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Poki v State [2018] PGNC 160; N7244 (25 April 2018)

N7244

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 737 OF 2017

JEROME POKI

V

THE STATE
Wewak: Gora, AJ
2018: 29^th February,
25^rd April

CRIMINAL LAW- Application for bail- charge of willful murder, Section 299(1) Criminal Code- Grounds of application- Bail not guaranteed under Section 42 (6) of the Constitution- Section 4 Bail Act- Jurisdiction only on National Court and Supreme Court- Section 9 considerations apply- Bail discretionary- Onus on applicant to show cause why he should be allowed bail.

CRIMINAL LAW- Prolonged detention- No adverse effect on health and defense of case- family welfare and employment are not exceptional circumstances but are natural consequences of being charged and detained.

CRIMINAL LAW- Over crowded at remand facility pausing health risk of contracting disease- 0nus on applicant to show some form of evidence to substantiate health risks- Absence of evidence on claim of health risk a mere assertion.

Cases Cited
Guant v The Independent State of Papua New Guinea (2009) PGNC 14; N3576
Lakore v The State (2011) PGNC 18: N 4235
Malaki Kongo & Joe Akusi v The State (1996) N1544
Michael Aia & Michael Manemba v The State (2001) N2124
Re: Fred Keating (1976) PNGLR 133
Re: Kou Kua (1984) PNGLR 22

Counsel
Paul Tusais, for the State
Darrel Sakumai, for the Applicant/Accused

RULING ON APPLICATION FOR BAIL

25^th April, 2018

1. GORA AJ: INTRODUCTION: This is an application for bail by the applicant made pursuant to the Sections 4 (1) and 6 of Bail Act 1977. Application is made by way of an amended Notice of Motion and an amended Application for Bail both filed on the 23^rd of February 2018 respectively. The original Notice of Motion and Application for Bail with supporting affidavits were filed on the 11^th September 2017.

State objects to the application.

Applicant is charged with one count of willful murder of his elder brother George Poki and currently is in remand at Boram jail awaiting his trial. The charge is pursuant to Section 299 (1) of the Criminal Code.

FACTS

2. In the case of Lakore v The State (2011) PGNC 18: N4235, the court stated that ‘’to properly consider a Bail application it is necessary to provide evidence of the relevant facts and circumstances of the offence in particular the acts or omissions that constitute the offence.’’

I therefore state the facts as disclosed in annexure “B” of the applicants own affidavit in support of the application dated 28^th July 2017.

It is alleged that on Saturday 10^th December 2017 at about 1.16am the accused was at Kua settlement Wewak. During that time the deceased George Poki (his elder brother) came home after drinking with his friends and he picked up an argument with their father Clement Poki.

It is alleged the deceased then fought with their father and stabbed him on his left hand and leg with a bush knife. At that instance deceased’s daughter KEZIHA screamed and stopped her father from attacking her grandfather.

Then suddenly the applicant armed with a meter long bush knife came from the back and chopped the deceased (his brother) on his right hand palm causing the deceased to drop the bush knife he was holding.

The applicant then swung the bush knife the second time and chopped the deceased twice on his legs and left side ribs.

It is further alleged that deceased was in great pain and when he lifted his hand up the applicant swung his bush knife again the third time and chopped the deceased on his left hand. At that instance, deceased’s daughter screamed at her uncle (applicant) to stop attacking her father. But the applicant took no heed and continued cutting the deceased on his head until he killed him to death.

The applicant escaped after killing his elder brother and later surrendered himself to the police.

GROUNDS FOR APPLICATION

3. Grounds for the application are contained in paragraph 4 of the applicant’s own affidavit sworn on the 28^th of July 2017 and filed on the 11^th of September 2017. The applicant states in paragraph 4 that “although the alleged acts constituting the offence consist of assault, I wish to be granted bail on the grounds that;

(a) The allegations against me will be defended in court.
(b) Police investigations have been completed and I have been committed to stand trial in the National Court.
(c) My prolong detention in custody may deprive my wife and 3 children of my help and earnings as an Elementary school teacher or affect my employment.
(d) There is shortage of food and lack of sleeping places at the Boram Corrective Services and such congested place is likely to help spread of disease such as tuberculosis, dysentery, diarrhea and airborne diseases and I am in fear of my health.’’

