N5472
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

MP NO 89 OF 2009

IN THE MATTER OF AN APPLICATION FOR BAIL
BY HENRY MANE AND 36 OTHERS

Kimbe: Cannings J
2009: 9, 10, 11, 13 March

BAIL – nature of right to bail – Constitution, Section 42(6) – Bail Act, Sections 4 and 6 – exercise of discretion whether to grant bail – conditions and length of detention as relevant considerations – human rights of remandees.

Thirty-seven men and juveniles were arrested and detained in custody. They were charged with offences under the Firearms Act and the Inter-Group Fighting Act. After almost one month in custody, and their cases still due for trial in the District Court, they applied for bail.

Held:

(1)	The Constitution, Section 42(6), creates a right to bail – unless the interests of justice require otherwise – in the case of a remandee charged with any offence other than wilful murder or treason.

(2)	The interests of justice may require that bail be refused if any of the circumstances prescribed by Section 9(1) of the Bail Act apply.

(3)	In the present case, Section 9(1)(c)(ii) and (iii) applied: the applicants are charged with threats of violence and possession of firearms.

(4)	Factors favouring the granting of bail are that some applicants are juveniles or attending school, and such persons require special treatment in the justice system.

(5)	Factors favouring refusal of bail are that: the applicants have been detained following the declaration of the area in which they live as a fighting zone; they were arrested as part of a police operation, which has had the effect of quelling fighting in the area; to allow them out on bail en masse may tend to re-inflame the situation which led to their arrest.

(6)	Though the applicants have been detained in overcrowded conditions, no clear evidence of human rights breaches was put before the court; there was no clear evidence that any of the applicants is suffering from any mental or physical infirmity which would render it inhumane for them to be further detained in custody; and they have been detained for a period of about one month, which is not unreasonable in all the circumstances.

(7)	Accordingly bail was refused to all but five applicants who are juveniles.

Cases cited

The following cases are cited in the judgment:

Bernard Juale v The State (1999) N1887
Fred Keating v The State [1983] PNGLR 133
Re Herman Kagl Diawo [1980] PNGLR 148

BAIL APPLICATIONS

This is a ruling on applications for bail made under the Constitution and the Bail Act.

Counsel

R Beli, for the applicants
A Kupmain, for the State

13th March, 2009

1. CANNINGS J: This is a ruling on applications for bail by 37 remandees of Lakiemata Correctional Institution, West New Britain Province. The applicants are all from Dami village in the Talasea area. They are mostly young men, aged from 16 to 35 years. They are members of the Marebu clan.

2. It is alleged that over a period of several weeks early this year they were involved in fighting against the Takale clan of Rovu village in which two people were murdered. A deterioration in law and order in the area led the Provincial Peace and Good Order Committee to declare the area a fighting zone under the Inter-Group Fighting Act. A special police operation – Operation Stretim Talasea – was mounted. This led, on 12 February, to the arrest of the applicants and a group of about 20 men from Rovu village. The Rovu villagers are also being detained at Lakiemata, apparently having been charged with similar offences. The court has received no bail applications from them.

