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Turkia v State [2014] PGNC 159; N5765 (18 August 2014)

N5765

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NOS. 195 – 203 OF 2014

IN THE MATTER OF AN APPLICATION FOR BAIL
PURSUANT TO SE CTIONS 42 (6) OF THE CONSTITUTION & SECTION 6 OF THE BAIL ACT (CH.NO.340)

BETWEEN

HAMAU TURKIA & 8 OTHERS
Applicant/Defendants

AND:

THE STATE
Respondent

Kokopo: Lenalia; J
2014: 4th 18th August

PRACTICE & PROCEDURE – Applications for bail – Applicants kept in custody after being arrested for the alleged killing of victim.

PRACTICE & PROCEDURE – Application for bail – Are there any exceptional circumstances while undergoing the committal processes in the District Court? – Relevant principles.

BAIL – Right to bail after at all times from arrest to conviction – Application granted

Cases cited.

Re Heramn Kagl Diawo [1980] PNGLR 148
Re Fred Keating [1983] PNGLR 133
The State-v-Beko Job Paul [1986] PNGLR 97
Charley Posanu & David Koyama-v-The State (1.5.09) SCAPP.Nos.2 &3 of 2009

Counsel

Mr. D. Wesley, for the Applicants
Mr. L. Rangan, for the Respondent

August 18th 2014

History of Case

1. LENALIA, J. The first applicant comes from Bisapu village and the others from nearby Sohun village, Namatanai District, New Ireland Province. Applicant Allan Peril Betin comes from Vunamami village, Kokopo East New Britain Province. They are all charged with one count of willful murder under s.229 of the Criminal Code.

2. According to the facts of this case, the killing took place somewhere at Matanakala village near Sohun village, Namatanai, New Ireland Province. All applicants are now remanded in custody at Kavieng Correctional Services awaiting committal processes.

3. All applicants apply pursuant to s.42 (6) of the Constitution and section 4, 6 and 9 of the Bail Act. They have applied to be released on bail to wait for the committal processes in the District Court.

Counsel's Submissions

4. Mr. Donald appearing for the nine applicants made a lengthy submission due to the number of applicants as compared to a single application. Mr. Donald of counsel for the applicants submitted that his clients are entitled to bail at any time from arrest until he is tried, convicted or acquitted.

5. Counsel based his arguments on the rulings of a number of cases such as Re Fred Keating v The State [1883] PNGLR 133 and that of Re Herman Kagl Diawo [1980] PNGLR 148 for the proposition that, this court has discretion to grant or refuse bail on the instant applications.

6. Mr. Rangan of counsel for the Respondent objected to these applications on the grounds that, all applicants have been charged with the serious charge of willful murder and they must be remanded in custody to allow police to fully complete their investigations on the killing of the alleged sorcerer Eramas Topital.

Application of Law

7. In support of their applications, the applicants have filed their own affidavits. They have also included affidavits of two guarantors each. The court has read all their affidavits and each applicant gives various reasons as to why each of the applicant should be granted bail.

8. Each guarantor has also given reasons why the applicants should be granted bail and made undertakings on the nine applicants to be granted bail.

9. The wording of s.42 (6) of the Constitution and s.6 of the Bail Act is clear and each provision say that an applicant is entitled to bail at any time during the process of a criminal proceedings.

10. The facts upon which the police suspected the nine applicants show that the nine applicants and others conspired amongst themselves to kill the victim Eramas Topital. This followed suspicion that the victim had performed sorcery on three persons from Sohun No.2 village. The killing is supposed to have taken place at Matakala village, Namatanai on 11th March 2014. The decease died on his way from Namatanai Health Centre to Kavieng Hospital for treatment. He died from shortage of blood.

11. Because, the applicants are charged with willful murder, pursuant to s.4 of the Bail Act only the National Court or the Supreme Court may hear applications either for the offence they are now charged with or any other offences punishable by death. That Section states:

"(1) A person—

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

(b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or breaking and entering 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,

shall not be granted bail except by the National Court or the Supreme Court.

(2) For the purposes of Subsection (1), "firearm" includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile."

12 Mr. Donald the lawyer for the applicants submitted that his clients are entitled to bail at any time from arrest to conviction or acquittal. That all applicants are family men and the court must take into account the welfare of the families because, many people who were arrested for the similar or same crime including these applicants with some of who have been refused bail should be granted bail awaiting committal proceedings.

13. In the mean time, while all applicants are currently remanded in custody in Kavieng. Counsel asked the court to consider the terms of ss.4 and 6 of the Bail Act and s.42 (6) of the Constitution. Counsel submitted that this court has discretion to either grant or refuse bail.

14. I note here that, all applicants are charged for willful murder and s.4 of the Bail Act says that only the National and Supreme Courts may allow bail on cases of willful murder, murder and those offences punishable by death.

15. The principles of law developed from case law authorities on application of s.42 (6) of the Constitution and s.6 of the Bail Act is that an applicant is entitled to bail at any time during the criminal process from arrest to committal or during committal proceedings and in the course of the trial if the trial had commenced up until he or she is convicted or acquitted: Re Heramn Kagl Diawo [1980] PNGLR 148, see also Re Fred Keating [1983] PNGLR 133.

