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Maragau v State [2016] PGNC 109; N6280 (12 May 2016)

N6280
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (APP) NO. 505 & 507 OF 2015

IN THE MATTER OF A BAIL APPLICATION

PURSUANT TO SECTION 42 (6) OF THE CONSTITUTION
AND SECTIONS 4, 6 & 7 OF THE BAIL ACT CHAPTER NO. 340

BETWEEN
JACOB MARAGAU & TOVO ISIDOR MARAGAU

V

THE STATE

Lae: Murray, J

2016: 30 March & 12 May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application – National Court –Previous Applications refused by 2 Judges of the National Court - Fresh Application to another Judge of the National Court - Primary basis - Change in Circumstances - Onus is on the Applicant to establish change in circumstances since last bail application - Change in circumstances must relate to the basis for refusal in the last application - Requirement not satisfied - Applications refused.

Cases Cited
Dr. Theo Yausause vs. State (2011) SC 1112
Noah Kero vs. The State (2009) SC 998
Re Fred Keating [1983] PNGLR 133
Re Thomas Markus N1931

Legislation:
Bails Act

Counsels

Mr. L. Siminji, for the Applicants
Mr. J. Waine, for the Respondent

DECISION

12 May, 2016

1. MURRAY, J: The Applicants are son and father. They are charged with

1 count of willful murder each pursuant to section 299 of the Criminal Code and are currently in custody. This is their applications for bail pursuant to section 7 of the Bail Act, following the grant of an application for an adjournment of their trial, by Mr. Siminji, their counsel, made on 30^th March 2016.

2. The statement of facts as alleged by the State, is set out in the judgment by Batari J with respect to the first application by Jacob Maragau. Essentially, the allegation by the State is that:
On 27^th February 2010, Jacob Maragau directed his son, Tovo Isidor Maragau and others to attack and kill the Deceased, George Naeman, and he was present when the Deceased was killed. State alleges that the motive for killing the Deceased was that, the Deceased who, prior, to his demise had, as the chairman of Morobe Lands & Physical Planning Board, issued a Notice to Jacob Maragau to pull down the fence of his Club (Club 140) which had extended into the boundary to State reserve land, at Tent City. Being aggrieved by that, Jacob Maragau gave orders to his relatives, including his son to kill the Deceased, which they did on 27^th February 2010.

3. Tovo Maragau has been in custody since 28^th February 2010, whilst Jacob Maragau has been in custody since 8^th September 2010. Their trial started on
7^th July 2014, and on 18^th July 2014, State closed its case. Following the close of State’s case, Mr. Siminji intimated to the Court that he wished to make a no case submission application, but needed time to prepare. I then adjourned to
9^th September 2014. On that date, I heard submissions and reserved my decision to 17^th October 2014, where I dismissed the No Case Submission, and based on availability of counsel, ordered for the trial to continue on 9^th March 2015. On that date by consent, the continuation of the trial was further adjourned until 13^th March 2015. Defence opened its case and after calling 2 witnesses out of 13 witnesses, the trial was adjourned again, and since then, it’s been adjourned on numerous occasions and for various reasons. The last adjournment leading to this application for bail was on the basis that their counsel was not ready to proceed. As a result the trial has now been adjourned to continue in the week starting 30^th May.

4. Pending that the present application was brought before me as a National Court Judge. It is a second application by Tovo Maragau and a third application by Jacob Maragau. The first application by Tovo Maragau was before Justice Cannings in Waigani which was refused on 31^st December 2013, under section 9 (1) (c) (i) of the Bail Act, because the applicant is charged within an offence which consists of a serious assault.

5. The first application by Jacob Maragau was made before Justice Batari and was refused on 8^th September 2010. The refusal was made under section 9 (1) (c) (i); (d), (e) & (f) of the Bail Act.

6. The second application by Jacob Maragau was made together with that of Tovo Maragau before Cannings J and was refused for the same reasons.

7. At the start of submissions by counsel for the Applicants, I enquired if the applications were properly before the National Court, seeing that this was a second bail application by one applicant and third application by the other applicant, and whether the applicants ought to have made their applications in the Supreme Court under section 13 of the Bail Act.

8. Mr. Siminji of counsel for the Applicants submitted, the basis of the current application is “change in circumstances” and is therefore properly before this Court. Mr. Waine, who appeared for the State took no issue with that.

9. In the case of Re Thomas Markus, (1999) N1931, Injia J as he then was, held:
   

“An application for bail based on change in circumstances can be made to the same or another Judge of the National Court, as long as the applicant can show change in relevant circumstances, which must relate to the earlier reason for refusal.