THE APPLICANTS

3. The name, age and marital status of each applicant are shown in the following table.

No	Name	Age	Marital Status	
1.		Henry Mane	25	Single	
2.		Cosmas Gorea	16	Single	
3.		Augustine Vava	23	Married, 2 children	
4.		Philip Hare	24	Married, no children	
5.		Kevin Reu	35	Married, 5 children	
6.		Henry Raka	20	Single	
7.		Joe Uma	20	Single	
8.		Sebastian Gorea	30	Married, 4 children	
9.		Joe Nuli	20	Single	
10.		Alex Meta	20	Married, no children	
11.		Charles Pinda	22	Married, no children	
12.		Ben Kiu	25	Married, no children	
13.		Mathias Pinda	23	Married, 2 children	
14.		Ben Ramuka	25	Single	
15.		Gabriel Madaro	24	Married, 3 children	
16.		Darius Raka	18	Married, 1 child	
17.		Elijah Gambu	19	Single	
18.		Emil Nuli	21	Single	
19.		Tony Maile	22	Married, no children	
20.		Wilfred Dau	36	Married, 3 children	
21.		Stanley Mara	31	Married, 1 child	
22.		Dickson Valuka	30	Single	
23.		Hubert Kapai	30	Married, 1 child	
24.		David Dende 	35	Married, 3 children	
25.		Roland Vuho	32	Married, 3 children	
26.		Moses Gorea	23	Single	
27.		Pinda Box	38	Married, 4 children	
28.		John Reu	30	Married, 3 children	
29.		Sapren Meta	19	Single	
30.		Joe Kiu	44	Married, 7 children	
31.		Steven Bulo	21	Single	
32.		Albert Dau	16	Single	
33.		David Uma	16	Single	
34.		Manuel Giru	26	Single	
35.		Mathias Reu	15	Single	
36.		Mathias Gorea	15	Single	
37.		Vincent Meta	23	Single	

4. Applicant No 23, Hubert Kapai, has already been released from custody, so his application has been withdrawn. None of the applicants are formally employed. They are all either self-employed subsistence farmers or students. The juveniles (those aged less than 18 years) are:

•	No 2 – Cosmas Gorea, who is attending Moramora Technical School, Hoskins;
•	No 32 – Albert Dau, not attending school;
•	No 33 – David Uma, not attending school;
•	No 35 – Mathias Reu, attending Dagi Primary School;
•	No 36 – Mathias Gorea, attending Kimbe Secondary School.

GROUNDS ON WHICH BAIL IS SOUGHT

5. The applicants say that they have not been given fair treatment. The lead applicant, Henry Mane, says that the troubles began on 4 January when the Rovu people shot dead a Dami man, Godfrey Meta, following an allegation that some Dami people had stolen cash crops from gardens at Rovu. Another death occurred on 4 February, this time an East New Britain man was the victim. Police mobile squads from Port Moresby and Rabaul entered the area on 12 February and requested that the Dami people surrender their weapons. A number of home made guns were handed in as a result. Despite that, he says, the police assaulted and gun-butted a number of the applicants and forced them to make false confessions about possessing firearms. The police burned down 15 houses in the operation, he claims. The applicants were brought to Kimbe from their village on 12 February and detained at Kimbe police lock-up, in very poor and overcrowded conditions, for two weeks, before being transferred to Lakiemata.

6. Lakiemata is also overcrowded and there are food shortages at the jail, causing unrest amongst the detainees. It is difficult for them to sleep at night. Toilet facilities are limited to two pots and the conditions are unhygienic.

7. The two villages are now at peace. They need to return to the village to help their families rebuild the houses destroyed by the police, Mr Mane said.

8. Applicant Nos 5 and 25, Kevin Reu and Ronald Vucho, made oral statements in court, supporting Mr Mane's contentions, especially about the poor conditions of detention. Mr Vucho spoke about the limited number of cooking utensils and plates and blankets. They have to sleep on the concrete floor, which people are walking on throughout the day. He feels that many of them were arrested for no good reason. Some, such as himself, were granted bail in relation to other matters by the National Court and they were complying with their bail conditions but the police arrested them anyway. Many of the applicants have no idea how their families are coping, financially and emotionally. They want to go back to the village and fix up their houses, allegedly burned down by the police.

9. Mr Beli, for the applicants, submitted that some of them were physically or mentally infirm. Number 6, Henry Raka Jnr, was said to be suffering from a heart problem. His father, Henry Raka Snr, gave sworn evidence about that but it was vague and inconclusive. No 26, Moses Gorea, and No 37, Vincent Meta, were said to be mentally unstable. But no evidence in support of that contention was tendered.