I will deliberate on these grounds later in the course of my judgment.

GROUNDS OF OBJECTION BY STATE

4. State raises 4 main reasons for objecting to bail being granted.

(a) Accused is charged with willful murder and his right to bail under Section 42 (6) of the Constitution is not guaranteed.
(b) The alleged act constituting the offence consists of serious assaults.
(c) There is likelihood of threats of violence to deceased’s wife and children if granted bail.
(d) There is likelihood of interference with state witnesses of granted bail.

ISSUES

5. Primary issue is whether bail should be granted?

Supplementary issues arising from the grounds for the application are:

(a) Whether applicant has a defense which would justify granting of bail to enable him adequately prepare his defense.
(b) Whether applicant’s committal to stand trial which is pending, is a ground for granting of bail.
(c) Whether applicant’s prolonged detention deprives the welfare of his wife and children and also affects his employment and therefore should be granted bail.
(d) Whether shortage of food and lack of sufficient space at Boram Correction Services justify granting of bail.
(e) Whether the applicant is likely to contract disease due to congested place at Boram jail.
(f) Whether there is likely-hood of threats of violence against the wife and children of the deceased if allowed bail.
(g) Whether there is likely-hood of interference with witnesses, particularly state witnesses if allowed bail.

THE LAW

6. The relevant laws in respect of bail in this jurisdiction are Sections 42 (6) of the Constitution and the Bail Act 1977. There are also abundant case laws pronounced by the courts relating to bail and more particularly for those charged with the offence of willful murder.

7. Section 42 (6) of the Constitution is in the following terms: “ 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 requires.”

8. However Section 4 of the Act stipulates that “A person charged with willful Murder, murder or of an offence punishable by death shall not be granted bail except by the National Court or the Supreme Court.”

9. Section 6 (1) of the Bail Act then makes a general bail provision which stipulates that 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. For willful murder cases, application for bail is to be made to the National Court or the Supreme Court.

SUBMISSIONS OF PARTIES

Counsel for the Applicant

10. Counsel for the applicant made the following submissions:

(a) That if applicant is allowed bail he would reside with his wife’s people at Hawain village and therefore no likelihood of interference with state witnesses.
(b) That two guarantors have filed affidavits in support of the application for bail who would ensure applicant does not abscond bail.
(c) That State has filed affidavits objecting to bail. The first affidavit is that of the deceased’s wife Georgina Poki. Second affidavit is that of Rosemary Kinyau, a detective Sergeant who arrested the applicant after the commission of the alleged offence. Counsel submits that Georgina’s affidavit deposing to threats issued to her and her children by the accused via a mobile phone is not supported by evidence of the mobile number used by the accused and the actual text message sent. He submits these allegations are suspicious and therefore not true.
(d) That there is spacing problem at the CS remand facilities and it is congested thus posing threats of spread of diseases such as tuberculosis, dysentery, diarrhea and airborne diseases amongst the remands which is against human rights. He submits prolonged detention may affect the health of the accused and these are exceptional circumstances and therefore the applicant should be allowed bail.

Counsel for the State

11. In response counsel for the state made the following submissions:

(a) That under Section 42 (6) of the Constitution bail is not guaranteed to the applicant who is charged for willful murder, though the court is not precluded from granting bail.
(b) That the applicant has raised a defense of self defense, that is defense of their father, meaning that charge may not be generally denied
(c) That the acts constituting the offence consist of serious assaults. He submits that the Statement of Facts show that the applicant first came to the defense of their father but then subsequently continued to and repeatedly chopped the deceased with a bush knife even though the deceased had already dropped his knife to the ground.
(d) That the incident occurred within the family circles and threats of violence have been issued by the applicant via mobile text message to the deceased’s widow and children. This is deposed to in the affidavit of the deceased’s wife Georgina Poki sworn and filed on the 19^th October 2017 and a further affidavit sworn and filed on the 27^th February 2018. Therefore there is likelihood of further threats of violence if applicant is allowed bail.
(e) That because the incident occurred within the family circle there is likelihood of interference with witnesses, particularly state witnesses. The whole family resides at Kreer compound including deceased’s wife and children. Police officer Detective Sergeant Rosemary Kinyau who arrested the applicant initially and investigated the matter has deposed to that effect in her affidavit sworn on the 13^th October 2017 and filed on the 16^th October 2017.
(f) That if bail is allowed then bail surety should be increased to K2000 because current bail amount of K600 does not deter accused persons absconding bail. Guarantors surety should also increase to K1000.

