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Kerowa v Independent State of Papua New Guinea [2018] PGNC 39; N7110 (10 January 2018)

N7110

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 887 of 2017

BETWEEN:

ROBERT KEROWA
Applicant

AND:

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA

Respondent

Waigani: Hartshorn, J.
2018: 9^th, 10^th January

Application for Bail

Case cited:

Re Bail Application, Fred Keating v. The State (1983) SC257
Ati Wobiro & Ors v. The State (2016) unreported SCAPP 18, 19 and 20 of 2016, delivered 24^th of November 2016

Counsel:

Mr. G. Tini, for the Applicant
Mr. E. Thomas, for the Respondent

10^th January, 2018

1. HARTSHORN J: The applicant Robert Kerowa, has been charged with Wilful Murder pursuant to s. 299(1) and Attempted Murder pursuant to s. 304 Criminal Code Act Ch. 262. The maximum penalty for Wilful Murder is death and for Attempted Murder, imprisonment for life.

2. He applies for bail.

3. The applicant denies the charges. He deposes that amongst others, that he is married with children. He suffers from what he describes as typhoid and other illnesses which have not been properly diagnosed.

4. Counsel for the applicant submitted that notwithstanding that the applicant has been charged with two very serious offences, he should be granted bail as:

a) his medical condition requires a proper diagnosis;

b) the police have not given particulars of the exact role of the applicant in the commission of the offences and the extent of his involvement.

5. The State objects to bail as it contends that:

a) the alleged acts constituting the offences in respect of which the applicant is in custody consist of a serious assault and having or possessing an offensive weapon and therefore come within s. 9 (1) (c) (i) and (iii) Bail Act. Consequently if a bail authority is satisfied on reasonable grounds that this is so it may refuse bail;

b) the evidence concerning the applicant’s medical condition is not sufficient and is not recent;

c) the amounts offered to be pledged as security by each of the proposed guarantors is only K500.00. This is not sufficient given the seriousness of the offences. Further, there is no evidence that the proposed guarantors have the ability to pay these amounts in any event.

6. The two proposed guarantors have given evidence that they are so willing.

7. The entitlement to bail unless the interests of justice otherwise require, conferred by s. 42 (6) Constitution, does not apply to a person arrested or detained for the offence of wilful murder. In the Supreme Court case of Re Bail Application, Fred Keating v. The State [1983] PNGLR 133, Kidu CJ said:

“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.”

Andrew J. said:

“In my judgment the use of the word "shall" in s. 9 (1) of the Act shows that it can be seen that the bail authority must refuse bail if one or more of the conditions are proved unless the applicant shows cause why his detention in custody is not justified. Such an exercise is always discretionary......

In my view the Bail Act provides an exhaustive statement of the manner in which the discretion to grant or refuse bail is to be exercised in relation to wilful murder.

In the present case the alleged act of the applicant obviously falls within s. 9 (1) (c) of the Act. The burden is thrown upon him by s. 3 of establishing his entitlement to bail because he is arrested and detained for wilful murder.

In my opinion he has not shown any reasons why he should be entitled to bail and it is not shown that his detention in custody is not justified.”

8. In this instance the alleged acts of the applicant fall within s. 9 (1) (c) (i) and (iii) Bail Act as submitted by the State. This is conceded by counsel for the applicant. He submits however, that the applicant should be entitled to bail for the reasons stated above which I now consider.

9. As to the submission that the applicant requires bail so that he can continue with his medical treatment, and obtain a proper diagnosis, I refer to the following passage of Injia CJ in Ati Wobiro & Ors v. The State (2016) unreported SCAPP 18, 19 and 20 of 2016, delivered 24^th of November 2016, at [4]:

“The medical condition of an applicant may constitute “an exceptional circumstance” to warrant the grant of bail. But not every medical condition of an applicant may constitute “exceptional circumstances”. What must be shown is that the applicant’s medical condition must be serious enough to be life-threatening and such that incarceration is likely to have a deleterious effect on the applicant and could seriously endanger the applicant’s personal health and life: Rolf Schubert v The State [1978] PNGLR 394 at 396; State v Mondo (2011) N4325 (Kangwia AJ); State v Gilmai (2011) N4324 (Kangwia AJ). The onus is on the applicant to provide corroborative evidence by way of a medical certificate, report or notes, showing serious and deteriorating medical condition: Joe Parakas v The State, Kuku Hayara v The State (2008) N3488 (Makail J), Martin Abel v The State (2009) N3488 (Makail J), Jacob Wama Kelewali v The State (2003) N2716 (Salika J), Denden Tom v The State (2004) N2716. Medical evidence must come from a reputable medical practitioner, either private or public: State v Wiri Siminz (2010) N4062 (Makail J).”

10. The evidence given on behalf of the applicant is not to the effect that his condition is serious enough to be life-threatening and such that incarceration is likely to have a deleterious effect on him and could seriously endanger his personal health and life. It does not in my view warrant the grant of bail. The report and notes upon which the applicant relies also are not recent.

11. As to the submission that the police have not given sufficient particulars of the applicant’s role and involvement in the offences, I am not satisfied that the lack of particularity at this stage of the police investigation is such that it warrants the applicant being granted bail given the seriousness of the charges.

12. As I am satisfied on reasonable grounds that the acts constituting the offences in respect of which the applicant is in custody come within s. 9(1)(c) (i) and (iii) Bail Act, and as I am of the opinion that the applicant has not provided any sufficient reason or reasons why he should be entitled to bail, his application for bail should be refused.

13. Accordingly the application by Robert Kerowa for bail is refused.
________________________________________________________
Office of the Public Solicitor: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent