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Ngotngot v State [2016] PGNC 138; N6264 (9 May 2016)

N6264

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (APP) NOs 146, 147, 148 and 149 OF 2016

BETWEEN:

JOE NGOTNGOT, ERIC JOHN, JACK BEMAU and DAVID HARO
Applicants

AND:

THE STATE
Respondent

Kokopo: Anis AJ

2016: 6 & 9 May

CRIMINAL LAW – Bail Act Chapter No. 340 - section 4 and 6 - applicants charged with wilful murder - State object to bail being granted - requirements under section 9 to be demonstrated - one or more facts under section 9 established - applicants to show why continued incarcerations not justified - applicants failed to provide valid reasons - bail refused

PRACTICE AND PROCEDURE - applicants fear their lives would be in danger if incarcerated given their profession as policemen - whether this is a valid ground for bail - considerations discussed - ground refused as a valid ground

Cases Cited:

Joe Puksy Purari v. The State (2001) N2077
Re Bail Application; Fred Keating v The State [1983] PNGLR 133
Re Bail Application, Aisi Koeba v. The State (2010) N4075)

Counsels:

Mr Kaluwin, for the Applicants
Mr Rangan, for the State

RULING ON BAIL

9^th May, 2016

1. ANIS AJ: The four applicants JOE NGOTNGOT, ERIC JOHN, JACK BEMAU and DAVID HARO (the applicants) are policemen. They applied for bail before this Court on 6 May 2016.

2. They each stand charged with one count of wilful murder under section 299 of the Criminal Code Act Chapter 262 (the Criminal Code).

3. The State (the prosecution) objected to the bail applications.

4. I reserved my ruling to 11am on 9 May 2016.

5. This is my ruling.

APPLICATIONS

6. The applicants filed four separate applications. I will deal with them together.

7. I note that the application documents did not state the precise provisions under the Bail Act Chapter No. 340 (Bail Act) which the applicants intend invoke to move their bail applications. But I note that at the hearing on 6 May 2016, their counsel referred to sections 4 and 6 of the Bail Act. I was satisfied that these were the correct provisions and allowed counsel to move the applications.

8. Let me set out sections 4 and 6 herein:

4. Only National or Supreme Court may grant bail in certain cases.

(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 break and enter 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.

6. Application for bail may be made at any time.

(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.

(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.

(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section 9.

BRIEF FACTS

9. I will summarise the facts as stated in the Summary of Facts.

10. On 21 July 2015 between 3am and 6am, the applicants arrived at Joe Nolu's block at Floodway, Warongoi in East New Britain Province. They parked two vehicles both marked as "02" next to the road some distance away. When they arrived at their designated location, they entered a house. There they apprehended Kenny Wesley (deceased). The deceased was with his father Joe Nolu. The applicants tied the deceased's hands. The applicants asked the deceased to show them his marijuana garden. The deceased denied having a garden of marijuana. Two of the applicants went inside the house and returned with 3 bush knifes and a spade.

11. The applicants led the deceased to his garden. Joe accompanied them. They crossed the floodwaters and arrived at the deceased's garden. The applicants interrogated the deceased regarding the marijuana plants. When the deceased denied, one of the applicants punched him. The deceased fell to the ground. There, the applicants punched and kicked the deceased repeatedly using their hands and legs. They set him up on a log and whilst interrogating him they continued to punch the deceased. At that point in time, one of the applicants hit the deceased on his head with a cocoa stump. Another one of the applicants hit the deceased's head with the spade he brought. And another applicant pushed a bush knife onto his throat.

12. The applicants found the marijuana plants on the other side of the deceased's garden. That then followed with severe beating of the deceased. The deceased was punched and hit with the cocoa stump.

13. They took the deceased back to their vehicles. The deceased was beaten right throughout the return trip from the garden. The deceased lost a lot of blood at that time. Upon arrival, the deceased felt dizzy because of the severe beating he received and from loss of blood sustained from his injuries. He started breathing heavily. Nigel who was the deceased's cousin was there to assist as well as the deceased's father Joe. The two had witnessed the incident.