Based on that and in the absence of any argument to the contrary, I proceeded to hear the applications on the basis of change in circumstances.”

Law

10. Section 42 (6) of the Constitution reads:

“A person arrested or detained for an offence (other than treason or willful murder as defined by an Act of Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interest of justice otherwise require.”

11. Section 7 of the Bail Act reads:

“Subject to Section 4, where a person is in custody in connexion with any proceedings, including proceedings for committal for trial or sentence in the National Court, the court shall, on each occasion that it adjourns the proceedings before conviction, consider and accordingly grant or refuse bail to that person in accordance with section 9.”

12. The Applicants are charged with wilful murder. By application of section 42 (6) of the Constitution, bail is not readily available to the 2 applicants/or other persons who have been charged with wilful murder or treason. However, this does not mean that any one charged with treason/wilful murder as in these cases must be refused bail at all times. Section 4 of the Bail Act provides that, an applicant charged with treason/wilful murder can still be granted bail but the decision to grant bail will depend on the considerations in Section 9 (1) of the Bail Act.
If one or more of the Section (1) considerations is/are established, bail may be refused, unless the applicant can show by appropriate evidence that the continued detention is not justified. (see Re Fred Keating [1983] PNGLR 133 and Dr. Theo Yausause vs. State (2011) SC 1112).

13. The principles enunciated in Re Fred Keating and approved and followed in Yausause case, apply in my view only to fresh applications either under section 13 of the Bail Act or an application moved for the first time under any of the following provisions: Sections 4, 6, 7 & 8 of the Bail Act.

14. The present application are made under Section 7 of the Bail Act on the ground of change in circumstances.

15. In Noah Kero vs. The State (2009) SC 998, the Supreme Court in dealing with an application for bail under Section 13 (2) of the Bail Act based on change in circumstances, the Court held that, an application for bail to the Supreme Court based on change of circumstances is different to a fresh application for bail to the Supreme Court.

16. At paragraph 6 of the judgment, the Supreme Court said:

“ ............... In an application for bail based on change of circumstances, an Applicant is required to establish that circumstances have changed since the last application for bail was refused and the onus is on the Applicant. He must demonstrate that the grounds upon which the National Court had refused bail have changed or no longer exists. Further, the circumstances must be relevant to the earlier application for bail. Only then will the Supreme Court grant bail.”

17. I find these principles also applicable in an application for bail in the National Court if brought on the basis of change in circumstances, and apply them to the case before me.

18. In the present application, Mr. Siminji of counsel for the applicant submitted the applications are based on change in circumstances and rely on a number of affidavits: These affidavits are:

Firstly with respect to Tovo Isidor Maragau:

1. Affidavit in Support for Tovo Isidor Maragau dated 19^th November 2015 and filed on 20^th November 2015.
   
2. Affidavit in Support for John Jigembe dated 17^th November 2015 and filed on 20^th November 2015, and
   
3. Affidavit in Support for Simon Elap dated 16^th November 2015 and filed on 20^th November 2015.
   

19. With respect to Jacob Maragau:

1. Affidavit in Support for Tovo Isidor Maragau dated 16^th November 2015 and filed on 20^th November 2015.
   
2. Affidavit in Support for John Jigembe dated 16^th November 2015 and filed on 20^th November 2015, and
   
3. Affidavit in Support for Rtd. Chief Sergeant James Gesa dated

18^th November 2015 and filed on 20^th November 2015.

20. Applicant, Tovo Isidor Maragau’s affidavit discloses personal detail of the Applicant which includes: His age, which is 19 years old; his place of origin, his residential address, his relationship to Jacob Maragau and his educational background. In addition, he also disclosed information as to: the charge laid against him; when he was taken into custody, his first bail application and the outcome.
Plea taken by one of his co-accused, progress of his case, the period he has been in custody, which he states is a period of 5 years, 3 months and at paragraph 22, he states the reasons/grounds he relies on in support of his application for bail as follows:

1. Deny his charge and will continue to do so until the matter is finalized.
   
2. I also Deny the allegations supporting the charge.
   
3. This case has dragged on for a long time. Much of the adjournments were not our doing. With respect, it is the Court that is causing the delays.
   
4. The jail is over crowded with so many remandees. There are a number of remanded with part heard matters waiting for decision on sentence and verdict.
   
5. I am my father’s eldest son who would be able to assist in our family business but I am in custody. I want to go out and assist in the business while waiting for our case to be finalized.
   