THE STATE'S POSITION

10. Mr Kupmain, for the State, strongly opposed bail. He presented a statement by Mr Robert Dau, on behalf of the Provincial Administrator and the Peace and Good Order Committee, that the situation in the fighting zone is now quiet but that the peace could easily be breached if there is a mass release of suspects. Snr Inspector Thomas Reu, the Kimbe Police Station Commander, made a similar statement, opposing bail. He said that a total of 105 people had been arrested during the special police operation. The operation had to be wound down on 7 March due to funding problems. The situation in the fighting zone is still tense. There are five murder suspects on the run and the villagers have not been co-operative. There is a high risk of further trouble if the applicants are released on bail. He says that most of them are wanted in relation to serious offences such as robbery, murder, rape and arson. Some are already on the bench warrant list.

11. The State's formal objection to bail was based on Section 9(1)(c)(i), (ii) and (iii) of the Bail Act: the alleged acts constituting the offences that the applicants have been charged with consist of serious assaults, threats of violence and possession of firearms.
 
THE LAW ON BAIL

12. The Constitution, Section 42(6) (liberty of the person) 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 interests of justice otherwise require.

13. The Constitution therefore creates a right to bail – unless the interests of justice require otherwise – in the case of a remandee charged with any offence other than wilful murder or treason. If a remandee is charged with wilful murder or treason, he or she can still be granted bail at the discretion of the Judge hearing the application. However, in those cases the presumption in favour of granting bail does not apply and it is more difficult to obtain bail (Fred Keating v The State [1983] PNGLR 133).

14. The Bail Act Chapter No 340 provides for bail to be granted more readily and gives effect to Section 42(6) of the Constitution. The relevant provisions for purposes of the current applications are Sections 4, 6, 9, 16 and 18.

15. Section 4 (only National Court or Supreme Court may grant bail in certain cases) provides that only the National Court or the Supreme Court can grant bail if a person is charged with one or more of the following offences:

(a)	wilful murder, murder or an offence punishable by death; or

(b)	abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or break and enter a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence.

16. Section 6 (application for bail may be made at any time) provides that a bail application can be made at any time after a person has been arrested or detained or at any stage of a case.

17. Section 9(1) (bail not to be refused except on certain grounds) is very important. It lists ten circumstances in which bail can be refused. If none of them exist, bail must be granted. If one or more of them exist, the court hearing the application can still grant bail at its discretion (Fred Keating v The State [1983] PNGLR 133; Bernard Juale v The State (1999) N1887).

18. Section 9(1) states:
 
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:—

(a)	that the person in custody is unlikely to appear at his trial if granted bail; or

(b)	that the offence with which the person has been charged was committed whilst the person was on bail; or

(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; or

(iii)	having or possessing a firearm, imitation firearm, other offensive weapon or explosive; or

(d)	that the person is likely to commit an indictable offence if he is not in custody; or

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

(f)	that the person is likely to interfere with witnesses or the person who instituted the proceedings; or

(g)	that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property; or

(h)	that there are, in progress or pending, extradition proceedings made under the Extradition Act against the person in custody; or

(i)	that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody; or

(j)	that the alleged offence is one of breach of parole. [Emphasis added.]

19. If the State or any other person with a legitimate interest in a bail application opposes bail, they bear the onus of satisfying the court that one or more of the situations in Section 9(1) applies (Re Herman Kagl Diawo [1980] PNGLR 148).

20. Section 16 (reasons for refusing bail to be given and recorded) states that if bail is refused the bail authority (ie the court or person determining the application) must give its reasons for refusing bail. The Constitution, Section 42(7) is in similar terms.

21. Section 18 (bail may be granted subject to conditions) allows the bail authority to impose conditions of bail.

Applications where discretion is to be exercised

22. The Bail Act does not say what matters the court should take into account if it finds that one or more of the circumstances in Section 9(1) exist and it becomes a matter of discretion whether to grant bail. So the court is entitled to take into account all the prevailing circumstances and to determine whether the interests of justice require that bail be granted.