16. It is established law that, where one or more of the considerations in s.9 (1) of the Bail Act has been proven, bail should be refused unless an applicant can establish cause why his detention in custody is not justified. Even where one or more of the considerations under s.9 (1) of the Act is made out, the Court has discretion to grant bail: Re Fred Keating (supra).

17. Section 9 (1) of the Act stipulates that when a bail authority is considering to grant or refuse bail, other than for an offence of treason or wilful murder, bail should not be refused unless a bail authority is satisfied as to one or more of those considerations in s.9 (1) (a) to (g) of the Act. Mr. Rangan submitted that, for the interest of justice, since the applicants case is still in the process of investigation, the applicants should be refused bail.

18. The court has discretion to refuse or grant bail in any application considering all circumstances attached to such application. The State v Beko Job Paul [1986] PNGLR 97, see also the application of Charley Posanu & David Koyama v The State (1.5.09) SCAPP.Nos.2 &3 of 2009. It has been repeatedly said, that where one of the conditions mentioned in s.9 of the Bail Act is present, it does not follow that, bail should not be granted: The State v Peter Kakam & Others [1984] PNGLR 99.

19. In considering whether to grant bail or not, the court must take into account submission by the lawyer for the Respondent and the Applicants say that the applicants case is still under investigation and it is left to the court to decide whether to grant or refuse bail. The State bares the onus to satisfy the court whether it should not grant bail.

20. I have noted that, the proposed guarantors may not be related to the applicants. There may be no 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. (See also Paul Guan v Independent State of PNG (6.1.09) N3576 Charles Posanu and David Koyama v The State (1.5.09) SCAPP.Nos.2 & 3 of 2009.

21. Part of Mr. Rangan's submission relates to change of circumstances. Counsel's view is that since the applicants are all healthy, there is no such change of circumstances so that the court should not consider bail on behalf of the applicants. The issue raised by counsel is in my view a matter that will require consideration of the interest of justice and the court must then decide the circumstances attaching to these applications and consider whether it would grant bail or not.

22. I have read the affidavits of the applicants. There may not be any special and exceptional circumstances attaching to their applications. The applicants are charged with a capital offence. Taking a life of a person has always been serious. A person charged with wilful murder is not entitled to bail unless exceptional or special circumstances are shown: Ipara Natesa Atingi-v-Temi Joshia [1982] PNGLR 286.

23. I remind myself, the bail applications brought before me is not a trial for that matter. I note from the affidavits of almost all applicants that they all come from Matakala, Sohun, Bisapu and one from Vunamami villages. All applicants are family men and have family responsibilities towards their spouses and children many of whom attend various schools in New Ireland.

24. To adopt the principle of "changes of circumstances" and apply it to the circumstances of these applications would be in my view, not in the best interest of justice. I will treat these applications differently from cases of tribal fights which are not uncommon now. Apart from these nine applicants, the court was informed through the course of counsels' submissions that another big group of applicants have been refused bail in court 2 and they have either appealed or are in the process of appealing.

25. It may seem like the whole village was involved in the alleged sorcery killing. The issue arises in this case is compared to individual cases where the risk of absconding bail is very high. The applicants on these applications do come from almost the same village and nearby and I am of the view that, there is no risk of absconding.

26. For the above reasons, this Court is satisfied that the applicants have discharged the onus placed on them to establish why they should be granted bail. I am of the view that there has not been any change of circumstances.

27. It is established law that where the interest of justice is such that an application for bail should be considered, the court should grant bail.

28. The court has read through all affidavits of the proposed guarantors. The applicants are charged with the offence of wilful murder. Mr. Rangan's objection relates to whether, the applicants will comply with any conditions if granted bail. There are no other issues raised for the court to consider against these applications. I grant bail to all the applicants in the following terms:

1. The applicants are granted bail of K1, 000.00 cash each payable forthwith.
   
2. The applicants shall report to the CID office either at Namatanai or Kavieng where the investigation into the killing is being carried out.
   
3. They shall each report to the District Court as to when they are required to attend the committal processes until they are either committed to stand trial or discharged in the event that the Committal Court finds that there is insufficient evidence to commit them for trial in the National Court.
   
4. They must then comply with any orders of the Committal Court.
   
5. They must not leave New Ireland Province unless they seek leave for the variation of these conditions.
   
6. They shall not interfere with any State witnesses, nor shall they speak to any of them while they are undergoing the investigation processes.
   
7. They shall not leave New Ireland Province until the Investigating Officers in- charge of his case considers otherwise.
   

29. Bail granted to each applicant accordingly.

30. The following chart contains the names of applicants and their various guarantors.

30. Each guarantor shall pledge to the State sums of K1, 000.00 each in the event that any of the above applicant does not fully comply with the aforementioned conditions. In case of those guarantors whose name appears more than once, the same amount pledged shall apply.
--------------------------------------------_______________________________________________________________
Donald & Company Lawyers: Lawyer for the Applicants
The Public Prosecutor: Lawyer for the Respondent