N5358

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CRAPP No.147 of 2013

IN THE MATTER OF AN APPLICATION FOR BAIL

BETWEEN:
BOBBY SEKI, TIMOTHY SEKI & NEWMAN ALE
Applicant

AND:

THE STATE
Respondent

Mt. Hagen: David, J
2013: 20 September

CRIMINAL LAW – application for bail – applicants are juveniles aged 16, 15 and 9 years – applicants under voting age - applicants charged with wilful murder – exceptional circumstances must be shown – applicants to show cause why continued detention not justified – an exceptional circumstance must be considered in the light of the peculiar circumstances of a case – one applicant of very young age – very young age is an exceptional circumstance – all applicants initially detained with adult prisoners – applicant of very young age released to custody of parents sometime after arrest and detention – constitutional breaches constitute exceptional circumstances - exceptional circumstances shown by all applicants – application granted – Constitution, Sections 37 (18)(19) and 42 (6) - Bail Act, Sections 4, 6 and 9.

Cases cited:

Fred Keating v The State (1983) PNGLR 133
Re Kou Dua [1984] PNGLR 22
The State v Beko Job Paul (1986) PNGLR 97
Bernard Juale v the State (1999) N1887
Manu Kovi v The State (2005) SC789
Charlie Posanau & David Koyama v The State, SCAPP. Nos. 2 & 3 of 2009, Unreported & Unnumbered Judgment of the (Lenalia, David & Makail JJ) delivered at Waigani on 1 May 2009
Re Boram Correctional Institution; Bernard Uriap v The State (2009) N3822 

Counsel:

Robert Bellie, for the Applicants
David Kuvi, for the Respondent

RULING

1.	DAVID, J: This is a ruling on an application for bail made by the applicants, Bobby Seki, Timothy Seki and Newman Ale pursuant to Section 42 (6) of the Constitution and Sections 4 and 6 of the Bail Act. 

2.	The applicants rely on the following documents:

1.	Bail Application filed on 22nd May 2013;
2.	Affidavit in Support of Bobby Seki sworn and filed on 22nd May 2013;
3.	Affidavit in Support of Timothy Seki sworn and filed on 22nd May 2013;
4.	Affidavit in Support of Norman Ale sworn and filed on 22nd May 2013;
5.	Guarantor's Affidavit of Eric Koriken sworn and filed on 22nd May 2013;
6.	Guarantor's Affidavit of Ale Luin sworn and filed on 22nd May 2013.

3.	Of the three applicants, the respondent, The State only contests the applications of Bobby and Timothy. 

4.	The applicants are jointly charged with one count of wilfully murdering the late Kenneth Edward Kina at the Wakumare Bridge, Wabag on 30th March 2013 under Section 299 (1) of the Criminal Code. The charge is preferred in an Information laid by Detective Senior Constable Hosea Patiliu of the Wabag Police Station on 14th May 2013, copies of which are annexed to each applicant's affidavit as annexure "A". Copies of the Summary of Facts supporting the laying of the charge in the Information are annexed to each applicant's affidavit as annexure "B". 

5.	According to the Summary of Facts, the respondent alleges that on 30th March 2013, the applicants and the deceased namely, Kenneth Edward Kina had gone fishing together at the Lai River under the Wakumare Bridge. Whilst there, a fight broke out amongst them. The deceased was murdered and thrown into the fast flowing Lai River. The deceased's body was found further down the river floating in the vicinity of the Birip village and was taken to the Wabag General Hospital. The deceased's body was the subject of a post mortem examination conducted at the hospital which revealed that the deceased was murdered and thrown into the Lai River. 

6.	The applicants Bobby, Timothy and Newman Ale are aged 16 years, 15 years and 9 years respectively. They are all from Sakales village, Wabag in the Enga Province and until arrested and detained at the Wabag Police Station cell for the offence, they resided in their village.

7.	 Bobby and Timothy are brothers. The deceased is their first cousin as his mother is their aunty. The deceased was residing with them at Sakales under the care of their parents when the incident occurred.

