N4579

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No. 421 of 201

BETWEEN:

NICHOLAS DANIEL BAKI OBARA

AND

THE STATE

Waigani: Kangwia, AJ
2012: 9th & 13th January

BAIL - application for bail – grounds of – medical condition, family hardship and denial of alleged offences – conditions of refusing bail under s 9 of Criminal Code present – exceptional circumstances not demonstrated by applicant – bail refused – s 42 Constitution, s.9 Bail Act

Cases Cited: 

Bernard Juale v The State [1999] PNGLR 501
Michael Aia v The State (2001) N2124 
The State v Win Siminzi & Wanis Kanol; MP No. 186 of 2010 (unnumbered & unreported Judgment of Makail J dated 23.06.10)

Counsel

C. Jaminan, for the Applicant
T. Aihi, for the State

13 January, 2012

1. KANGWIA AJ: This is an Application for bail by Nicholas Daniel Baki Obara through an amended Notice of Motion filed on 19 December 2011.The grounds raised to support the application seem to be these:

(a)	His Medical condition requires his release on bail.
(b)	Family facing hard ships.
(c)	Denial of the alleged offences.
(d)	Longtime in detention awaiting trial. (one & half years)

2. The Applicant relied on his own affidavit which contained the following annexure:

(a)	Charge Sheet
(b)	Information charging him with armed robbery
(c)	Information
(d)	 Statement of facts
(e)	A 7 page affidavit of Nicholas Daniel Obara Baki dated 10.06.10 outlining what his part was on the 2nd and 3rd of June 2010 which were the dates of the alleged offence.
(f)	A letter from Jaminan Lawyers to the jail Commander dated 9th August 2011 requesting Medical check and treatment.

3. The Applicant was charged as an accomplice with one Count of willful Murder under section 299 and one charge of Armed Robbery under Section 386 both under the Criminal Code. He is in custody awaiting a trial date. He was alleged to have played a part in the commission of the offences.

4. In support of his application Mr.Jaminan submitted that the Applicant is a first time offender and had denied the commission of the offences. He was forced to sign a prepared statement. He was under duress to admit to the commission of the offences.
He is suffering physical injury from police beatings. The CIS have not taken him to the hospital for medical attention causing his lawyers to write to the CIS. Although he was taken to the hospital there was no medical report.

5. A trial date may be given by the end of 2012. He was not involved in the commission of the offence nor did he use any firearm. He undertakes to comply with any bail conditions set. His wife and children are facing hardship with his absence while in detention.

6. It was further submitted that bail is discretionary. The considerations under section 9 of the Bail Act are the criteria to refuse but the Court was not bound by the technical rules of evidence. Long time in detention is a relevant consideration. The applicant is innocent until proven guilty and therefore bail should be granted.

7. The state objected on the basis that considerations under Section 9 were present. They include:

(a)	Section 9(1) (c) (i) which relate to serious assault involving a death.
(b)	Section 9 (1) (c) (iii) – possession of firearms to commit the offences.
(c)	Section 9 (g) involving K700, 000: 00 which has not been recovered. 
(d)	There was no medical report disclosing his medical condition.
(e)	The well being and education of children and family welfare are natural occurrences when a person is charged with very serious offences.

8. The Law governing bail under section 42 (6) of the Constitution is that a person charged with any offence (apart from Treason or willful Murder) is entitled to bail at all times. This primary right is reinforced under section 4 of the Bail Act where it accords a person charged with treason or willful murder, the right to apply for bail.

9. In the present case the applicant would be more entitled to bail for the offence of Armed Robbery. The same entitlement is not available to him for the charge of willful murder.

10. In both cases though an applicant must satisfy the Court that none of the consideration under Section 9 of the Bail Act is present. If any of the considerations are present, bail would naturally be refused. That does not mean to say the Court is starved of its discretion to grant bail. Where the justice of the case deems it appropriate a Court in the exercise of its discretion can grant bail.

11. Bail is not determined only through the confined considerations under section 9 of the Bail Act. It has been stated and applied in numerous cases that exceptional circumstances may also attract the grant of bail. See for example in Bernard Juale v The State [1999] PNGLR 501 Kirriwom J intimated that:

 "I think there will be, as is always the case, exceptional circumstance such that, as those allowed by Andrew J. in Fred Keating v The State case that would warrant bail even in willful Murder cases".

