N4343

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

MP 39 OF 2011

KOLLEN KUNAI
Applicant

v

STATE
Respondent

Goroka: Ipang AJ
2011: July 13 & 19

CRIMINAL LAW – Practice and procedure –Bail application – S.9 (1) considerations –offence involve serious assault – accused's own safety & protection consideration.

CRIMINAL LAW – Two (2) guarantors live in Goroka town – the applicant will live in the village – monitoring of accused's compliance with bail conditions possess problem. 

Cases cited 

Re Fred Keating [1983] PNGLR 133 

Counsel

Mr. R. Kasito, Applicant
Ms. V. Mauta, Respondent

DECISION

19 July, 2011

1.	IPANG AJ: The applicant Kollen Kunai filed his bail application pursuant to Section 42 (6) of the Constitution and sections 4 & 6 of the Bail Act, Chapter 340. In support of his bail application, the applicant relies on his affidavit sworn on the 25th of February, 2010 and filed on the 28th of February, 2010, is supplementary affidavit sworn and filed on the 01st of March, 2011, the affidavit of Gurantor Sekeri Amex sworn on the 25th February, 2011 and filed on the 28th February, 2011, the affidavit of Gurantor Aturi Soso sworn on the 25th February, 2011 and filed on the 28th February, 2011 and the affidavit of Steven Holotapi sworn and filed on the 18th of April, 2011. 

2.	 This is a contested bail application as Ms. V. Mauta of Counsel for the State has filed in Notice of Objection to Bail on the 11th of April, 2011. The grounds of objection as contained in the Notice are, 

i. That the applicant will abscond bail (S.9 (1) (a) of the Bail Act, Chapter No: 340;

ii. The applicant has been charged with an offence which involved serious assault (S.9 (1) (c) (i) of the Bail Act, Chapter 340, and; 

iii. That it is for the applicant's own safety and protection that he remains in custody (S.9 (1) (e) of the Bail Act Chapter 340). 

3.	I will discuss the arguments presented by the State Counsel under each of the grounds after discussing the applicant's application.

CHARGE

4.	 The applicant has been charged that on the 9th of May, 2010 at Kotuni Village, Goroka he did murder another person namely Jonah Papua, contrary to Section 300 of the Criminal Code Act.

BRIEF FACTS

5.	The State alleged that on the 9th of May, 2010, the accused was at Kotuni Village Goroka, Eastern Highlands Province. At around 2:00pm on that date, mediation was held between a boy Nason Papua and a girl Jacklyn Steve. This was based on a story that Jacklyn was made pregnant by Nason. 

6.	 The deceased in this matter is the elder brother of Nason Papua and the accused is from Jacklyn Steve's side. There were relatives of both parties present during mediation. Both Nason Papua and Jacklyn Steve were also present at this mediation.

7.	When the mediation was about to start Thomas Soso from Jacklyn's side ran into the mediation arena. He started kicking and punching Nason Papua who then retaliated. The others who came to witness the mediation saw them fighting and joined the fight. A big fight broke out. The accused was alleged to have taken part in the fight.

8.	State alleged that during the fight the accused with some other people chased the deceased and his group. They threw stones at them. State alleged that the accused was seen throwing a stone which hit deceased's head and he fell on the ground. He was taken to the hospital but died on the way.

9.	 Mr. R. Kasito of Counsel for the applicant relied on the applicant's affidavit sworn on the 25th February, 2011 and filed on the 28th February, 2011. In his affidavit, the applicant deposed that he is from Kotuni Village, Goroka, Eastern Highlands Province. He seek bail for the following reasons;

i. The charge is serious and he needs to be on bail to give him opportunity to prepare well and defend his case;

ii. To look after or care for his old age parents;

iii. For his family's security and well – being;

iv. He needs to go back to work as he is the only bread winner for his family and the entire family depends on him.

10.	In his supplementary affidavit sworn and filed on the 01st of March, 2011 the applicant expounded on the grounds he relied in his earlier affidavit by stating that;

i. That he was employed as a shop assistant, generating income for his family at the time of the arrest.

ii. He was the only bread winner for his family as his parents are in their late 70s and too old to work and sustain lives;

iii. That his wife was facing difficulties when giving birth to their second child while the applicant was in Bihute CIS.

iv. The longer he stays in CIS custody the higher chance of his employment been terminated which would then have consequences on his family as they depended on his income.

11.	In his affidavit sworn on the 25th February, 2011 and filed on the 28th February, 2011 Sekeni Amex as the Guarantor says;

i. He comes from Kotuni Village and personally knows the applicant. He said he is aged 47 years, married with 4 children and a respected community leader in Kotuni;

ii. The applicant is a Shop Assistant with Seigu Second Hand Clothes shop in Seigu, Goroka, and EHP. He is a hard- worker, a committed member of Seventh Day Adventist (SDA) faith. Sekeni says the applicant is a good law abiding citizen with standing in the community. He is respected for his leadership roles in the community.

12.	Aturi Soso in his affidavit sworn on the 25th February, 2011 and filed on the 28th February, 2011 deposed in support of applicant's bid for bail that; 

i. He (Soso) aged 48 years old is married with 4 children. He is employed as a Security Officer with G4S Security Services in Goroka, EHP.

ii. He pledged a sum of K400.00 as surety for bail; and lender took to ensure that the applicant strictly complies with his bail conditions until the case against him is determined.