8.	Newman is related to Bobby, Timothy and the deceased. 

9.	The applicants all deny the charge. Timothy and Newman both state that they were with the deceased fishing along the Lai River under the Wakumare Bridge. Timothy was positioned at the upper end of the bridge, Newman was positioned at the middle and the deceased was positioned further down. At around 5:30 pm they heard a big bang and noticed that a land slip had occurred where the deceased was positioned causing the deceased to fall into the river and was swept away by the fast flowing flooded river as they watched helplessly and in shock. Bobby states that he was not with Timothy, Newman and the deceased on this fateful day; in other words, he advances an alibi. The deceased's father who had separated from his wife, their aunty demanded compensation for the death of the deceased and had the applicants apprehended and detained by the police without any cause. 

10.	The applicants advance same grounds for bail to be granted and these are:

1.	they are juveniles and have been unnecessarily implicated;
2.	they have been detained together with adult prisoners at the Wabag Police Station cell for more than 2 weeks where influence of adult offenders is very high;
3.	since their apprehension and detention, police have unnecessarily interrogated each of them in the absence of a Juvenile Court Officer or a lawyer or their parents or guardians.

11.	The applicants were apprehended and detained at the Wabag Police Station cell on 8th April 2013. According to materials before me, Bobby and Timothy have remained in custody at the Police Station cell together with adult prisoners since 8th April 2013. Newman too was in custody with adult prisoners for about 2 ½ weeks before he was released to the custody and care of his parents pending the filing, moving and determination of his application for bail. 

12.	Each applicant proposes to pay cash bail of K500.00.

13.	The applicants all have nominated Eric Koriken and Ale Luin to be their guarantors.

14.	Eric Koriken states that he is aged 37 years and is a businessman. He has been living in Wabag since childhood and states that he is a respected member of the community there. He operates PMVs and a wholesale business at Wabag. He is the maternal uncle of Bobby and Timothy. Their mother is his biological sister. He has been made aware of the duties and responsibilities of a guarantor by the applicants' lawyer and undertakes to ensure that the applicants will meet their bail conditions should they be granted bail. He pledges K500.00 as surety.

15.	Ale Luin is aged 47 years and he is Newman's father. He is from Sakales village, Wabag and resides there. He states that he is a respected member of his community. He has been made aware of the duties and responsibilities of a guarantor by the applicants' lawyer and undertakes to ensure that the applicants will meet their bail conditions should they be granted bail. He pledges K500.00 as surety. 

16.	Mr. Bellie of counsel for the applicants submitted that since all the applicants are juveniles within the meaning of the Juvenile Courts Act 1991 (the Juvenile Courts Act), he urged the Court to exercise its wide discretion under the principles enunciated in Fred Keating v The State (1983) PNGLR 133 in their favour and grant each of them bail. 

17.	Mr. Kuvi for the Respondent submitted that the applicants, Bobby and Timothy have failed to show any exceptional circumstance why their continued detention in custody is not justified. He contended that being a juvenile per se is not an exceptional circumstance. He argued that in the absence of any exceptional circumstance shown by these applicants, there was no basis for the Court to exercise its discretion in their favour.

18.	It was further submitted by Mr. Kuvi that the proposed guarantors were unsuitable because they were both relatives. He referred me to the Supreme Court decision of Charlie Posanau & David Koyama v The State, SCAPP. Nos. 2 & 3 of 2009, Unreported & Unnumbered Judgment of the (Lenalia, David & Makail, JJ) delivered at Waigani on 1 May 2009 to support the proposition. There, the court said:

"We have noted that the proposed guarantors are all related to the two applicants. We are of the view that there may be some apprehension of bias and conflict of interest involved. The risk of absconding bail would be much higher as compared to a guarantor who was a neutral person: Malaki Kongo & Joe Akusi v The State (1996) N1544, Paul Guant v The State (2009) N3576." 

