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Yamsan v State [2016] PGNC 391; N6635 (31 October 2016)

N6635

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NOS. 432, 433, & 434 OF 2016

IN THE MATTER OF AN APPLICATIONS FOR BAILPURSUANT
TO SECTIONS 42 (6) OF THE CONSTITUTION & SECTION 6
OF THE BAIL ACT (CH.NO.340)

BETWEEN

BELDEN YAMSAN, JASON AMUK, STEELSON JOHN
Applicant/Defendant

AND

THE STATE
Respondent

Kokopo: Lenalia, J
2016: 14^th&31^st October

PRACTICE & PROCEDURE– Applications for bail – Applicants in custody after being suspected of committing the crime of wilful murder and were arrested.

PRACTICE & PROCEDURE – Application for bail – No exceptional circumstances shown to warrant bail being granted – Applicants must go through committal processes while in custody – Relevant principles considered – Applications refused – More suspects are still to be arrested and police investigations is still continuing – Situation around the area where the crime was committed is still tense – Bail refused.

Cases Cited

Charley Posanu & David Koyama-v-The State (1.5.09) SCAPP.Nos.2 &3 of 2009
Malaki Kongo & Joe Akusi v The State (1996) N1544
Paul Kasi v The State (22.12.1999) MP. No.714 of 1999
Paul Guan v Independent State of PNG (6.1.2009) N3576
Re Heramn Kagl Diawo [1980] PNGLR 148
Re Fred Keating [1983] PNGLR 133
The State v Peter Kakam & Others [1984] PNGLR 99

Counsel:

Mr. N. M. Motuwe, for the Applicants
Mr. L. J. Rangan, for the Respondent

31^st October, 2016

1. LENALIA J: The three applicants are charged with one count of willful murder pursuant to s.299 of the Criminal Code. The offence took place at Rabaul town on 14^thAugust, 2016.

2. It is alleged by the Respondent that, the three applicants were amongst a group of persons who attacked the deceased Jeffery Pasi at about 6.30am on the above date. They say, there was an earlier incident were the deceased and Raymond Huasi had an argument and on that morning the victim drove his vehicle and when he came across Raymond the deceased wanted to bump him with the vehicle he drove.

3. Due to this, those whose residents around the Kaivuna Hotel area formed up and attacked the deceased with bush-knives. He was severely injured and taken to Nonga General Hospital. On arrival, the deceased was pronounced dead. An earlier co-accused Ritchie Huasi on an application for bail was granted bail by this Court because, he is a juvenile and he had to sit for his Grade 10 exams at Vunsbosco Agro Technical High School. He was granted bail on 27^th September 2016. (See Ref CR (AP) NO.378 OF 2016).

Counsels’ Submissions

4. Mr. Motuwe of counsel for the applicants argued that, his clients have the right to be given bail as Constitutional guarantees by s.42 (6). Counsel briefly referred to the facts of this case saying the three suspects are charged with wilful murder but they are only suspects and others who were involved in the killing of the deceased of this case are still at large. Counsel submitted that, because the applicants have not been committed, they are entitled to bail as guaranteed by the Constitution. Counsel based his argument on the ruling in the case of Re Fred Keating v The State [1883] PNGLR 133 for the proposition that, this court has discretion to grant or refuse bail on the instant application.

5. Mr. Rangan, counsel representing the Respondent objected to this application arguing that the crime for which the applicants have been charged is very serious containing elements of serious assault. Counsel urged the Court to refuse this application due to the nature and circumstances of the killing involving very serious collaboration with others who are still at large.

6. Counsel argued that, the interest of justice does not require the court to consider this application in favour of these applicants. (See Paul Kasi v The State (22.12.1999) MP. No.714 of 1999). Counsel’s view is that, the case involved serious assault and under s.9 (1) (a) of the Act and other consequences which I will refer to later. Counsel argued that unlike in the application of Ritchie Huai, the three applicants should not be considered for bail.

7. Counsel argued against one of the proposed guarantors Wallace Sao who titled himself as a Catechist of the Anglican Church here in East New Britain. He argued referring to a hand written letter to the office of the Public Prosecutor in Kokopo by Fr. Rodney Pawa who said, the proposed guarantor is not a Catechist in the Anglican Church.

Application of Law

8. The court has read the applicant’s affidavit and those of his two guarantors. Section 42(6) of the Constitution and Sections 4 and 6 of the Bail Act, gives the court discretion to either grant or refuse bail to the applicants. Grant or refusal of bail is discretionary after consideration of all relevant factors in s.9(1)of the Bail Act. The applicants are charged with the offence of wilful murder consisting of serious assault. Pursuant to the above section, the court cannot refuse bail unless this Court is satisfied on reasonable grounds as to one or more of the considerations listed in the section.

9. I set out considerations which may operate against grant of bail on these applications. They include factors defined in s.9 (1)such as in the following Subsections:
(a) likelihood of non appearance if granted bail,
(c)(i) the crime consisted of serious assault,
(ii) threat of violence either to the applicants,
(d) likelihood of committing other indictable offences if they are not remanded,
(e) the situation is still tense,
(f) because, the killing involved distant related family members, witness may
be interfered with.