12. In Michael Aia v The State (2001) N2124 Davani J said:
 
"The Applicant must demonstrate that an exceptional circumstance exists to warrant bail".

13. The applicant therefore must demonstrate with reasons or give an explanation as to why detention was not justified. The onus of justifying detention rests with the State.

14. In the present case the applicant is not qualified to bail as the considerations under section 9 (1)( c) and (g) are present. That is the alleged acts constituting the offences consist of serious assaults, a threat of violence to another person and possessing or using firearms to commit the offences. It also involves property of substantial value that has not been recovered.

15. If he cannot secure bail through the confined strictures of section 9 considerations under the Bail Act is he precluded completely from seeking bail? The answer is no. The applicant still has the option open to him to show the Court than an exceptional circumstance exists that would attract the grant of bail. The presence of an exceptional circumstance would invoke the discretion of the Court to grant bail despite the presence of section 9 considerations.

16. The first issue raised by the applicant as a basis to obtain bail was of his poor medical condition. Medical condition is not a consideration under section 9 of the Bail Act. However, the onus is on the applicant to satisfy the Court that his medical condition is an exceptional circumstance warranting bail despite the presence of section 9 considerations.

17. The Applicant has failed to do that. There is no medical report to show the condition or state what condition the applicant is in. It is not sufficient to depose a medical condition without any supporting evidence.

18. He has not shown that he has a serious deteriorating health condition that would satisfactorily ground an exceptional circumstance warranting bail despite the presence of the considerations under section 9 of the Bail Act. In saying that, I adopt what his honor Makail J stated in The State v Win Siminzi & Wanis Kanol; MP No. 186 of 2010 (unnumbered & unreported Judgment of 23 June 2010.

"Where an applicant raises deteriorating ill-health condition on a charge of willful murder, is it an exceptional circumstance? In my view the answer is yes. I for one in the past cases have held that to be the case including cases where an applicant is charged with Willful Murder. But there is a qualification and that is an applicant must establish by appropriate evidence his or her serious ill health before the court may grant bail. Evidence of medical report from a reputable medical practitioner either in public health or private practice is relevant and will go a long way to establishing a meritorious and successful application".

19. The present case is not one that falls into such category simply because the applicant has failed to satisfy the Court that his health conditions meet the exceptional circumstance requirement to attract bail.

20. The second ground raised was of family welfare issues. The applicant is awaiting trial for two very serious offences, one of which carries the death penalty. Hardships faced by family members are natural consequences that follow for families of persons charged with such serious offences. There must be something more than a mere family hardship to amount to an exceptional circumstance. Hardships, school fees, business failures per se are not exceptional circumstances that would attract bail in the face of very serious charges laid against an applicant. The applicant has failed to establish an exceptional circumstance under the heading of family welfare.

21. The third issue raised was his denial of the alleged offence and the admissions obtained under duress as warranting the grant of bail. These are speculative in nature in the face of a signed affidavit of the applicant deposing to matters connected to the alleged commission of the offences. The applicant is not barred from exercising his rights to defend himself at trial through a voir dire or by offering evidence. It would be preemptive of a trial to consider an alleged denial or an alleged admission through duress as a basis to grant bail. This is not a consideration under section 9 of the Bail Act nor is it an exceptional circumstance that would warrant the grant of bail.

22. The final issue raised was of the long period of time in detention awaiting trial. The applicant has not shown why this should be an exceptional circumstance. He has not shown that it was adverse to his defense. There is no evidence to show that even though he has taken steps to expedite the trial, the state has unnecessarily failed to bring this matter to trial. The applicant does not seem to have exercised his rights under section 552 of the Criminal Code Act for the right to be tried either. This ground does not come within the criteria that would be described as an exceptional circumstance.

23. Finally, the applicant is not entitled to bail. Firstly, the considerations under Section 9 of the Act are present. That is, the offence the applicant was charged with consists of a serious assault, the use of firearms and the amount involved has not been recovered. Secondly, the applicant has not raised a ground relevant or meritorious such as to constitute an exceptional circumstance to warrant the grant of bail. Bail is therefore refused.

__________________________________________________
Jaminan & Associates Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent