrective Institute at the moment. If the Applicant relies on the large number of outstanding cases to be dealt with as a ground for the application, then I consider it important for the Applicant to give an account of how many remandees are at Baisu Corrective Institute in order for the Court to appreciate the concern raised by him. It is simply not good enough to assert that there are many remandees, hence will delay his trial.

27. There are at least three judges at Mt Hagen National Court and in my view, that number is sufficient for the time being to deal with the back log of criminal cases for Western Highlands Province alone if parties and their lawyers, more so the lawyers for the Respondent are ready to proceed with the cases. In other words, it would not take long to have the Applicant tried if the parties and their lawyers are ready even though there may be a long list of pending cases before the National Court.

28. Further, as I said above, the statement of the Applicant is a general assertion. I do not see how he is being adversely affected or prejudiced in his defence of the charge because of the long delay. What he should be considering and doing is getting in touch with his lawyers whilst waiting to prepare his defence. Not complaining that it will be too long a wait to get tried. Hence, I do not see any merits in this argument.

29. In any case, I am of the view that just because there is a large number of National Court remandees at Baisu Corrective Institute does not automatically justify an Applicant to be admitted to bail. As His Honour Batari AJ, (as he then was) said in Malaki Kongo & Joe Akusi (supra), this is not a sole determinative factor. I have to take into account other factors too.

30. And when I will so do, I am sure the other factors will operate against this factor.

31. Finally, I do not have any evidence of the Applicant suffering from any ill health placed before me as a result of the prolonged detention. There is no medical report from a doctor to suggest that due to the prolonged detention, the Applicant has fallen ill. In the absence of such evidence, I conclude that he is fit and well at the moment.

32. And this leads me to further conclude that the Applicant has failed to show that prolong detention has adversely affected his defence of the charge or his health and I dismiss this ground.

33. This then leads me to the next issue and that is, over crowdedness at the remand cell at Baisu Corrective Services Institute. Is it an exceptional circumstance and relevant to an application for bail? It is my view that it is not. I say this because there must be evidence of serious health risk associated with over crowdedness to make it an exceptional ground. In other words, over crowdedness per se is not sufficient to mount an exceptional case for a successful bail application.

34. Further, I consider that the Applicant’s statement in paragraphs 7 & 8 of his Affidavit where he states that, "Although, I realize the seriousness of the charge, I wish to be granted bail as the cells in the remand section here at Baisu CIS goal are very small and unhygienic and the conditions are not conducive for human habitation. Because of the overcrowding in the cells, there is a serious health risk of sickness including typhoid, tuberculosis, scabies and other related diseases and it is inevitable I might contract any of it if I am further detained" are general assertions not supported by independent evidence.

35. In my view, these assertions the Applicant makes are serious because they suggest that the living condition at the remand cell of Baisu Corrective Institute is unfit for human habitation. Due to over crowdedness, it poses a serious health risk to the remandees. Thus, it is preferable to bring in evidence of facts and figures to support this ground of over crowdedness at the remand cell at Baisu Corrective Institute. Where is the Health authority’s report declaring the remand cell at Baisu Corrective Institute unfit for human habitation because of over crowdedness? In the absence of such evidence, I am not satisfied that the Applicant has established this ground.

36. Lastly, if the Applicant is granted bail, I believe the Applicant’s security and safety is at risk. But the Applicant says that his life is not at risk or in danger because his relatives had paid compensation to the relatives of the deceased. He says that his relatives gave K6,000.00 cash and 6 pigs worth K1,500.00 each. As a result, both sides are at peace and life is back to normal again.

37. Be that as it may, there is a matter that concerns me and I wish to comment on before I decide whether or not the Applicant’s security and safety is not a concern for all. That matter is the compensation culture. It is common in this part of the country. In some ways, it is a good culture but in other ways, it is not. It is bad cultural practice if it is used to buy ones way out of the law so to speak; that is to avoid criminal responsibility.

38. Putting it in the context of a bail application like in this case, it is used to make peace with the relatives of the deceased. In my view, at the same time it acts as a leverage to seek bail at the expense of ones safety. If it acts as a leverage to seek bail, this is where it is a bad cultural practice. I think ones safety should not be compromised simply because compensation is paid to the relatives of the victim or deceased as a mark or symbol of peace. In my view, whilst compensation is a mark or symbol of peace, it cannot act as a substitute for an Applicant’s security and safety.

39. Accordingly, I find that whilst the Applicant’s relatives had paid compensation to the relatives of the deceased, the risk or danger to the Applicant’s security and safety is still real and this disqualifies the Applicant from being given bail as far as section 9(1)(e) of the Bail Act is concern.

40. There is one final reason for me to refuse the application and that is that, the proposed guarantors are not proper and suitable persons. Here, I agree entirely with Mr Waine’s submission that they are disqualified to act as guarantors of the Applicant because they are blood relatives of the Applicant. Paul Kiap is the elder brother of the Applicant and Rose Ekep Yoka is a sister of the Applicant notwithstanding that they are persons of some standing in the community of Kala.

41. I am hesitant to approve their proposal to act as guarantors because there is an apprehension of bias and conflict of interest in existence between the Applicant and each of them by virtue of their brotherly and sisterly relationship. For example, there is the risk that the brother and sister might not bring the Applicant to trial in the event that he abscond bail. The Court would rather have persons who are not related by blood or marriage to be guarantors of Applicants to ensure neutrality.

42. I made brief observations on this very issue in the case of Paul Pawa -v- The State: CR No 491 of 2008 (Unnumbered & Unreported Judgment of 6 January 2009), a decision on a bail application which I handed down earlier today at p 16:

"In applications for bail, the Court has preferred guarantors who are persons not related to the Applicants either by blood or marriage and in this respect, I note Mr Rapa is a relative of the Applicant as they come from the same clan of the big Jika tribe. Hence, he is disqualified on this basis. See Malaki Kongo & Joe Akusi -v- The State (1996) N1544 which was followed in Michael Aia & Michael Maneba -v- The State (2001) N2124".

43. For this reason, the proposed guarantors are not proper and suitable persons to act as guarantors of the Applicant. This is another reason for me to decline the application for bail.

CONCLUSION

44. In the end, I am not satisfied that the Applicant has discharged the onus bestowed upon him. I refuse the application and the Applicant shall be remanded until the date of trial.

________________________________________

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Applicant