APPLICATION OF THE LAW

12. Applicant has been detained on the charge of willful murder. His Application for bail is made under Sections 4 and 6 of Bail Act respectively.

13. The right to make an application for bail in my view emanates generally from constitutional principles enshrined in Section 37 of the Constitution. Subsection (1) stipulates that: every person has the right to the full protection of the law and that right is fully available especially to persons in custody or charged with an offence. This in my view entails the right to bail.

14. Subsection (4) provides that a person charged with an offence shall be presumed innocent until proved guilty according to law. This in my view also entails the right to bail.

15. The right to bail however is specifically provided for by Section 42 (6) of the Constitution (liberty of the person) which state that: a person arrested or detained for an offence (other than treason or willful murder as defined by Act of Parliament) is entitled to bail at all times from arrest to detention to acquittal or conviction unless the interest of justice otherwise require.

16. Section 42 (6) of the Constitution however does not use the term ‘’right to bail’’ instead it uses the term “entitled to bail”. These two terms appear to have both objective and subjective meanings respectively. In my view the term entitled to bail connotes the notion that bail is not exclusively a matter of right and is not automatically available but should be readily available with exercise of discretion. In the Re Fred Keating case (1976) PNGLR 133 Kapi DCJ (as he then was) made that point clear when deliberating on the Bail Act. He stated: ‘’However by reading the whole Act and particularly Part II of the Act, the spirit of these provisions is to grant bail more readily, this is not the same as saying, bail should be granted as a matter of right.”

17. However under Section 42 (6) of the Constitution bail is not readily available to persons detained on the charged of willful murder. Nevertheless the court is not precluded from granting bail within the meaning of Section 4 (1) of the Bail Act which states that a person charged with willful murder shall not be granted bail except by the National Court or the Supreme Court. Meaning that only the National Court or the Supreme Court can grant bail to persons charged with willful Murder.

18. The Bail Act 1977 therefore gives effect to Section 42 (6) of the Constitution and sets out the guidelines for consideration of bail including bail for those charged with Willful Murder.

19. Section 9 (1) of the Bail Act in particular provides that:

“Where a bail authority is considering the question of granting or refusing bail, 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 interfere with witnesses or the person who instituted the proceeding; (e) that 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; (f) 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 in breach of parole.’’

20. It was previously thought that Section 9 considerations did not apply to treason and willful murder cases. However since Section 4 of the Bail Act is silent on what criteria should be applied to applications for bail on charges of treason and willful murder, it is now accepted law that Section 9 considerations apply.

21. This point was clarified by the late Chief Justice Sir Buri Kidu in the Re Fred Keating case (supra) where he stated at page 136;

‘’ ...a person charged with willful murder can only be granted bail by the National 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 willful murder cases are determined by the National Court or the Supreme Court. It is therefore clear that the considerations set out in Section 9 (1) apply, and since Section 42 (6) does not apply to willful murder cases the ‘interest of justice’ are not relevant to such cases. I agree with my brothers Kapi and Andrew that in willful murder and treason cases only those considerations set out in section 9 (1) of the Act are relevant and no others including ‘exceptional circumstances’. I agree with Andrew J that in willful murder cases bail authorities have discretions.’’

22. It appears from this decision that the “Exceptional Circumstances’’ criteria does not apply to applications for bail in willful murder cases but only Section 9 (1) considerations.

23. In the present case the applicant used a bush knife to chop his elder brother all over his body several times causing his death. The alleged offence constituted acts of serious assault with application of violence using an offensive weapon namely a bush knife thus causing death of the victim.

24. I am therefore satisfied on reasonable grounds that more than one ‘considerations’ under Section 9(1) of the Bail Act exists and therefore does not warrant granting of bail to the applicant.

25. However the provisions of Section 9 (1) of the Bail Act, particularly deciding on the question of refusing or granting bail makes it discretionary on the bail authority. Even if one or more of the considerations under Section 9 (1) exists, a bail authority has discretion to either grant or refuse bail.

26. Such discretion extends to persons in detention charged with the offence of willful murder. In Re: Fred Keating case (supra), the Supreme Court by majority decision held that: the grant or refusal of bail pursuant to Section 9 of the Bail Act is discretionary in cases of willful murder and treason. However the Supreme Court further held that once one or more of the considerations in Section 9(1) are proved bail should be refused unless the applicant show cause why his detention in custody is not justified.

27. It is therefore important to understand the significance of this decision of the Supreme Court in relation to the application of Section 9 (1) provisions of the Bail Act particularly for purposes of bail applications in willful murder cases. The essence of this is that once one or more of the considerations in Section 9 (1) are proved bail should be refused unless the applicant show cause why his detention is not justified. This is where discretion is then exercised either to grant or refuse bail.

28. In my view the onus placed on the applicant is an onerous one which he must discharge if he has to succeed with his application for bail. For example in the case of Re Kou Kua (1984) PNGLR 22 the applicant for bail was charged with offence of willful murder of his wife as a result of deliberate stabbing causing death. Reasons for seeking release from custody were;

1. To settle the problem of custody of his small child who had been the subject of a fight between grandparents.
2. The need to retrieve and hand over hidden monies belonging to his village club.

100. Threats to his life by two inmates of the jail.

29. The court held that as the acts constituting the offence consisted of a very serious and grave assault on the deceased with a knife, it fell within Section 9 (1)(c) of the Bail Act 1977, and the onus was on the applicant to show why his custody in detention was not justified. At page 22 of the judgment the late chief Justice Sir Buri Kidu specifically stated that: in the case of a bail application of a person charged with willful Murder if any one or more of the criteria in Section 9 of the Bail Act is or are shown to exist the onus is then on the applicant to show why he or she should be granted bail.

30. The court was of the view that the applicant did not discharge the onus upon him and therefore the application for bail was refused.

31. The test therefore is whether detention is unjustified or whether the applicant has discharged the onus upon him why he should be granted bail.

32. In my view this test has been further extended or broadened in subsequent cases. For instance in the case of Malaki Kongo & Joe Akusi v The State (1996) N1544 his Honor Justice Batari stated amongst other things that:

“Although the provision of Section 9 (1) (c) has been established, there is a discretion in the court to grant bail. The onus is on the applicants to show why their detention in custody is not justified...Besides there is no evidence or suggestion that their prolonged detention is adverse to their health, for instance. Similarly a person detained on willful murder charge, in my view should show cause that his prolonged detention would either prejudice his defense or deny him the opportunity to adequately prepare his defense. He ought also to show cause that his detention would put his social activities and his family welfare, employment, or business engagement in jeopardy.’’

33. Similar views were expressed by her honor the late Justice Davani in the case of Michael Aia & Michael Manemba v The State (2001) N 2124 where at p.3 she stated:

‘’ ...the affidavits filed by the applicants are very brief. They do not depose to matters pertaining to exceptional circumstances, some of which may be that prolong detention is adverse to their defense or that their social activities, family welfare, employment, or business would be in jeopardy’’

34. It is apparent from these decisions that the term ‘’detention is unjustified’’ has been qualified to mean ‘’a prolonged detention having adverse effect.’’

35. Commenting on these decisions his honor Makail AJ (as he then was) in the case of Guant v Independent State of Papua New Guinea (2009) PGNC 14; N3576 stated:

“ Their honors seem to say that prolong detention may be an exceptional ground for bail but also qualify it by also saying that it must have an adverse effect on an applicant like for example,, adverse effect on the defense, health, family welfare, employment or business of an applicant. In other words, I think what their honors are saying is that, prolong detention alone is not a sole determinative factor. An applicant must also establish that due to the prolong detention, he is being denied the opportunity to properly defend himself or prepare his case, or has suffered from ill health and so forth. Unless the applicant establishes an adverse effect of prolong detention, it alone is not a strong factor for a successful bail application.’’

36. Therefore the law in my view, as it appears now in respect of applications for bail in willful murder cases, is that detention becomes unjustified only if it is a prolonged detention which has adverse effect on the applicant’s health, family welfare, social activities, employment, business and so forth. The onus of course is on the applicant to show that his prolong detention has an adverse effect on him.

37. However there appears to be a deviation from this principle. For example in Guant v In dependant State of Papua New Guinea (supra) his honor Makail AJ (as he then was) stated at page 7 that:

‘’ An applicant must establish the adverse effect of prolong detention on him or her but only to the extent that the adverse effect relates to his or her defense of the charge and his or her health. But I do not agree that the adverse effect on the applicants family welfare, employment and business are exceptional grounds for a bail application, for I consider them as natural consequences of one being charged and detained for committing an alleged offence.’’ (emphasis in added in bold)

38. It seems his honor is saying that the principle of ‘’adverse effect’’ is relevant only to matters relating to applicants health or defense. Other considerations are matters deemed to be of natural consequences of being charged and detained.

39. Taking into account these principles of law as they are, I now consider the grounds of this application for bail.

40. The applicants first ground for bail is in the following terms; ‘’the allegations against me will be defended in court.’’ I understand this to mean that he has a defense or defenses to argue at trial. However he has not stated in his affidavit if he is seeking bail for purposes of preparing his defense. He only states that allegations against him will be defended in court. I believe the onus is on him to provide brief some brief particulars of his defense or defenses to the court and to show that such defense is genuine and has merit and therefore require time to adequately prepare his defense outside of his detention in custody. He has to further show that his prolonged detention will adversely affect him in the preparation of his defense. He has not discharged that onus. Therefore in the absence of such evidence I refuse to accept this ground and have it dismissed.

41. The applicant’s second ground for bail is in the following terms: Police investigations have been completed and I have been committed to stand trial. This is a normal procedure leading to committal to stand trial. This ground does not make his detention unjustified. In other words the applicant’s committal to stand trial does not give him a permit to be granted bail. His detention is a natural consequence of being charged of the offence he is alleged to have committed. I therefore dismiss this ground.

42. Applicants third ground for bail is in the following terms: My prolong detention in custody may deprive my wife and 3 children of my help and earnings as an Elementary School Teacher or affect my employment. The onus is on the applicant to show that his prolonged detention would have adverse effect on his family and employment. It is up to him to show to the court some form of evidence to suggest that his family welfare and his employment are being adversely affected by his prolonged detention. For instance, a medical report confirming that his wife and children are suffering from some serious illness or from malnutrition or a letter from his employer that his employment would be terminated due to his long absence from work. He has not provided such evidence in his affidavit and therefore has not discharged that onus.

43. In any case the court has made it very clear in the case of Guan v Independent State of Papua New Guinea (supra) that: the adverse effect on the applicants family welfare, employment and business are not exceptional grounds for a bail application, for they are considered as natural consequences of one being charged and detained for committing an alleged offence. I am in agreement with this view and therefore dismiss this ground.

44. Applicants fourth ground for bail is in the following terms: There is shortage of food and lack of sleeping spaces at the Boram Corrective Services and such a congested place is likely to help the spread of disease such as tuberculosis, dysentery, diarrhea and airborne diseases and I am in fear of my health. The onus is again on the accused to show that these situations exist and that his prolonged detention would have adverse effect on his health. They are relevant matters for consideration but some form of evidence from appropriate authorities to confirm these allegations would be favorable to the applicant.

45. In the similar case referred to above his honor Makail AJ (as he then was) stated at page 9 that;

“ In my view, these assertion the applicant makes are serious because they suggest that the living conditions at the remand cell of Baisu Corrective Institute is unfit for human habitation. Due to over crowdedness, it poses a serious health risk to the remands. Thus, it is preferable to bring in evidence of facts and figures to support this ground of over crowdedness at the remand cell at the Baisu Corrective Institute. Where is the Health Authority’s report declaring the remand cell unfit for human habitation because of over crowdedness? In the absence of such evidence, I am not satisfied the accused has established this ground.’’

46. In the present case, I adopt his honors views wholly and say that the applicant has not produced some form of evidence from health authorities that lack of sleeping space at Boram Corrective Institute and such a congested place is likely to help the spread of disease such as tuberculosis, dysentery, diarrhea and airborne diseases. Although I note that the Bail Act calls for no strict application of rules of evidence but that does not necessarily mean that the applicant should not produce some form of information to support his application for bail. The onus is placed on him to show why he should be granted bail. What he has stated in his affidavit are mere assertions not supported by any reliable information or evidence. I therefore dismiss this ground.