14. The applicants took their time and drank some coconuts but then they realised the critical situation deceased was in. The applicants and other policemen rushed the deceased in their two vehicles to the Warangoi Health Centre. The deceased was declared dead on arrival.

APPLICANTS' EVIDENCE

15. The applicants rely on the following affidavits including the affidavits of their guarantors. I state them therein:

(1) Joe Ngotgnot

(i) His own affidavits filed on 6 May 2016 and 2 May 2016.

(ii) Affidavit of Anthony Seeto filed on 2 May 2016.

(iii) Affidavit of Paska Magaru filed on 2 May 2016.

(2) Eric John

(i) His own affidavit filed on 2 May 2016.

(ii) Affidavit of Fabian Saun filed on 2 May 2016.

(iii) Affidavit of Kenneth Wasikay filed on 2 May 2016.

(3) Jack Bemau

(i) His own affidavit filed on 2 May 2016.

(ii) Affidavit of Samuel Taken filed on 2 May 2016.

(iii) Affidavit of Gerevi Joachim filed on 2 May 2016.

(4) David Haro

(i) His own affidavit filed on 2 May 2016.

(ii) Affidavit of Emmanuel Saun filed on 2 May 2016.

(iii) Affidavit of Niopan Polopwei filed on 2 May 2016.

PROSECUTION'S EVIDENCE

16. The prosecution sought leave of the Court to rely on the Affidavit of Inspector Freda Woktamol filed on 27 April 2016.The affidavit is actually a District Court sealed document and I believe it was used therein concerning these matters sometimes earlier.

17. The applicants' counsel initially objected to its tendering. The prosecution in reply pointed to section 9(2) of the Bail Act and submitted that the Court should allow the evidence. The applicants' counsel later agreed or did not take issue and the prosecution tendered the affidavit.

18. The prosecution also relied on the Summary of Facts, which was filed on 2 May 2016 by Inspector Freda Woktamol. She is the arresting officer in the matter.

ISSUES

19. Let me set out the issues herein:

(i) Whether the prosecution has satisfied the Court, on reasonable grounds, on one or more of the considerations set out under section 9 of the Bail Act?

(ii) If so, whether the applicants have provided sufficient reasons to say why their continued incarcerations are not justified.

SECTION 9 - BAIL ACT

20. Section 9 of the Bail Act is relevant for this purpose. I set it out herein:

9. Bail not to be refused except on certain grounds.

(1) Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:—

(a) that the person in custody is unlikely to appear at his trial if granted bail; or

(b) that the offence with which the person has been charged was committed whilst the person was on bail; or

(c) that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of—

(i) a serious assault; or

(ii) a threat of violence to another person; or

(iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive; or

(d) that the person is likely to commit an indictable offence if he is not in custody; or

(e) it is necessary for the person's own protection for him to be in custody; or

(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings; or

(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property; or

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act against the person in custody; or

(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody; or

(j) that the alleged offence is one of breach of parole.

COURT'S POWER

21. The Court's power to grant or refuse bail is discretionary.

22. But let me recite subsection 1 of section 9. It reads:

Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations..
(Underlining mine)

23. So I note that in the exercise of my discretion, I must be satisfied on reasonable grounds on one or more of the considerations set out under section 9(1) if I am to refuse bail.

24. I also wish to refer to the leading Supreme Court's case of Re Bail Application; Fred Keating v The State [1983] PNGLR 133.The late Chief Justice Sir Buri Kidu held these:

“As pointed out earlier, a person charged with wilful murder can only be granted bail by the National Court or the Supreme Court. The Act does not make any specific provisions with regard to the considerations that should be applicable when bail applications in wilful murder cases are determined by the National Court and the Supreme Court. It is therefore clear that the considerations set out in s. 9 (1) apply and since s. 42 (6) does not apply to wilful murder cases, what I said earlier about the "interests of justice" are not relevant to such cases. I agree with my brothers Kapi and Andrew that in wilful murder (and treason) cases, only those considerations set out in s. 9 (1) of the Act are relevant and no others including "exceptional circumstances". I agree with Andrew J for the reasons he gives in his judgment that in wilful murder cases bail authorities have discretions”.