19.	The Bail Act is a complete code that deals with the grant or refusal of bail. In Fred Keating, the Supreme Court said:

"When considering the grant or refusal of bail in cases other than wilful murder or treason, the courts and other bail authorities are to be guided generally by s.9. But whilst the Bail Act is a complete code in dealing with the grant or refusal of bail, by s.3, in matters other than wilful murder or treason, the bail authority may still have to consider the question of the interest of justice. This may involve considerations other than the criteria for refusing bail as established in this section." 

20.	For applicants charged with wilful murder, bail is not available as of right. The onus is on an applicant to show by appropriate evidence why his continued detention in custody is not justified: see Fred Keating and Re Kou Dua [1984] PNGLR 22. Exceptional circumstances must be shown before bail can be granted and the question is always one of degree which must be considered in the light of the peculiar circumstances of a particular case: Bernard Juale v the State (1999) N1887; Re Boram Correctional Insitution; Bernard Uriap v The State (2009) N3822. 

21.	Section 9 (1) of the Bail Act sets out the criteria for a grant or refusal of bail by a bail authority. 

22.	It was also held in Fred Keating that in wilful murder cases, only circumstances set out in Section 9 (1) apply and no others, i.e. without reference to the interests of justice referred to Section 3 of the Bail Act. There, the Supreme Court said:

"In cases of wilful murder, only those considerations set out in s.9 (1) apply and no others because the 'interests of justice' in s.3 of this Act and because s.42 (6) of the Constitution does not apply to wilful murder and treason cases."

23.	It was also held in Fred Keating that the existence of any one or more of the circumstances under Section 9 of the Bail Act does not necessarily mean that bail must automatically or readily be refused. This is because a bail authority has the discretion and power to decide whether to grant or refuse bail.

24.	 The applicants are jointly charged with one count of the offence of wilful murder. Bail therefore is not available to them as of right. 

25.	The main issue for my consideration and determination with respect to Bobby and Timothy therefore is whether they have shown cause why their continued detention in custody is not justified? A related issue which applies to all the applicants is whether each of them has established any exceptional circumstance for the Court to exercise its discretion in favour of granting his application?

26.	On the question of the seriousness of the charge, it was held in The State v Beko Job Paul (1986) PNGLR 97 that the nature of an offence itself may have the effect of operating as a sufficient factor to refuse bail unless the continued detention of an applicant was not justified.

27.	From materials before me, I am satisfied that the offence for which the applicants are charged consists of a serious assault. The consideration under Section 9 (1)(c)(i) of the Bail Act is present. 

28.	Notwithstanding the presence in this case of the consideration under Section 9 (1)(c)(i) of the Bail Act or the seriousness of the charge, I again question whether Bobby and Timothy have shown cause why their continued detention in custody is not justified so as to exercise my discretion in their favour? In the case of Newman, has he shown cause why he should remain in the custody and care of his parents and not be placed in a juvenile remand centre or its equivalent at a correctional institution or a place approved by the Director of the Juvenile Courts Service for that purpose?

29.	As I have mentioned already, the applicants advance three grounds to demonstrate why their continued detention in custody is unjustified. These grounds raise, amongst others, the issue of whether being a juvenile per se is an exceptional circumstance? Alternatively, are there special considerations for juvenile offenders in a bail application?

30.	In order to determine these issues, it is necessary to make some observations about the Juvenile Courts Act. The Juvenile Courts Act establishes, amongst other things, a system of Juvenile Courts to deal with juvenile offenders. The term "juvenile" is defined under Section 2 of the Juvenile Courts Act and it 'means a person aged not less than seven years and less than 18 years'. The term "infant" is also defined under Section 2 of the Act and it 'means a person aged less than seven years'. Except for the circumstance envisaged under Section 45 of the Juvenile Courts Act, a Juvenile Court has no jurisdiction in respect of proceedings against a person aged 18 years or upwards: Juvenile Courts Act, Section 16 (1). A Juvenile Court has jurisdiction, in the area for which it is established, to hear and determine summarily all offences otherwise triable in a District Court: Juvenile Courts Act, Section 15 (a). Where a juvenile is charged with an indictable offence other than homicide, rape or other offence punishable by death or imprisonment for life, a Juvenile Court has jurisdiction to hear and determine the charge summarily in accordance with the provisions of the Juvenile Courts Act: Juvenile Courts Act, Section 15 (b). Where a juvenile is charged with a homicide offence, rape or other offence punishable by death or imprisonment for life, the committal proceedings shall be dealt with by a Juvenile Court; and the trial shall be heard and determined by the National Court: Juvenile Courts Act, Section 18 (1). 