23. Two considerations stand out as particularly relevant in the present case. First, the conditions of detention. This is important in view of the human rights provisions of the Constitution, which confer the following rights pertaining to the way in which remandees are to be treated:

•	not to be submitted to physical or mental torture (s 36(1));
•	no cruel or inhuman treatment (s 36(1));
•	no treatment inconsistent with respect for the inherent dignity of the human person (s 36(1));
•	the full protection of the law (s 37(1));
•	to be presumed innocent (s 37(4)(a));
•	to be treated with humanity and with respect for the inherent dignity of the human person (s 37(17));
•	to be segregated from convicted persons (s 37(18));
•	to be subject to separate treatment appropriate to their status as unconvicted persons (s 37(18));
•	juveniles to be separated from mature-age remandees (s 37(19)); and
•	juveniles to be accorded treatment appropriate to their age (s 37(19)).

24. If one or more of those rights is breached, this will work in favour of the granting of bail.

25. Secondly, the length of time in custody. This is important in view of the human rights provisions of the Constitution, which confer the following rights on anyone arrested, detained or charged, particularly remandees, giving effect to the principle that 'justice delayed is justice denied':

•	to be informed promptly of the reasons for being arrested, detained and/or charged (s 42(2)(a));

•	to be permitted, upon being arrested or detained, to communicate without delay with a family member or friend and a lawyer of his or her choice (s 42(2)(b));

•	to be informed of his or her constitutional rights immediately on being arrested (s 42(2)(c));

•	to be brought before a court or judicial officer without delay after being arrested or detained (s 42(3));

•	to be informed promptly, once charged, in a language he or she understands, and in detail, of the nature of the offence (s 37(4)(b));

•	to have adequate time and facilities, once charged, for the preparation of his or her defence (s 37(4)(c));

•	for the Chief Justice to make a detailed report on the case to the Minister for Justice, if the trial is not commenced within four months after the date of committal (s 37(14));

•	to complain to a Judge that his or her detention is unlawful or unreasonable, particularly having regard to the length of the time on remand pending trial (s 42(5)); and

•	most importantly, to be afforded a fair hearing within a reasonable time by an independent and impartial court (s 37(3)).

26. If one or more of those rights is breached, this will work in favour of granting the bail. It is not a matter of the court simply being satisfied that there has been a breach of human rights and then concluding that that person should be granted bail. These are all relevant considerations to be weighed in the balance in the exercise of discretion. Competing considerations, especially the existence, number and strength of the circumstances set out in Section 9(1), have to be weighed against the factors favouring the grant of bail. However, the worse the conditions of detention and the longer the period in custody the more likely it is that bail will be granted.

THE PRESENT CASE

27. None of the applicants have been charged with wilful murder or treason, so the constitutional presumption in favour of granting bail applies. It is up to the State, which is opposing bail, to satisfy the court as to one or more of the matters in Section 9(1) of the Bail Act. The State relies on Section 9(1)(c)(i), (ii) and (iii).

28. I am not satisfied as to Section 9(1)(c)(i), as there is no evidence that any of the applicants have been charged with a serious assault. However, I am satisfied that both Section 9(1)(c) (ii) and (iii) apply: the applicants are charged with threats of violence and possession of firearms. This means that the court has a discretion to grant or refuse bail.

29. Factors favouring the granting of bail are:

•	Some applicants are juveniles, and some are attending school, and such persons require special treatment in the justice system.

•	The applicants have been detained in overcrowded and unhygienic conditions, both at the Kimbe police lock-up and Lakiemata Jail. I am aware of the conditions at both of those correctional institutions. They are not good but they are much better than they have been in the past because of orders I have made since 2005 for enforcement of the human rights provisions of the Constitution. Having said that, no clear evidence of human rights breaches was put before the court in this case.