(underlining is mine)
25. I note that the Supreme Court in Fred Keating's case unanimously agreed that for bail applications in wilful murder cases, the only considerations are those set out in section 9 of the Bail Act and none other.

PROSECUTION'S SUBMISSION

26. Mr Rangan states four (4) reasons under section 9 of the Bail Act in regard to his objections. I summarise them herein:

(i) Section 9(1) (b)

The prosecution allege that Joe Ngotngot committed the present alleged offence whilst he was out on bail on another separate charge. As such, the prosecution submits that the Court should refuse bail for Joe Ngotngot.

(ii) Section 9(1) (c)

The prosecution allege that offences, for which the applicants have been charged with, consist of serious assault, threat of violence to another person and the applicants at the material time had in their possession offensive weapons. The prosecution submits that based on this ground, the Court should refuse to grant the four (4) applicants bail.

(iii) Section 9(1) (d)

The prosecution allege that the applicants are likely to commit an indictable offence if they are not in custody. The prosecution submits this Court should disallow the applicants bail on this ground.

(iv) Section 9(1) (f)

The prosecution allege that the applicants are likely to interfere with State witnesses or persons who have instituted the court proceedings. The prosecution allege that the mother of the deceased lives close to the police barracks 'Baliora' where the applicants reside. The prosecution submits this Court should disallow the applicants bail on this ground

APPLICANTS

27. Mr Kaluwin in reply, submits and I summarise them herein:

(i) In relation to the prosecution's claim that Joe Ngotngot was charged with the offence of wilful murder whilst he was on bail, the applicants do not deny but submit that the charge of wilful murder arose whilst Joe Ngotngot was performing his duty as a policeman.

(ii) In regard to the prosecution's claim that the applicants used firearms or offensive weapons, the applicants submit firstly that the Statement of Facts does not allege that they used firearms in the alleged assault. Secondly, they submit that they were performing their duties as policemen at the material time.

(iii) In regard to the prosecution's claim that the applicants are likely to commit indictable offences if the Court was to release them, the applicants submit that there is no evidence to suggest that.

(iv) In regard to the prosecution's claim that the applicants are likely to interfere with witnesses, the applicants submit that they will not interfere, and they say such a claim is not true. The applicants also referred the Court to Joe Ngotngot and Eric John's other offences whereby the two were later acquitted. The applicants submit that they did not interfere with witnesses in that other case. As such, they submit that it is likely to happen in the present case.

COURT'S FINDING

28. I think at the outset, I can dismiss ground 9(1)(d). The ground is quite difficult to prove and the prosecution in this case has not proven it. I find no evidence, which shows that the applicants are capable of, or they plan to, or are likely to commit indictable offences if they are to be released. I am not satisfied on reasonable grounds as required under section 9(1) of the Bail Act that the prosecution has established consideration 9(1)(d).

29. In regard to the claim that one of the applicants, that is, Joe Ngotngot has been charged with this offence whilst he was out on bail and therefore his bail should be refused pursuant to section 9(1)(b), I firstly find the fact to be correct. In the other unrelated matter CR 644 of 2014, the State charged Joe Ngotngot with the offence of Grievous Bodily Harm and the Court granted him bail in April or May of 2014. Joe Ngotngot is presently out on bail. Joe Ngotngot's charge of wilful murder was allegedly committed on 21 July 2015, which was during the time he was out on bail. The applicants do not dispute the fact but submit that Joe Ngotngot is charged with the present offence at the time when he was performing his duty as a policeman. I will look at the applicants' reasons together when I am addressing the second issue. For now, I am satisfied on reasonable grounds as required under section 9(1) of the Bail Act that the prosecution has established consideration 9(1)(b).