31.	Part V of the Juvenile Courts Act (Sections 19 to 22) deals with procedures for arrest and detention of juveniles. According to Section 21 (2) and (3) of the Juvenile Courts Act, where a juvenile is arrested (whether by a member of the Police Force or by a person other than a member of the Police Force) the officer in charge of the police station where the juvenile is remanded shall:

1.	immediately notify a parent or a responsible person, and a Juvenile Court Officer, and allow access by all or any of them to the juvenile; and

2.	place the juvenile in a remand centre or in such other place as is approved by the Director of the Juvenile Courts Service for that purpose; and

3.	notify a Juvenile Court Officer of the arrest, the reasons for the arrest and the place of detention.

32.	According to Section 21 (5) of the Juvenile Courts Act, where a juvenile is granted bail, the bail authority may require, as a condition of bail, that the juvenile be placed in the care of a parent or responsible person who agrees to accept him. The phrase "bail authority" is defined under Section 21 (1) of the Juvenile Courts Act and it "means an authority empowered to grant bail in accordance with the Bail Act (Chapter 340)". It would seem and it has been the case over the years that juvenile offenders are subject to the same principles governing the grant or refusal of bail as adults. It follows that being a juvenile per se is not an exceptional circumstance. Juvenile offenders like adults must show an exceptional circumstance why his continued detention is not justified. The Juvenile Courts Act does not set out any special considerations for juvenile offenders in a bail application.

33.	I accept that Bobby, Timothy and Newman are juveniles for purposes of the Juvenile Courts Act.

34.	The law recognises that young children are fragile, very vulnerable and incapacitated both physically and mentally in their early development compared to adults and for these reasons, special laws for their protection have been promulgated by the legislature. For example, according to Section 30 (1) of the Criminal Code, a person under the age of 7 years is not criminally responsible for any act or omission. A further example is that according to Section 30 (2) of the Criminal Code, a person under the age of 14 years is not criminally responsible for an act or omission unless it is proved that at the time of doing the act or making the omission, the person had the capacity to know that he ought not do the act or make the omission. In deciding whether a person under the age of 14 years is criminally responsible for his act or omission, the issue for consideration and determination beyond a reasonable doubt is whether that person had the capacity to know the difference between doing what is right from wrong. Another example is that corroboration is not required in sexual offences against children brought about by the amendments to the Criminal Code through the Criminal Code (Sexual Offences and Crimes Against Children) Act, No.27 of 2002 (Section 229H). 

35.	It has been held that very young age is a special mitigating factor for purposes of sentencing: Manu Kovi v The State (2005) SC789.

36.	Guided by the special treatment accorded to children demonstrated by the provisions of the Criminal Code I have identified already and the principle in Manu Kovi, I would treat the very young age of 9 years of Newman as an exceptional circumstance. I am satisfied that Newman has shown cause why he should remain in the custody and care of his parents and not be placed in a juvenile remand centre or its equivalent at a correctional institution or a place approved by the Director of the Juvenile Courts Service for that purpose.

37.	Bobby and Timothy are not of very young age. Both of them are over the age of 14 years. 

38.	Under the first ground, the applicants also state that they have been unnecessarily implicated. The question of the guilt or innocence of the applicants is a matter for trial. This is not an exceptional circumstance.

39.	Under the second ground, the applicants state that they have been detained together with adult prisoners at the Wabag Police Station cell for more than 2 weeks where influence of adult offenders is very high. Sub-sections (18) and (19) of Section 37 of the Constitution are relevant. They state:

"(18)	Accused persons shall be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons. 

(19)	Persons under voting age who are in custody in connexion with an offence or alleged offence shall be separated from other persons in custody and be accorded treatment appropriate to their age."

40.	As I have mentioned already, Newman was released by the police to the custody and care of his parents about 2 ½ weeks after his apprehension and detention on 8th April 2013. For that reason, these constitutional provisions do not apply to him any more for purposes of his application.

41.	From materials before me, I am satisfied that Bobby and Timothy are held in custody with adult prisoners and they are both under the voting age. They have been in custody for a period of 5 months and 12 days as at the date of this ruling. No evidence to the contrary was produced by the Respondent. Their detention in circumstances described is contrary to Section 37 (18) and (19) of the Constitution. Do these constitutional breaches amount to exceptional circumstances? What is envisaged by these provisions is that it is not in the best interests of young or juvenile offenders to be placed with adult offenders whether convicted prisoners or not considering the dangers of exposure to hard core criminals. In considering this particular ground, I apply the principle propounded by the decisions in Bernard Juale and Bernard Uriap that what amounts to an exceptional circumstance must always be considered in the light of the peculiar circumstances of a particular case and is a question of degree. I am satisfied that these constitutional breaches amount to exceptional circumstances. Bobby and Timothy have shown cause why their continued detention at the Wabag Police Station cell is not justified.

42.	The third ground is that since their apprehension and detention, police have unnecessarily interrogated each of them in the absence of a Juvenile Court Officer or a lawyer or their parents or guardians. No evidence to the contrary was produced by the Respondent. I think this is a matter that can be raised either at the committal proceedings or trial should they be committed to stand trial in the National Court. It is not an exceptional circumstance.

43.	As to the suitability of the proposed guarantors, I concur with Mr. Kuvi's submission that the proposed guarantors are unsuitable because they are both relatives of the applicants. This accords with the principle propounded in Charlie Posanau & David Koyama. This does not, in my view, affect the wide discretion vested in the Court by Section 21 (5) of the Act where a juvenile is granted bail to place the juvenile in the care of a parent or responsible person who agrees to accept him by way of a condition of bail. I think these are two different things.

44.	Notwithstanding the unsuitability of the proposed guarantors, in the exercise of my discretion, I will grant bail to all the applicants. 

45.	The following conditions shall apply:

1.	Bobby Seki shall pay cash bail of K1,000.00.

2.	Timothy Seki shall pay cash bail of K1,000.00.

3.	Newman Ale shall pay cash bail of K1,000.00.

4.	The applicants shall nominate two guarantors for the Court's approval by 9:30 am on Friday, 27th September 2013.

5.	Until further order, the applicants shall be in the custody and care of their fathers whilst on bail.

6.	The applicants shall reside with their parents at Sakales village, Wabag whilst on bail.

7.	The applicants shall not interfere with any State witness in any way, manner or form whilst on bail.

8.	The applicants shall keep the peace and be of good behavior in the community whilst on bail.

9.	The applicants shall remain indoors between 6:00 pm and 6:00 am everyday whilst on bail.

10.	Each applicant will report to the National Court Registry at Wabag between the hours of 9:00 am and 3:00 pm every government fortnight Friday until his case is dealt with according to law.

11.	The applicants shall not leave the Enga Province whilst on bail except with the leave of the Court.

12.	The applicants shall attend all crimes call-overs should they be committed to stand trial in the National Court.

13.	The applicants, Bobby Seki and Timothy Seki shall be released from custody upon production of official receipts issued by the Department of Finance or its agent in Wabag or Mt. Hagen evidencing payment of bail monies.

14.	The applicant, Newman Ale shall produce evidence of payment of bail monies, i.e., original receipt issued by the Department of Finance or its agent in Wabag or Mt. Hagen when he next appears before me. 

15.	All applicants shall appear before the Court at 9:30 am on Friday, 27th September 2013 with their proposed guarantors
____________________________________________________

Public Solicitor: Lawyer for the Applicants
Public Prosecutor: Lawyer for the Respondent