6. I also wish to assist my father locate and organize my witnesses for the continuation of our trial next year.
   
7. I have nominated sufficient guarantors who a person of good standing in the community who have agreed to pledge their support for this Application.
   
   1. Mr. John Jigembe

Deputy Head Teacher

Taraka Primary School

P O Box 2248. LAE, Morobe Province

2. Mr. Simon Elap

Licensed Aircraft Maintenances Engineer

North Coast Aviation

P O Box 35. LAE, Morobe Province

21. Simon Elap and John Jigembe are the Applicant’s proposed guarantors. They both gave evidence of their knowledge of the Applicant and their knowledge of their obligations as guarantors if the bail application is granted.
John Jigembe is also a proposed guarantor for the Applicant Jacob Maragau.

22. Jacob Maragau’s affidavits discloses his personal background information which includes; His age – which is 41 years old; His place of origin; His residential address, the period he has lived at that address, his marital status, and the number of children he has. In addition, he also deposed to the following:
The charge and allegations made against him; His relationship to Chris Maragau – a co-accused; His relationship to Tovo Isidor Maragau , co- accused; Background to his committal, first application for bail, period he has been in custody which he states is 5 years and 3 months; His poor – existing medical condition, progress of his case. Second bail application, which was refused and the basis for refusal and at paragraph 26, he states his reasons/grounds which he seeks to be out on bail; as follows:

1. I deny this charge and will continue to do so, until the matter is concluded.
   
2. I also deny the allegations supporting the charge. I am presumed innocent until proven guilty. Spending almost 6 years in custody is just as good as being a prisoner and that is denial of my rights.
   
3. This case had dragged on for a long time. Much of the adjournments were not our doing. While this Court has no part in it, I have expanded a lot of money; basically my family savings on my previous lawyers and my business concerns and cash reserves have been depleted. I need to be out on bail to get my business up and running.
   
4. Since my detention I have had no control over my business interest in Lae. My family and I depend on my 140 Club and other business activities since we decided to live in the Morobe Province. My club and other business interests have run down to almost non-existent and bankruptcy.
   
5. My elder son who would be able to assist is in custody with me. His mother my first wife had left with another man, whilst my 5 children are making ends meet with my second and only wife who has 3 children of her own.
   
6. I need to be out on bail to locate and organize my witnesses before we resume the trial next year. It has been a long time and our witnesses may have left Lae city.
   

23. James Gesa is the second proposed guarantor for Applicant – Jacob Maragau. He is a Policeman. Like the other 2 proposed guarantors, he also gave evidence of his knowledge of the applicant and his knowledge of his obligations as a guarantor.

24. I have considered all those affidavits and find, there is nothing in their affidavits that go to show change in circumstances, the basis of their applications before me. The matters referred to in their respective affidavits are matters in my view, appropriate for consideration in a fresh application for bail, under section 13 of the Bail Act given that these are not their first application for bail and that the primary basis of their applications is change in circumstances.
The principles with respect to an application for bail based on change in circumstances are clear. In an application for bail based on change of circumstances, an Applicant is required to establish that circumstances have changed since the last application for bail was refused and the onus is on the applicant. The Applicant must demonstrate that the grounds upon which the earlier application was refused has changed or no longer exists. Further, the circumstances must be relevant to the earlier application for the bail.

25. To demonstrate a change in circumstances, the applicant must provide evidence of that. (see Re Thomas Markus - supra).

26. In the present case, the last bail applications refused by this Court was on
31^st December 2013. The basis for the refusal is section 9 (1) (c) (i) of the Bail Act.

27. Mr. Siminji submitted the basis of refusal of bail previously was under section 9 (1) (f) which is now changed, in that State has closed its case and so the consideration that the applicants are likely to interfere with State witnesses, no longer exist. I find this submissions misleading in that, the last refusal was on the basis of section 9 (1) (c) (i), and not section 9 (1) (f) as submitted by Mr. Siminji. There is nothing in the affidavits to show change in circumstances relevant to the refusal under section 9 (1) (c) (i).

28. In the circumstances, I am not satisfied that changes in relevant circumstances have been established by the Applicants since bail was last refused by Cannings J.
For these reasons I refuse bail.

29. Having ruled as I have just done, it is not the end for the 2 Accuseds.
They can still apply to the Supreme Court for bail under section 13 (2) of the Bail Act either as a fresh application, or on the basis of change in circumstances.

__________________________________________________________________
Public Solicitor : Lawyer for the Applicant
Public Prosecutor : Lawyer for the Respondent