10. This provision sets out the circumstances under which the Court may grant or refused bail. Case law authorities say that, even where considerations against an application are made out, the court has discretion to grant bail: Re Herman Kagl Diawo [1980] PNGLR 148, Re Fred Keating [1983] PNGLR 133, or Charley Posanu & David Koyama-v-The State (1.5.09) SCAPP.Nos.2 &3 of 2009).

11. The charge laid against the three applicants is serious. The applicants have rightly come to this Court because s.4 of the Bail Act states that only the National or Supreme Court can hear applications for murder, wilful murder or crimes that are punishable by death. At this stage, this Court must consider if serious assault was applied to take the life away from the deceased by those perpetrators.

12. In considering whether to grant bail or not, the court must take into account submission by the lawyer for the Respondent who submitted that there is still investigation into the killing and it is possible that police will lay further charges after accomplices are arrested. The court takes into account the fact that the action taken by the suspects on these applications and their co-accused terrorized the general public and the surrounding community where the killing took place.

13. According to the letter of the investigating officer, Detective Senior Constable Paul Bonnio dated 10^th October 2016, a number of factors have been submitted for the Court to consider. First that, the killing of the victim was carried out by a large group of people who have not been arrested. Secondly, suspects attacked the victim using, offensive weapons like stones, sticks and bush-knives.

14. The victim’s vehicle was burned and a number of houses along the water-front of Islands compound and along the Malaguna Road opposite Hamamas Hotel were burnt to ashes. Relatives of the deceased attacked innocent people near the old Rabaul market. The investigating officer says that, the situation in town is still tense and it would not be safe to release the three applicants. Relatives of the deceased have even fronted up at the Rabaul Police Station and told police that, they do not want relatives of the accused or suspects to come to them.

15. In my opinion, such actions created fear to those affected and the general public and particularly those around the Hamamas Hotel and surrounding areas. I take these considerations very seriously. A part from that, if there were more charges to be laid, it is likely, either arson of wilful damage of the victim’s vehicle. There is no evidence before that court or even suggestions as to what charges they should be. The court is not entitled to know too at this stage as to what charges they should be. Surface it to say, the offence committed by the applicants is serious and the issue is should they be released on bail or still be remanded in custody until all investigations have been completed.

16. The next issue is, if there are more persons to be charged, it may be inferred that, if the applicants are released on bail, they may interfere with either witnesses or other persons who may have been involved on the killing of the deceased of this case.

17. The next issue is, unless the Court is satisfied about the status of the proposed guarantor whom the Respondent counsel objects to, the Court cannot approve or nominate the proposed guarantor Mr. Wallace Sao to be a guarantor. He may not be a genuine person as he addressed or titled himself a Catechist of the Anglican Church in East New Britain. According to the letter to the Officer in Charge of the Public Prosecutor on the ground by Fr. Rodney Pawa, the proposed guarantor is not a Catechist of the Church.

18. The other issue is that, two of the applicants, Belden Yamsan and Jason Amuk come from Jimangu and Parimber villages in Wewak, East Sepik Province. Applicant Stilson John comes from Suir village, Tinpuzts District in the Autonomous Region of Bougainville (AROB). What guaranties are there before the Court that if these applicants are released on bail, they will comply with any bail conditions until their cases are dealt with?

19. As earlier noted, one of the proposed guarantors may not be a genuine one. This court is of the view that there may be some apprehension of bias and conflict of interest involved. Catechist Wallace Seo in his affidavit does not give his full residential address or even the village and Province of his origin. The Court cannot even accept the affidavit of the other proposed guarantor Mr. Koni Jongo. He does not give his full residential address. All he says is he comes from Rabaul town.

20. Both proposed guarantor cannot be ‘phantoms’ to be everywhere at once or ghosts in spirit form to be around all corners of Rabaul town at the same time. It is established law that 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 (6.1.2009) N3576, or Charles Posanu and David Koyama v The State (1.5.09) SCAPP.Nos.2 & 3 of 2009). In addition to the principles stated in the above cases, on these applications, the Court notes that, two guarantors do not have fixed addresses and they do not have names of their places of origin like their village, Districts and Provinces.

21. For the above reasons, this Court is satisfied that the applicants have not 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. It is established law that where the interest of justice is such that an application for bail should not be considered, the court should refuse bail.

22. It is for the interest of justice based on the foregoing considerations that the Court is of the view that, the applicants ought to be remanded in custody until all investigations are completed. If released, there is a possibility that they will not attend to committal processes. The interest of justice factor is overwhelming and paramount consideration which I consider in favour of the objection.

23. To ensure the police fully investigate the killing and arrest those responsible, it would be safe to keep the applicants in custody so that they do not release any information to likely co-offenders who might try to deter or withhold information about the killing. The brief facts show that the victim was seriously assaulted which fact qualifies under s.9(1) (c)(i) of the Bail Act, that the assault was so serious It is my view that the applicants should be kept in custody until the committal processes are completed. Bail is refused.
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Neserawa Messey Motuwe Lawyers : Lawyer for the Applicants
The Public Prosecutor : Lawyer for the Respondent