30. Factors favouring refusal of bail are that:

•	The applicants have been detained following the declaration of the area in which they live as a fighting zone and they were arrested as part of a police operation, which has had the effect of quelling fighting in the area.

•	There is no clear evidence that peace is prevailing in the fighting zone. No person came forward to give independent evidence in support of the applicants.

•	To allow them out on bail en masse may tend to re-inflame the situation which led to their arrest.

•	There was also no clear evidence that any of the applicants is suffering from any mental or physical infirmity which would render it inhumane for them to be further detained in custody.

•	They have been detained for a period of about one month, which is not unreasonable in all the circumstances.

31. There are more factors working against the granting of bail than for it, so I have concluded that, at this stage, the interests of justice require that bail be refused for all but the juvenile applicants. Juveniles must always be given special treatment by the justice system, so I will grant bail to the five applicants who fall within that category, on the following conditions:

1	Cash bail of K200.00.
2	Guarantors to pay K200.00 each if the applicant breaks any of the bail conditions.
3	Regular reporting.
4	Regular attendance at callovers.
5	Place of residence restricted.
6	Restrictions on movement.
7	Attachment to a church.
8	Non-interference with State witnesses.
9	No alcohol or drugs.
10	Keeping peace and good behaviour.

DIRECTIONS

32. Though bail is refused for most applicants, the special nature of the case requires that directions be given to ensure that their constitutional rights are enforced. Mr Beli expressed concern about the spectre of delays in the District Court (where the offences with which they have been charged with would normally be prosecuted). He said that the applicants are worried about spending a long time in custody waiting for their case to be heard. I want to ensure that that does not happen. So I make the following directions.

33. First, I direct the Public Solicitor, under Section 177(2)(b) of the Constitution, to provide legal aid, advice and assistance to the applicants in relation to all matters arising from their arrest, charge and detention in custody, including representing them in the District Court or the National Court when the matters are tried.

34. Secondly, I direct the Public Prosecutor, under Schedule 1.19(a) of the Constitution, to control the exercise and performance of the prosecution function of the State by providing legal representation for the State and liaising with Police Prosecutions for the purpose of prosecuting the charges against the applicants if they are prosecuted in the District Court.

35. Thirdly, I direct the Public Solicitor and the Public Prosecutor and the Officer-in-Charge of Police Prosecutions for West New Britain Province to meet and consider whether an application should be made to the National Court for leave to prosecute the charges against the applicants in the National Court.

36. Fourthly, I direct the Public Solicitor and the Public Prosecutor and the Officer-in-Charge of Police Prosecutions for West New Britain Province to appear before the National Court on or before 14 April 2009 to notify the Court of the progress of the prosecutions in the District Court or of any application to have the matters prosecuted in the National Court.

ORDERS

(1)	Bail is refused for all applicants – other than No 2, Cosmas Gorea; No 23, Hubert Kapai; No 32, Albert Dau; No 33, David Uma; No 35, Mathias Reu; and No 36, Mathias Gorea – on the grounds that:

(a)	both Section 9(1)(c) (ii) and (iii) of the Bail Act apply, in that the applicants are charged with threats of violence and possession of firearms; and

(b)	the interests of justice require that bail be refused.

(2)	The bail application of Hubert Kapai stands withdrawn.

(3)	Bail is granted to No 2, Cosmas Gorea; No 23, Hubert Kapai; No 32, Albert Dau; No 33, David Uma; No 35, Mathias Reu; and No 36, Mathias Gorea, subject to standard bail conditions, including K200.00 cash bail each.

(4)	Directions are given to the Public Solicitor and the Public Prosecutor and the Officer-in-Charge of Police Prosecutions for West New Britain Province in the terms set out in this judgment.

Ruling accordingly.
_______________________________________
Public Solicitor: Lawyer for the applicants 
Public Prosecutor: Lawyer for the State