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Ewam v State [2017] PGNC 81; N6728 (24 April 2017)

N6728

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 29 & 65 OF 2017

LONCIA EWAM & STEPHANIE KAUKEN
Applicant

V

THE STATE
Respondent

Kimbe: Miviri AJ
2017: 24^th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail Act - Bail application –Whether in interest of justice to refuse bail –– students at Kimbe High school-substantial grounds meaning of- satisfaction on reasonable grounds meaning in law not contrary S9 –Clinic book evidence

Cases:

Re-Fred Keating [1988] PNGLR 133,

Warun v The State [1988-89] PNGLR 327 (21 August 1989)

Kasi v The State [1999] PNGLR 566 (23 December 1999)

Counsel:

A. Bray, for the State
B Popeu, for the Defendant

RULING ON BAIL APPLICATION

24^thApril, 2017

1. MIVIRI AJ: Loncia Ewam you are 18 years old from Honpato Kabwum Morobe Province, and Stephanie Kauken you are 19 years old from Numbunge Wosera in East Sepik Province. You are both applying for bail pursuant to section 6 of the Bail Act and section 42 (6) of the Constitution. You are both remanded in custody at Lakiemata Corrective Institution since 6^th February 2017 after you were both charged on information dated the 6^th February 2017 for wilful murder of one Livai Moses contrary to section 299 of the Criminal Code. You both allegedly identified the deceased who was chased and stabbed by your co-accused and he died as result of the stab wound at Kimbe General Hospital.
   
2. Your affidavit in support filed attached as Annexure “A” the information laid by Police informant Aloysius Baruku particulars of the charge I have set out above contrary to section299 of the Criminal Code Act.
   
3. At the back of the information are facts to the charge that state that you were at Kimbe market, you saw the deceased coming to where you were with three others and you said, “Aya Livai Kam”. One of your co-accused Ben Ken Wangu who was with you chased and stabbed the deceased Livai Moses with a scissors that he had taken off the market stall within. Livai Moses was taken to the hospital and died later that night.
   
4. You Loncia Ewam filed this application since the 7^th March 2017 and you Stephanie Kauken since 14^th February 2017 applying for bail under section 42 (6) of the Constitution and section 6 of the Bail Act.
   
5. The combined effect of section 42 (6) of the Constitution and section 6 of the Bail Act are that you are entitled to bail at all times along the criminal justice process:
   

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

(7) Where a person to whom Subsection (6) applies is refused bail–

(a) the court or person refusing bail shall, on request by the person concerned or his representative, state in writing the reason for the refusal; and

(b) the person or his representative may apply to the Supreme Court or the National Court in a summary manner for his release.

6. This section is self-executing in that because you both are charged with section 299 of the Criminal Code with wilful murder this section does not apply in your case. It is not the basis that you come by to seek bail, and this view is held by the case of Re-Fred Keating [1988] PNGLR 133 where these questions were held not applicable here and consequently that is the end of the matter by virtue of section 4 of the Bail Act. Which is appropriate and the basis upon which your application will be considered with is section 9 Bail Act.
   
7. Loncia Ewam you were arrested for wilful murder and detained by Police since 6^th February 2017. You are making this application for bail formally in this court almost two months one week in custody. You Stephanie Kauken were arrested, charged and detained since 6^th February 2017. You have been in custody for 2 months 2 weeks 2 days.
   
8. Section 4 is specific “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 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.”

Law applied to Facts here

9. The meaning of this section given the facts here for you both as the applicants is that you are charged with wilful Murder under section 299 of the Code which has the death penalty as its maximum penalty. It means that you shall not be given bail except only by the National court or the Supreme Court: Re-Fred Keating [1988] PNGLR 133, and categorizes your situation as category A where the interest of Justice is not applicable. I have already in line with section 4 and Re Fred Keating (supra) held that interest of Justice is not applicable here.
   
10. Re-Fred Keating (supra), states, “before the discretion to refuse bail arises the court has to be satisfied that there are substantial grounds for believing that one or more of the matter described in section 9 (1)(a) to (g) are present. It is the existence of substantial grounds for the belief not the belief itself which is the crucial factor: see Rv. Slough Justices; Ex Parte Duncan and Another [1982] 75 Cr. App. R 384”
    
11. So the test is to see your case for application to bail against the backdrop of section 9 (1) (a) to (g) Bail Act. Loncia Ewam you apply to be released on K1000 bail and that you depose to and nominate Francisca Mathew ward 8 women’s representative in Mosa LLG who also resides at Sarakolok, She pledges K 500 as surety for your bail, and Samuel Saule peace and good order committee Mosa LLG as your guarantors whilst on bail. He pledges the sum of K500 as surety towards your bail.
    