13.	The supporting affidavit by Steven Holotapi sworn and filed on the 18th April, 2011 is basically to counter argue the grounds raised for objecting bail. Deponent Steven Holotapi says he is 42 years old, married with 4 children and he is from Kotuni Village.

14.	He says in paragraph 3 of his affidavit that Kotuni Village is not very far from Goroka. He says it is only 2 hours, 30 minutes drive from Goroka. In paragraph 4 he said there will be no problems with two (2) guarantors living in Goroka as he says the guarantors can still monitor them during bail period. He also says there is no tension between the relatives of the deceased and the applicant. He further stated that there is no likelihood of further trouble as the deceased and the applicant are cousins. 

15.	The State in objecting to the applicant bid for bail relied on the affidavit of David Matana sworn on the 17th of March, 2011. State also relied on the affidavit of Papua Amizo sworn on the 17th March, 2011 and filed on the 11th of April, 2011.

16.	In paragraphs 2 & 3 of his affidavit, David Matana deposed that he comes from Kotuni Village, Gororka, EHP and he knows the applicant very well and he also knew the reason why the applicant was held in custody. In paragraphs 5 & 6, he said peace has not been restored following the alleged killing and the tension still exist between the deceased relatives and the applicant's relatives. He went on and said they have been trying to contain the situation, but it has not been easy. He said the applicant's presence in the village is likely to ignite further trouble. In paragraph 7, Matana said following the killing, the applicant has been on the run till church and community leaders brought him to the police. Finally, Matana said the two guarantors do not reside at Kotuni Village, as they both live within Goroka's Genoka Settlement and Asaroyufa respectively and will not be able to properly monitor the applicant and his compliance with bail conditions.

17.	Papua Amizo also from Kotuni Village is the father of the deceased Jonah Papua. He said as the father of the deceased he feared for the applicant's safety if the applicant is released on bail. In paragraph 4 of his affidavit sworn on the 17th March, 2011 and filed on the 11th April, 2011 he said even though he will not be in any way involved, there are other relatives of the late Jonah who are contemplating payback. In paragraph 5 & 6, he says peace has not yet been restored and the tension is still high. He says the applicant's presence in the village is likely to ignite further trouble.

18.	Ms. Mauta of Counsel for the State raised grounds of objections under Section 9 (1) (a) of the Bail Act, Chapter 340. Section 9 (1) (a) states that the person in custody is unlikely to appear for his trial if granted bail. Ms. Mauta claims that after the alleged offence was committed the accused was on the run until the church and community leaders brought him to the police. This was contrary to what was stated in the statement of facts which stated that the accused himself surrendered to the police. So this ground of objection under Section 9 (1) (a) of the Bail Act can be ruled out.

19.	The next ground of objection was under Section 9(1) (c) (i) of the Bail Act, which states the alleged offence consists of serious assault to be more specific it involved murder. The next ground that the State relies on to object the bail is Section 9 (1) (e) of the Bail Act, where it states it is for the applicant's own safety and protection that he be remanded in custody. State also relies on the affidavit of deceased's father Papua Amizo in pursuing this ground of objection. This ground of objection can not be taken lightly as there was no peace made nor even"Bel Kol" compensation was not paid by the accused people to the deceased relatives. To try to rationalize that accused and deceased are cousins and there will be no trouble is out of context or out of reality. This case is the result of cousins fighting and causing the alleged offence.

20.	In the applicant's affidavit sworn on the 25th February, 2011 and filed on the 28th February, 2011, the reasons such as, to look after or care for his old age parents, for his family's security & well –being and only bread- winner for his family can be categorized into one reason as they all mean one thing. On the 9th May, 2010, the applicant was arrested, charged and remanded in custody till this bail application. It is one (1) year 2 months or so that the applicant has been in custody. Whether the applicant is still in employment as a shop assistant is a matter not in the knowledge of the court. Whether his employment has been terminated since his long absence from work is also a matter not within the knowledge of court.

21.	The other grounds such as his wife facing difficulties giving birth to their second child, and to take care of old- age parents are matters which courts have emphasized as not appropriate grounds as should applicant think of these reasons he should not have committed the alleged offence. 

22.	The next ground of objection is regarding the two (2) guarantors. It is evident that Sekeni Amex and Aturi Soso do not physically reside at Kotuni Village where the applicant will reside if in the event bail is granted to him. The two (2) guarantors will undertake to see that the applicant when granted bail appears at a time and place set for his trial and complies with the conditions (if any) of his bail. I am in total doubt as to how the two (2) guarantors will effectively make sure that the applicant complies with his bail conditions when both are living within Goroka town and the applicant will be residing at Kotuni Village. It will be more like the two (2) guarantors will use mobile phones to monitor compliance of bail conditions by the applicant. This is not good enough when the alleged offence is a serious one. 

23.	In Re Fred Keating [1983] PNGLR 133 it was clearly stated that, the grant or refusal of bail under Section 9 of the Bail Act is discretionary in all cases. It also held that once, one or more of the considerations in Section 9 (1) are proved bail shall be refused unless the applicant shows cause why his detention in custody is not justified.

24.	In the given circumstances, though the applicant's right to bail is a constitutional right (Section 42(6) of the Constitution), it is also a discretionary matter for the Courts. In this bail application, I am not willing to exercise my discretion to grant the application for the accused to be admitted to bail. Bail application is refused. 

____________________________________
Paraka Lawyers: Lawyer for the Applicant 
Acting Public Prosecutor: Lawyer for the Respondent