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Nokue v State [2018] PGNC 451; N7566 (14 November 2018)

N7566

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 313 OF 2018

SIMON NOKUE

V

THE STATE

Waigani: Berrigan, J
2018: 14 November

CRIMINAL LAW – Bail – S. 9 Bail Act – Interests of justice

Cases Cited

Fred Keating v The State [1983] PNGLR 133
Theo Yausase v The State (2011) SC1112
Justin Parker v The State (2015) N5984

Counsel

Mr B Nahupa, for the Applicant
Ms E Kave, for the State

DECISION ON BAIL APPLICATION

14^th November, 2018

1. BERRIGAN J: This is an application for bail pursuant to Sections 6 and 9 of the Bail Act 1977 and Sections 42(6) and 37(4)(a) of the Constitution.
   
2. The applicant is charged with the murder of his late wife, Laurel Koko Myron, at Saiwara Settlement, 8 Mile in the National Capital District on 20 October 2018, contrary to s. 300(1) of the Criminal Code (Ch. 262) (the Criminal Code). It is alleged that on that evening the accused stabbed the deceased multiple times on her thighs and stomach following an argument at their home. The deceased died from blood loss as a result whilst on the way to hospital. At the time the deceased was 3 months pregnant.
   
3. The applicant has been in custody at Bomana Correctional Institution since his arrest by police. He seeks bail on the grounds that the State has not established any of the matters set out in s. 9 of the Bail Act 1977.
   
4. It is well established that a person arrested and charged with an offence, other than wilful murder or treason, is entitled under s. 42(6) of the Constitution to bail at any time prior to acquittal or conviction unless the interests of justice otherwise require. In considering the grant or refusal of bail in such cases the court is to be guided generally by s. 9 of the Bail Act 1977. If the State opposes bail, including for a person charged with murder as in this case, it should establish that one or more of the circumstances in s. 9 apply. In considering a matter under s. 9 of the Bail Act a court is not bound to apply the technical rules of evidence but may act on such information as is available to it: Fred Keating v The State [1983] PNGLR 133. (The applicant also relies on this decision as applied in Justin Parker v The State (2015) N5984.)
   
5. The State has clearly established in the present case that the alleged offence concerns a serious assault, whilst in possession of an offensive weapon, pursuant to ss. 9(1)(c)(i), and (iii) of the Bail Act. The allegation concerns a very serious assault against the applicant’s wife, who was pregnant at the time. The alleged facts point to a brutal offence involving multiple stab wounds.
   
6. I am further satisfied that the State has established that the applicant is likely to interfere with witnesses for the purposes of s. 9(1)(f). The witnesses to the alleged offence include the deceased’s relatives and the applicant’s children, who reside at the applicant’s house. The fact that the applicant at paragraph 8 of his affidavit in support of this application says that he will “tell the court the full details of the incident with the witnesses who saw the suicide”, including those I have just mentioned, is also relevant to my determination in this regard.
   
7. Despite the fact that one or more of the circumstances in s. 9 of the Bail Act has been established the court is not obligated to refuse bail. The applicant must in such circumstances establish, however, that his continued detention is unjustified: Keating, supra.
   
8. I have had regard to the following matters, which whilst not raised in oral argument are contained in the applicant’s affidavit.
   
9. The applicant protests his innocence. The question of whether or not the applicant is innocent is not a matter for this court: see Theo Yausase v The State (2011) SC112.
   
10. The applicant also raises the need to care and make arrangements for his children. I accept that with the loss of their mother, the continued detention of their father may add to the difficulties faced by the applicant’s children. I have enormous sympathy for them. Nevertheless, the applicant has not established that his detention in view of the circumstances outlined above is not justified. To my mind the allegation that such a serious and violent offence took place in the family home, in which children were present at the time, is also relevant to my determination that the applicant has failed to establish that his continued detention is unjustified.
    
11. The application is thereby refused.
    

Orders accordingly.
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Horizon Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State