Clinic Book unclear Medical condition Loncia Ewam

12. You also attach your clinic book with a supposed medical condition that is not clear to me. I am not able to conclusively for the purposes of this bail application make a finding as to what your medical condition is based on. It is not the same as a medical report that is prepared by a qualified person such as a doctor who gives an opinion as to what are the causes underlying the symptoms found. Here the writing and what meaning is attached can only be read by a medical personal as that is what it is intended for upon entry at a health facility as was your case here. It was the writing of a health personal who saw you given to you that you seek to rely on. The court is not affluent to decipher medical terms and writing intended for medical personnel. Consequently I am unable to be satisfied on reasonable grounds that you are suffering from TB as you state as a basis for this application.
    
13. To be satisfied on reasonable grounds and to be relied on in your case that you are suffering from TB, there must be at least in every day language the subject of a proper medical report by a medical doctor settling that you have TB and are currently undergoing treatment particulars of which are given. I am firm here because of Section sch. 1.5(2) of the Constitution says that “All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning”. The clinic book to be primed with the definition reasonable grounds does not envisage a fair and liberal meaning.
    
14. Although technical is not prescribed per section 9 (2) Bail Act, it is still advisable in proper affidavit form in accordance with section 37 Evidence Act to get scientific examination and such material before court in support of your application in the form of an affidavit by the doctor. It is not the form, the affidavit, but the substance and contents of the document that must be reasonable enough for a lay person such as the court to understand and to make an appropriate determination and ruling. It would be more convincing as opposed to a clinic book with inscription therein that cannot be interpreted by the court as to its meaning in layman’s language.
    
15. You have attached this book page as an annexure sworn material in support of your application. You are not the author of that writing in that clinic book nor are you trained in medical science. The court is not assisted as it is not familiar with medicine and the science thereof. It would need a medical person to bring to its understanding the material in the clinic book. Simply put as a layman I do not know what the clinic book is on about as to your health condition.
    
16. “An affidavit by a medical practitioner describing a medical examination of a person or body should conform with the Evidence Act, s 37(1). These affidavits need to be carefully prepared because under s 37(2) of that Act the court has discretion to require the presence of the medical practitioner where the justice of the case warrants it. I note in passing that the standard of medical reports coming before the courts has been uneven, and the quality of reports sometimes leaves much to be desired. Warun v The State [1988-89] PNGLR 327 (21 August 1989)”
    
17. Reasonable grounds set out under section 9 (1) does not mean a clinic book that cannot be understood by the court as to what is contended by the applicant. Reasonable is defined, sensible rational judicious practical realistic sound even handed equitable. Judicious is defined as sensible, cautious, thoughtful, shrewd, astute, prude, wise.
    
18. So is it sensible judicious rational practical realistic to put a clinic book that the court cannot read to assist your cause for bail. I think not and therefore am not satisfied on reasonable grounds to accept that ground as a reason to allow you bail. The court will not consider material in your favour that cannot be understood by the court. This is so of the clinic book that you attach to your affidavit in support of your bail application.
    
19. This is not a criminal trial standard of proof because the language used by the section is reasonable grounds upon which it may consider as to one or more of the grounds there under. Bail under the Bail Act section 1 is defined, “means approval, whether or not subject to conditions, for the release of a person from custody”. Section 1 also defines bail authority as, “means a person or court empowered or required under this Act or any other law to grant Bail”. “Bail obligation” in relation to a person granted bail, means the obligations imposed on the person under section 17” Section 17 imposes upon the successful applicant of bail and person who is now on bail to be observant and adhere to the conditions appearing before the court on the substantive criminal matter then before the court. Here Court is defined under section 1, “court means any court, other than a village court, and includes a Judge or magistrate of any court, other than of a village court”.
    

In custody process of law follow out bail

20. By process of the criminal law you both are in custody and it is also by process of law that you be processed in your application to get out on bail. There is no lowering of the standard below the law to let you out on bail. This is clear from the foregone definitions under section 1 of the Bail Act. The approval to release from custody is by no other person other than a bail authority who is a person or court empowered or required under the Bail Act or any other which so empowers. It is by law and by person so empowered including court. The National court is set up under the Constitution section 163 and the magisterial service under section 173 also of the Constitution. All constitutional creatures meaning what they discharge as their duties are by law. In your case section 4 of the Bail Act is the relevant and applicable law here.
    
21. So for the purposes of Bail these are the process of law to be followed under section 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;

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

(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;

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

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

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

(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;

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;

(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;

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

(2) In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.

(3) For the purposes of Subsection (1) (i), “narcotic drug” has the meaning given to it in the Customs Act 1951.

Issue

22. Am I as an authority of bail satisfied on reasonable grounds that one or more of the grounds under section 9 (1) has been made out for you both to be refused bail?
    

Facts on application

23. You Loncia Ewam state that in the event of bail being granted you will be resident at Sarakolok section 4 Block 861 Mosa Local level government Kimbe. And the persons who are your nominated guarantors are, Francisca Mathew also of Sarakolok who is the ward 8 women’s representative in Mosa LLG. She knows you and is willing to be your guarantor appreciating the duties that are called upon her to become one. She pledges K500 surety as guarantor if the court grants. She says you will reside at Sarakolok with your family. Your second guarantor nominated is Samuel Saule who has also filed an affidavit that he lives at Sarakolok and is one of the peace and good order Committee of ward 8 Mosa LLG. He knows you well and you live at the same area Sarakolok. He has been explained what his duties as a guarantor will be and he is prepared to ensure that. He also states that in the event of bail being granted you will reside with your family at Sarakolok.
    
24. You Stephanie Kauken say that you are 19 years old resident at section 21 Bahtbaht settlement since you were born. You are prepared to pay K800 cash bail and nominate Solomon Wapik also resident at section 21 Bahtbaht settlement for over 35 years. He is a reserve Policeman and knows the duties of being a guarantor. That he must ensure the appearance of defendant/applicant at trial. That the applicant will not interfere with witnesses. And that the applicant is of good behaviour, keeps the peace and turns up when the court requires him to. He says he will ensure that the applicant abides by the terms and conditions imposed by the court. He is willing to pledge the sum of K200 as surety as guarantor and gives his telephone number as 70090530. He knows that the applicant is a student at Kimbe Secondary school.
    
25. The second guarantor proposed is Nelson Kapasi a senior static guard who resides at section 21 First Street for over 30 years, employed with Orion Security Company who is pledging as guarantee K200 pledge.
    
26. His telephone number is the same as Solomon Wapik as 70090530. Whether this is by coincidence or by manufacture it is not clear but the fact of the matter is individual person of reputable standing and influence in the community where a bail applicant comes from must be persons who are independently established in life so that there is real guarantee of the applicant whilst on bail. And the guarantor is with means to ensure appearance of the applicant he cannot use the telephone or mobile of another or equipment of another to secure a court obligation a guarantor for a defendant charged with wilful murder an offence with death as penalty, and which is specifically addressed by section 4 of the Bail Act. It is not a light matter of everyday occurrence at all in bail applications. Lester v The State [2001] PGNC 148; N2044 (22 January 2001) see also Kasi v The State (below).
    
27. Surety is not K200 in a wilful murder case where the penalty of death is inscribed and where the Bail Act section 4 specifically deals with. Serious pledge to see the genuineness of your pledge, that you are not only a person of reputable standing, status and influence in the community but you are prepared to back it up with serious and genuine pledge regardless to reflect your genuineness in the matter. You stand to lose a lot in the matter and that is in and underlying your pledge to the court. Asking for bail using guarantors is not a mere formality but a matter of grave concern and seriousness in view of the charges criminally that are laid against the applicant against the backdrop of the community and society to see those who are accused of serious criminal charges to be properly secured in custody and dealt with according to law. Kasi v The State [1999] PNGLR 566 (23 December 1999) Lester v The State (supra)
    

Letter Kimbe Secondary School grade 10 and 11.

28. In your affidavit Loncia Ewam you annexed a letter “B” from the Principal of Kimbe Secondary School confirming that you are a bona fide student of the school this year 2017 and you are currently registered doing grade 11C and the letter confirms.
    