47. Having dismissed all the grounds of the application there are two other issues to consider. Firstly whether there is likely-hood of threats of violence against the wife and children of the deceased if applicant is allowed bail. Secondly whether there is likelihood of interference with state witnesses if applicant is allowed bail.

48. On the first issue, I note that there is an affidavit which was filed by the state in support of the objection to bail and the affidavit is that of the deceased’s wife Georgina Poki. Her affidavit was sworn and filed on the 19^th of October 2017 and a further affidavit sworn and filed on the 27^th February 2018. In the affidavit of 19^th October 2017 paragraphs 2 to 5 she states:

‘’ The manner in which Jerome Poki attacked and killed my late husband is not accepted by my 4 children, my relatives and I. There were confrontations between Jerome’s wife and I regarding this matter. While at Corrective Institution Service custody, Jerome has text and sent threatening messages saying that; when I come out, I will kill Josiha Poki (my elder son), Nasnas Gawi and Armfry Bonny. Jerome Poki has also threatened to kill Peter Gawi, Ellison Bonjovi, Luke Bonny and Daniel Pari, when he escapes from prison .My son’s life has been threatened and he is now living in fear of being attacked by Jerome Poki at any one time if allowed bail.’’

49. These are very serious allegations of threats. However there is no evidence contained in her affidavit to support these allegations. For instance quotes of the relevant threatening text messages with particulars of dates and time when they were sent, and the mobile phone number from which the messages were sent. In the absence of such evidence, I view these allegations as baseless and therefore find that there is no likelihood of threats being issued to the deceased’s wife and children if applicant is allowed bail.

50. On the second issue of likely interference with state witnesses, I note from facts alleged that the offence alleged to have been committed by the accused was in a family home and compound, the deceased apparently being the applicants elder brother. The applicant and his family, the deceased and his family and their father Clement Poki and all other family members stayed together and they continue to this day.

51. My concern is that if the applicant is allowed bail he will return back to the family home and there is every reason to believe he may interfere with state witnesses. He stated in his affidavit that if allowed bail, he would live at his wife’s village in Hawaian. But what guarantee is there that if allowed bail he would not communicate with his family members either through mobile phone or by other means with his family members, some of whom are state witnesses.

52. Detective Police Sergeant Rosemary Kinyau was the police officer who carried out investigations into this incident and subsequently arrested the applicant. She has filed an affidavit objecting to bail being granted to the applicant. In her affidavit sworn and filed on the 16^th of February 2018 she states in paragraphs 1 and 3 in the following;

Paragraph 1- ‘’ I can recall to Tuesday 3^rd January 2017, I arrested and charged the accused Jerome Poki with one (1) count of Willful Murder, Section 299 (1) of the Criminal Code...and he appeared before the Wewak District Court.’’

Paragraph 3- ‘’ the reasons for objecting to bail are as follows:

(a) The manner in which accused had attacked and killed George Poki, his elder brother is not accepted by his wife and children and had already created a confrontation between two parties.
(b) The deceased’s wife and children (state witnesses) are living together with the accused’s family at Kua settlement in Wewak
(c) Whilst remanded in CIS custody, accused had sent text messages and issued threats towards his family including the deceased’s widow.
(d) Four (4) of the state witnesses are his family members and all reside at the same area, Kua settlement and are living in fear and most likely he will interfere with them if allowed bail.’’

53. Taking into account all these considerations, I am satisfied that there is likelihood of applicant interfering with state witnesses if he is allowed bail. Even though he has stated in his affidavit that if allowed bail, he would live at his wife’s village in Hawain. But there is no guarantee. His two nominated guarantors both live in Wewak town and they will not be in Hawain village to check on whether the applicant is complying with all conditions of bail if granted.

54. Therefore having dismissed or rejected all of the four grounds of the application for bail and finding that it is likely that applicant will interfere with state witnesses, I refuse the application for bail and order that the applicant stay remanded in CS custody at Boram jail until trial of his case. However he is at liberty to file further application for bail, if he so desires, in the Supreme Court pursuant to Section 13 of the Bail Act 1977.
_______________________________________________________________
Tekwie Lawyers: Lawyer for the Applicant/Accused
Public Prosecutor: Lawyer for the State