30. I refer to the next stated reason which is section 9(1)(c). In regard to the prosecution's claim that the charges the applicants are charged with involved serious assaults, threat of violence to another person and use of offensive weapons, I am satisfied that this consideration has been met. I base my ruling on the Statement of Facts. I note that it may be too early to presume anything. Even with the evidence of the applicants, they also simply deny the charges and according to law, they are presumed innocent until proven guilty. But I take particular note of the Statement of Facts because therein I note that the father of the deceased was present and appear to have witnessed the event. Also, the deceased cousin Nick was also mentioned as present at the later part of the day. Because the deceased's father Joe was said to have witnessed the incident, I will give due regard to the Statement of Facts to an extent that I can say that I am satisfied on reasonable grounds as required under section 9(1) of the Bail Act that the prosecution has established consideration 9(1)(c). I note as well that the Statement of Facts gives a detailed account of the events leading up to the death of the deceased, and I would think that it has to come from someone who has actually witnessed the incident. The deceased was severely assaulted and threatened. The weapons used were offensive weapons namely a bush knife, a spade and cocoa stumps. I note that this Court is not bound to apply the normal rules of evidence. I am not bound to apply the technical rules of evidence but I..may act on such information as is available to...me. I have used the abstracts from section 9(2) of the Bail Act. In view of section 9(2), the information available to me now which I have considered as reliable, include the Statement of Facts.

31. The final reason given by the prosecution to request that bails should be refused, is section 9(1) (f). The prosecution allege that the applicants are likely to interfere with the State witnesses. I am satisfied that the prosecution has established this consideration.

32. The applicants are all policemen. They are based here in East New Britain. The deceased died on 21 July 2015. He was alleged to have been murdered. I turn to the Statement of Facts and refer to paragraph 7 page 3 and I read:

The matter was reported at Warangoi Rural Police Station for further investigation. However, was not investigated due to suppression from the bosses in the Province.

A follow-up was made by the complainant and the matter was again reported to Ombudsman Commission at Kokopo for Police Inaction and also to the Internal Affairs Directorate, Investigation Unit at Police Headquarters for further investigation and action.

33. It appears that there had been some delay in investigation by police in East New Britain, that is, according to Inspector Woktamol. The father of the deceased had had to go all the way to the Internal Affairs Directorate, Internal Investigation Unit at Police Headquarters in Port Moresby, to report the matter. And because of his efforts, the investigation is now underway from the Internal Affairs Directorate.

34. I note that investigation has just begun because the applicants were charged on 25 April 2016. As such, the applicants are expected to appear before the Committal Court in the days or months to come.

35. I now arrive at a critical point in my judgment. I note that during the presentation of submissions, the Court asked some questions to find out whether the deceased died whilst the applicants or the police were transporting him to the hospital or to custody. Counsel for the applicants informed the Court that the applicants and other officers used two vehicles at that time. This appears consistent with what is stated in the Statement of Facts. Counsel also informed the Court that when the applicants left with the deceased in the two vehicles, the applicants were not in the vehicle that transported the deceased but they were in the second vehicle. It seems the applicants wanted to demonstrate to the Court that since the deceased was in the other vehicle, and died upon arrival at the hospital, they could not have been responsible for his death, given the fact that they were in separate vehicles. I think the applicants, in making this argument before the Court, have confirmed a critical fact. What fact is that? Well, the applicants have put themselves at the location as alleged in the Statement of Facts. Based on the Statement of Facts, the deceased was already mortally wounded before they rushed him to the hospital. Being in a separate vehicle from the one that carried the deceased in my view, does not make the Statement of Facts look speculative, nor does it weaken the allegations laid against the applicants. In fact, the submissions appear damning against the applicants because in my opinion it puts them right at the end of the "death trail" so to speak, of the deceased. Based on the Statement of Facts, the deceased suffered severe beatings and his conditions were critical. The deceased was actually dying but the policemen who were there did not see that until the very last minute when it was too late.

36. I also ask myself this:- If the applicants were at the location where the deceased was assaulted and if they deny that they were responsible for the death of the deceased, why did they not name those who were responsible for the death of the deceased, or provide information as to what happened at that time. The incident occurred on 21 July 2015, which is more than 9 months ago. Where is their report? Where are their statements? Why were these not brought into evidence before this Court? In my opinion, to keep quiet about this matter for nine months and then when you are finally charged, to quickly prepare a brief affidavit to say you are innocent or you will vigorously defend the matter, is fine but it does leave a lot of unanswered questions.

37. With these doubts hanging in the air, and in particular for the applicants to keep quiet about the matter up until now, it suggests that they have done nothing. And it suggests that perhaps they are concealing the truth because as I have stated above, it is more than 9 months now and the applicants have provided nothing to this Court to explain themselves. In my opinion, all these go to show that it is possible that the applicants may interfere with the witnesses if they are released on bail.