29. This is reasonable that you are in grade 11 this year 2017 at the school and currently registered. The letter has the Kimbe Secondary school logo on it and the words in bold Kimbe Secondary at the top. It is followed by the address of the school P.O. Box number 468 Kimbe including the telephone 983 5283 and facsimile number 983 5702. There is also an email address of the school kimbesecsch@gmail.com.
    
30. The letter is dated the 9^th February 2017 and the action officer is Principal G Areng it is signed and sealed at the end to that effect. This is readable in everyday language and can be understood by the Court as to where you would be found if you are not at home during the day school hours.
    
31. Stephanie Kauken also has annexure “C” same letter from Kimbe Secondary school but the subject is Stephanie Kauken grade 10F 2017 is also similar in all respects to that of Loncia Ewam described above. It is also signed sealed with the school seal by Principal George Areng with the seal of the Kimbe Secondary School in 2017. There is in the report a reference to ‘, she is a current registered student doing grade 11”. Is she a grade 10 or 11 student? It is important to get this right so as to determine where the applicant will be if released on bail being at school is important given the time before which the matter comes to trial proper.
    

Principal Kimbe Secondary Guarantor nominated.

32. In the light of this fact the court is of the view and holds that the Principal Kimbe Secondary school George Areng can be a guarantor for you both for your bail here. He has attested as to your current situation as students no doubt he will be in a position of authority to ensure guarantee of your appearance in court where he is as principal. He will be more a person of repute and influence who can ensure your continued observation of your bail conditions in particular you appear in court to answer and maintain conditions imposed should bail be granted. And the court is of the view that you both obtain affidavit from him as to these so that it is properly on the record of court to consider your bail.
    

Guarantor’s independent person of standing repute influence

33. The court will not accept nomination of Nelson Kapasi as guarantor in your case Stephanie Kauken because compared to George Areng, he is not a person of influence and repute or standing in the community. Adherence to bail especially in a wilful murder case where the penalty prescribed is the death penalty is a very serious matter where personal friends or wantoks let alone relatives are to be considered as guarantors in a bail application. In this case Geoffrey Vaki Deputy Police Commissioner of Police and his brother Philip Vaki who was charged with wilful murder attempted murder and robbery of half a million Kina at Nadzap airport is clear example that even where bail was granted to Philip Vaki on the guarantee of Geoffrey Vaki his big brother, Philip did not appear on trial and warrant was issued by the court to Geoffrey Vaki who executed the warrant to bring Philip Vaki to trial.
    
34. Stephanie Kauken you are from Wosera East Sepik including Nelson Kapasi and Solomon Warpik. Both from Sarkin village Maprik East Sepik Province. Solomon Warpik is in a way influential as he is a supervisor at the Kimbe Market and also a reserve police constable resident at same settlement as yourself and can be there to ensure your attendance in court. He is a good guarantor as opposed to Nelson Kapasi.
    
35. The court does not view and accept the nomination of Nelson Kapasi as guarantor in your case and the reasons are set out above.
    

Affidavit of Ben Vitus

36. A witness one Ben Vitus has sworn and filed an affidavit that he heard a female voice talk of sending Loncia to Wewak so that there will be no witnesses and the defendant will come out free of the charge here.
    
37. This is by itself just talk whether it is going to be made out or not is another matter. Strictly there has been no interference with witness up to this application. Ben Vitus is a relative of the deceased in this allegation against the applicants.
    
38. I will not hold that against the applicant Loncia Ewam in her application for bail here. It does not bear upon this application in any way against you Loncia Ewam.
    

Detective First Constable Aloysius Baruku

39. Arresting officer Detective First Constable Aloysius Baruku has filed an affidavit dated the 20^th April 2017 where he states that Stephanie Kauken is resident at section 21 settlement. That he is still conducting his investigations and the deceased relatives are still frustrated over the loss of their son.
    
40. He said he is conducting the investigations but why have the defendant/ applicants being remanded in custody charged already with wilful murder if the investigations are still being conducted could the defendant/applicants be in custody as now. And who are the deceased relatives who are frustrated and angry for the loss of their son brutally stabbed as being identified by accused as Livai.
    
41. The guarantors each having lived at the settlement where you the applicants are do not even for one moment speak as the situation within the community as to the wilful murder and how the community sees the release of you both into the community on bail.
    
42. For the foregoing reasons I will not grant bail to you both until you both have your guarantors settled as I have pointed out here.
    
    • (a) Application refused
    • (b) Defendant remanded
      

Orders Accordingly.

____________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant