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Kimai v State [2016] PGNC 120; N6313 (24 May 2016)

N6313

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR/APP. 59 OF 2016

REX KIMAI

V

THE STATE

Respondent

Wabag: Auka, AJ

2016: 13^th & 24^th May

CRIMINAL LAW - PRACTICE AND PROCEDURE – Application for bail–Reasons – No formal charges laid against him – No chances of securing employment – Family man and victim is his wife – Denied bail by Police – Considerations under s. 9 of Bail Act present which warrant refuse of bail – Unlikely to appear at trial – Serious assault – Threat of violence – Likely to commit an indictable offence – Own protection – Likely to interfere with state witnesses – Grant of bail discretionary but refused.

Case Cited:
Dr. Theo Yausase v. The State (2011) MP12 OF 2011 dated 18 & 22 February, 2011
Re Fred Keating v. The State [1983] PNGLR 133

Counsel:
Mr. R Bellie, for the Applicant
Mr. J Waine, for the Respondent

DECISION

24^th May, 2016

1. AUKA, AJ: The Applicant has been charged with the offence of Attempted Murder pursuant to s.304 of the Criminal Code.

2. He has been in custody since his arrest on 12^th December, 2015.

3. The brief facts of the case are that on 25^th June, 2015 at 6:30 pm after work, the victim (wife of the accused) went to Beat Street in Wabag Town with her one (1) year old baby to visit her first born son who at that time was with her father. Whilst at father’s place the accused approached her from the back and used his boot he was wearing and kicked her on her face and head. The accused then pushed her into the house, picked up an iron bar and hit her several times on her head causing deep cut. The victim also received cuts on her jaw, arms and ears. The victim became unconscious and fell on the floor. She was taken to Wabag General Hospital for treatment.

4. The application is made pursuant to s.3 and 6 of the Bail Act.

5. Four (4) broad reasons were given as basis for applying for bail:
1. That he was detained at Wabag Police Station lock up for 3 months without any formal charges being brought against him.
2. That he is a nursing officer and chances for seeking job employment is wasted while been unnecessarily detained.
3. He is a family man and the victim is his wife.
4. He had been denied bail by Police Prosecutors given their interest in the matter.

6. From the outset this court considers that the first and fourth reasons are of no merit and are dismissed.

7. There is Information in the file laid on 29^th Dec, 2015 undersigned by the Magistrate. This is evidence of the formal charge laid against him. On the summary of facts most particularly the 7^th paragraph, it shows that the applicant was arrested, cautioned, told of his constitutional rights, formally charged for attempted murder and locked him in the Police custody.

8. In relation to the fourth reason, there is no evidence that the Police Prosecutors denied him bail because they have an interest in the matter. What happened was that the bail Application was listed but Police Prosecutor did not appear to process the Application.

9. Mr. Waine for the State has vigorously objected to the grant of bail on the following reasons;
1. The Applicant is a violent person
2. That he is unlikely to appear at this trial s.9 (1) (a)
3. That the alleged act constituting the offence consists of serious assaults on the victim’s body s.9 (1) (c) (1)
4. That the Applicant is likely to commit another crime s.9 (1) (d)
5. That he is likely to interfere with state witnesses’ s.9 (1) (f)

10. Mr. Waine further relied on the affidavit of Detective Sgt Edward Tangone and the Affidavit of the victim Roselyn Joel both opposing the bail on the basis that the Applicant is a violent person and assaulted the victim on three occasions. That he will not turn up for his trial as he will go into hiding, that victim’s relatives are not happy with him and do not want to see him come out on bail. They might attack him and as such it is for his own safely that he must be kept in custody.

11. The right to bail is a Constitutional right. Apart from the offences of wilful murder and treason, it must be readily granted to those who apply for it. This clearly shows that bail is not an automatic right. It is subject to various considerations, the main ones being stated under s.9 of the Bail Act.
The applicant must first and foremost satisfy the court that his continued detention is not justified.
He does that by either showing that the consideration under s.9 of the Bail Act is not present or some other consideration warrants the grant of bail.

12. In the present case five (5) considerations under s.9 are present which would warrant refused of bail. They are:
1. Applicant unlikely to appear at his trial s.9 (1) (a)
2. The alleged act constituting the offence consists of serious assault on the victim s.9 (1) (c) (1)
3. Applicant likely to commit another crime s.9 (1) (d)
4. It is for his own safety that he be kept in custody s.9 (1) (e)
5. Applicant likely to interfere with witnesses s.9 (1) (f)

13. Despite the presence of these five (5) considerations which would invite a refusal of bail, the applicant can be granted bail at the discretion of the court.

14. The law on the grant of bail is settled. In Re Fred Keating v. The State [1983] PNGLR 38 Kidu CJ (as he then was) and Andrew J held that;

“If one of the considerations in s.9 is present, it does not follow that bail must automatically be refused, there is always discretion in the bail authority to grant bail”.

15. This is primarily based on the entitlement to bail pursuant to Section 42(6) of the Constitution and s.3 of the Bail Act.

16. In the present case the question is whether the reasons raised by the applicant are sufficient to constitute circumstance that would attract the exercise of discretion to grant bail.

17. To answer this question, the broad reasons, two of which I have found baseless need careful assessment.

18. The reasons in my view do not constitute circumstances that would attract bail.

19. The reason that he is a Nursing Officer and chances for seeking employment is wasted is not an exceptional circumstance. Loss of employment is a natural consequence of an accused person being remanded in custody. In the case of Dr. Theo Yausese v. The State, the Supreme Court said that losses of employment or business are natural consequences of an accused person being remanded in custody.

20. In relation to Applicants concern on his family. This is a relevant factor in this Application but in my view the Applicant is not genuine in raising this reason. If he is concerned for his family, he should have thought about the family’s welfare before he did what he did. In fact his wife who is the victim in this case has filed an affidavit deposing that he is a violent person and should be kept in custody.

21. The Courts in PNG have time and time said that before anybody thinks about committing a crime, he or she must consider that his or her action may affect his family badly.

22. In the matter of an Application by Dr. Theo Yausase v. The State (2011) MP 12 of 2011 dated 18 and 22^nd February, 2011 His Honour Kariko, J said;
“Where an accused person is remand in custody it is only natural that the family will suffer in the sense that it will miss the usual parental support (including emotional and financial”

23. It is my view that bail should not be readily available to these types of reasons for the exercise of discretion to grant bail.

24. Given all these observations bail is refused.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Applicant