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Ninji v Independent State of Papua New Guinea [2009] PGNC 7; N3581 (6 January 2009)

N3581

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 500 OF 2008

IN THE MATTER OF THE BAIL ACT CHAPTER 340

AND:

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

BETWEEN:

SENT NINJI
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 - Insufficiency of evidence - No exceptional circumstances established - Killing of family member - Threat of interference with State witnesses - No alternative residence proposed - 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:

Paul Guant -v- The State (2009) N3576

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 Tip Ninji on 4th May 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 November 2008 and filed on 12 November 2008, it is alleged that at about 6 O’clock on the afternoon of Sunday 4th May 2008, the Applicant had an argument with the deceased, one Tip Ninji at Kindeng village in Anglimb District of this province. The deceased is his brother. The argument was over some false rumours made by his wife and wives of his other brothers. A fight ensured between the two and the deceased armed himself with a bush knife and attacked the Applicant. The Applicant also armed himself with an axe and attacked the deceased.

3. By standers intervened and stopped the fight, but when the Applicant saw the deceased drop his guard, took the opportunity and struck him with the axe on his head, killing him instantly. The Applicant surrendered to the police the next day and was subsequently charged with wilful murder of the deceased on 12th May 2008 and detained at Baisu Corrective Institute.

GROUNDS FOR APPLICATION

4. The Applicant vigorously denies the offence and says that although he killed the deceased, he did it in self defence because it was the deceased who attacked him. He also says that the living condition at Baisu Corrective Institute is not conducive to live in as it is over crowded and has shortage of water supply, 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.

5. The State did not file any Affidavits in reply nor did it seriously oppose the application.

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

1. Thomas Paraka; and

2. Councillor James Poiya.

7. By his Affidavit sworn on 10 November 2008 and filed on 11 November 2008, Thomas Paraka deposes that he is from Kindeng village in the Anglimb District of this province and a paramount chief of the Onbe tribe. He is a former member of the Western Highlands Provincial Government and held the portfolio of Minister for Works and Transport. He is a current member of the National Lands Board and also a member of the National Alliance Party.

8. He is the Applicant’s maternal uncle. He says that the Applicant is a quite person, who does not smoke or consume alcohol and has never got into trouble before. 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. Councillor James Poiya deposes in his Affidavit sworn on 10 November 2008 and filed on 11 November 2008 that he is from Papen Ward No 2 in Kindeng village in Anglimb District of this province. He has been a councillor for the last 10 years and says that the Applicant comes from the same tribe as him. He lives close by to the Applicant and his family and 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. 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 also 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.

ISSUES & PARTIES’ SUBMISSIONS

10. Except for the issue of prolong delay to be tried by the National Court and issue of threat to the Applicant’s security and safety, I find this case no different to the one which I handed down the decision a little while ago. That is the case of Paul Guant -v- The State (2009) N3576. This is because Mr Kumo of counsel for the Applicant’s main submission centers around the issue of over crowdedness at the remand cell of Baisu Corrective Institute. More particularly, he submits 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.

11. The other issue which I consider relevant here which neither counsel addressed is, the threat of interference by the Applicant on the witnesses of the Respondent. In this respect, I note Mr Waine of counsel for the Respondent says that the alleged killing occurred within the family and it is unlikely that the Applicant will abscond bail if given one.

12. That maybe so, but what I am more concern about is the threat of interference on the witnesses of the Respondent, especially if the Applicant is to be released and returned to his village and live with other members of the family who will be witnesses against him during the trial. I will return to this issue in a moment.

13. The other issue which again both counsel did not turn their mind to is the suitability of the proposed guarantors but I will address it a little bit later on.

REASONS FOR DECISION

14. But first, as I said in Paul Guant’s case (supra) at p 7 which I adopt here once again:

"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.

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.

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".

15. Bearing in mind the seriousness of the offence of wilful murder and turning to the main issue before me, can it be said that over crowdedness and shortage of water supply at Baisu Corrective Institute is an exceptional ground for bail? In Paul Guant’s case (supra), I held that it alone is not an exceptional circumstance. This is what I said at p 12 of the judgment:

"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".

16. Further, I held in that case that the Applicant’s statement in paragraphs 7 & 8 of his Affidavit where he stated 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 gaol 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" were general assertions not supported by independent evidence.

17. In respect of assertions made by the Applicant in that case, this is what I observed again at p 12 of the judgment:

"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".

18. In the case at hand, as I said earlier, there is not much difference in terms of the grounds and arguments between Paul Guant’s case (supra) and the case at hand, hence there is really nothing much to persuade me to differ from my decision in Paul Guant’s case (supra) except for the figure of 45 being cited by the Applicant to alert me to the number of remandees at the moment. Nonetheless, I am afraid I have to reach the same conclusion here and that is, I am not satisfied that the Applicant has established by appropriate evidence that there is over crowdedness and shortage of water supply at the remand cell at Baisu Corrective Institute.

19. I now return to the issue which I raised earlier and that is, the threat to witnesses of the Respondent by the Applicant. I raised this issue because even if I were to grant bail, in his Affidavit evidence, the Applicant did not propose any alternative residence. The Applicant and the deceased are brothers. Thus, the killing occurred within the family and I am sure family members witnessed the killing that fateful day.

20. I consider that where the Applicant and the victim or deceased hail from a same family or village, it is important for the Applicant to propose an alternative residence to the Court so that the Court is given options when it is seriously considering bail. As the Applicant did not do so in this case, I am left to conclude that if I were to grant bail, he will return to his village and house, thus increasing the chances of interfering or influencing the witnesses for the State, through his daily contact and interaction with them.

21. The final issue is whether or not the proposed guarantors are proper and suitable candidates. Again, in Paul Guant’s case (supra), I held that guarantors must not be related by blood or marriage to Applicants for bail and the reason is this, it is to maintain neutrality of the guarantors. There, I said at p 14 of the judgment:

"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.

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.

I made brief observations in relation to this very issue in the case of Paul Pawa -v- The State: CR No 491 of 2008 (Unnumbered & Unreported Judgment of 06th January 2009), a decision on a bail application which I hand 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".

22. For this reason, I held in that case that, the proposed guarantors were not proper and suitable persons to act as guarantors for the Applicant and I declined the application for bail. In the case at hand, I cannot see any reason stopping me from following that decision here.

23. One of the proposed guarantors is a maternal uncle of the Applicant. He is Thomas Paraka and whilst he is a person of high standing in the village as well as the province given his important credentials, I am not prepared to allow that to over ride my decision at the expense of guarantors’ neutrality. For this reason, I reject Thomas Paraka.

24. This leaves only the other proposed guarantor, Councillor James Poiya. He is no doubt a neutral person and also a person of high standing. He is a suitable candidate for a guarantor of the Applicant but the difficulty I am now faced with is that, he is the only one left after I have rejected Thomas Paraka. If only the Applicant had proposed more than two guarantors to enable the Court to select, this problem would not have arisen.

25. I consider that Applicants applying for bail should propose more than two guarantors so that if the Court rejects one of them, at least there are others to turn to. As there are none here, I am not prepared to appoint only one guarantor for the Applicant, especially where the Applicant has been charged with a serious offence and the Court is duty bound to properly and effectively monitor and supervise him during the period of bail if given bail.

As there is no other proper and suitable alternative person other than Councillor James Poiya, to act as guarantor of the Applicant, this gives me no choice but to decline the entire application for bail.

CONCLUSION

26. 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