38. I also refer to Inspector Woktamol's evidence were she said she believes that the applicant will interfere with witnesses if they are released out on bail. This is deposed to at paragraph 9 of her affidavit. Inspector Woktamol is an officer who is appointed at the executive level within the police hierarchy at the Police Headquarters. She appears to be the lead investigator and arresting officer and she has carriage of the files for the matter. On that basis, I give due consideration to her evidence.

39. I finally note that three (3) of the applicants have demonstrated by their actions that they can defy directions from their superiors. Inspector Woktamol is an officer of superior rank. In her evidence, she gave directions for all the applicants to appear before her on 22 April 2016. Instead only David Haro showed up whilst the other applicants did not. By reading Joe Ngotngot's affidavit filed on 6 May 2016, he was too busy making assumptions, trying to predict the intentions of Inspector Woktamol, making his personal assessment on the conduct of the investigating team as well as running around trying to seek legal assistance. If you have a direction from your commanding officer or a superior commander in rank, you are duty bound to comply. I reject Joe Ngotgnot's evidence that he never knew about the directions. I rule that Joe Ngotngot is not being truthful in his evidence. David Haro attended the interview. I note that since we are all living in a digital age where almost everyone has access to mobile phones, it is almost unbelievable to accept that Joe Ngotngot and the other 2 applicants were kept in the dark all that time.

40. The latest incident the applicants had with Inspector Woktamol also shows an ill faith on their path and that may also go to show that if they are released they may not co-operate with the investigating team.

SUMMARY OF FINDINGS - PROSECUTION

41. In relation to the first issue, Whether the prosecution has satisfied the Court, on reasonable grounds, on one or more of the considerations set out under section 9 of the Bail Act? my answer is "yes, the prosecution has satisfied this Court on reasonable grounds in relation to grounds under section 9(1)(b)(c) and (f)."

CONTINUED INCARCERATION NOT JUSTIFIED.

42. Because I have found that the prosecution has established considerations 9(1) (b) (c) and (f), based on the Fred Keating's case, the burden shall shift and the applicants are required to show why their continued incarcerations in custody are not justified. I must say that I find no valid reasons that would persuade me to release the applicants out on bail.

43. The applicants say if they remain in custody, because of the work as police officers, they have arrested many offenders who are in custody and that being the case their safety or lives will be at risk.

44. Case law shows situations where the Court can allow an applicant to either stay in custody or be out on bail depending on the circumstances of the case (see case: Re Bail Application, Aisi Koeba v. The State (2010) N4075). But the key factor I think is for the Court to have evidence to support the claim. Merely submitting that because I am a policeman, I have enemies waiting for me at the jail, in my opinion, cannot in itself constitute a valid ground for the Court to exercise its discretion favourably for an applicant. I also note that at the Correctional Service, those on remand are kept separate from the convicted prisoners.

45. I also note Justice Kandakaksi's remarks in the case of Joe Puksy Purari v. The State (2001) N2077 where he held and I read:

If an applicant's family is put to some suffering of some sort by their arrest and detention, it is their own doing. The effects of their conduct should not form the basis for an exercise of the discretion vested in a bail authority, to decide whether or not to grant bail. Accordingly, I also rejected the third ground advanced in support of the application for bail. I arrived at that decision, as I was of the view that the ground or argument advanced was not a valid ground for bail.
(Underlining mine)

46. In addition to what I have already stated above, the consideration held herein, in my opinion, is valid and I adopt that herein.

47. I am therefore not satisfied that the applicants have provided sufficient reasons to say why their continued incarceration is not justified.

EXERCISE OF DISCRETION

48. I will exercise my discretion in favour of the prosecution and refuse the bail applications of JOE NGOTNGOT, ERIC JOHN, JACK BEMAU and DAVID HARO.

THE ORDERS OF THE COURT

49. Bails refused.

The Court Orders accordingly,

__________________________________________

Office of the State Prosecutor: Lawyer for the State

Office of the Public Solicitor: Lawyer for the Applicant