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State v Kembu [2018] PGNC 230; N7320 (22 June 2018)

N7320


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (AP) No. 53 OF 2018


THE STATE


V


ROBSON PETER KEMBU


Kimbe: Miviri AJ
2018: 22nd June


CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application – Wilful Murder S 299 CCA – grounds under section S9 (1) (c) (i)(ii)(iii)& S9 (e) Bail act – threats of violence – offensive and dangerous weapon used – Bail granted.


Facts


Accused with a relative attacked the deceased for arguing using foul language against them. They assaulted him with a weapon from which he died.


Held


Serious assault
Dangerous weapons used
Guarantors independent persons
Bail granted


Cases:


Re-Fred Keating [1988] PNGLR 133


Counsel:


L. Jack, for the State
D. Kari, for the Defendant


RULING

22nd June, 2018


  1. MIVIRI AJ: This is the Ruling on an Application for Bail made by the applicant remanded in custody currently charged with wilful murder of the deceased who had uttered foul language against him.
  2. Information laid dated the 10th day of January 2018 says that on the 19th December 2017 at Silovuti Security Compound the applicant of Kalapiai Kaleai Kove LLG Kandrian Glouster with intent to cause the death of Patrick Kaumu Marley unlawfully killed him intending to kill him. This charge lies pursuant to Section 299 (1) of the Criminal Code.

Facts


  1. On the 19th December 2017 applicant was cooking bananas and the deceased who was drunk swore at him, then attempted to stab him with a scissors but was punched by the applicant preventing him from being stabbed. Then he hit him on the head with a piece of timber causing internal injuries to the head from which he died.

Bail application


  1. The Applicant has invoked the provisions of the Bail Act Section 6 and Section 42 (6) of the Constitution for Bail pending trial.

Constitution Section 42 (6) right to bail


  1. Section 42(6) of the Constitution basically gives the right to bail from arrest or detention to all offences excluding wilful murder or treason. And this is available to the defendants applicants from arrest, detention right down to acquittal or conviction unless the interest of Justice otherwise requires.

Section 6 Bail Act


  1. Section 6 of the Bail Act enforces this in allowing bail to be applied for at any time after arrest and detention with the exception of offences under section 4 which are the exclusive prerogative of the National and the Supreme Court only. In so doing the court shall grant or refuse bail in accordance with Section 9.
  2. And section 9 is in these terms,

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.”


  1. It is required,” 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” In Re-Fred Keating [1988] PNGLR 133.

Issue


  1. Are there substantial grounds to refuse the application for bail?

Application of the law to facts


  1. The applicant relies on his own affidavit in support of his application together with that of his proposed guarantors, firstly Anton Dede dated the 31st January 2018 filed the 12th March 2018 in which he deposes that he is the Director of National Broadcasting Commission Kimbe. He knows the applicant as of good character and is willing to be guarantor for him. That the applicant will reside with him at Section 21 Kimbe Town.
  2. Secondly the affidavit of Nick Tupi dated the 31st January 2018 filed the 12th March 2018. He deposes that he is a community leader at section 24 Kimbe town and knows the applicant that he has no prior record of wrong doing in the community. He pledges the sum of K500 as surety for the guarantee on bail should it be allowed. Further that the applicant will reside with his uncle at Section 21Kimbe Town.

State objection


  1. The State has objected to bail relying on Section 9 (1) (c) (i) (ii) (iii) of the Bail Act that there is threat and use of violence here by the use of the piece of wood to the head of the deceased leading to his death.
  2. The allegation is also that the deceased was apparently drunk and uttered some provocative words and followed through with an attempt to stab the applicant with a scissor promoting him to act leading to the offence. Diverting applicant who was initially boiling bananas.
  3. I am not bound by technical rules of evidence but by the information set out above it would appear that there is no serious threat to the safety and security of the applicant if he is released on bail. And he has demonstrated by securing good credible guarantors of reputed standing to ensure that he abides by the terms of the orders for bail if the court grants as set out above. And also a place of abode where he can be easily located at the house of the person he proposes as his guarantor at section 21 Kimbe. The State’s contention of section 9 (1) (c) (i) (ii) (iii) and 9 (e) of the Bail Act is not reasonably set in place to bar or disallow the application of the applicant for bail. Applicant has demonstrated substance to his application for bail in the material led and accordingly based on them his application is granted in the terms he seeks:

Orders accordingly.


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

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