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Mai v State [2019] PGNC 301; N7966 (12 August 2019)

N7966

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 221 of 2019

ROBERT MAI

V

THE STATE

Waigani: Berrigan J
2019: 12 August

CRIMINAL LAW – Bail – Applicant charged with wilful murder, contrary to s. 299 of the Criminal Code – Exceptional circumstances not established – Application refused.

Cases Cited:

Fred Keating v The State [1983] PNGLR 133
Yausase v The State, (2011) SC 1112

References cited

Sections 4 and 6 of the Bail Act¸1977
Section 299 of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel:

Mr C. Mende, for the Applicant
Mr B. Sabarei, for the Respondent

DECISION ON BAIL APPLICATION

12^th August, 2019

1. BERRIGAN J: This is an application pursuant to ss. 4 and 6 of the Bail Act, 1977.

2. The applicant is charged with one count of wilful murder contrary to s. 299 of the Criminal Code (Ch. 262) (the Criminal Code).

3. It is alleged that at about 5pm on the afternoon of 2 July 2019, the applicant picked up the deceased, his second wife, together with his 10 year old daughter and another relative in his vehicle. He drove them to Waigani where they did some shopping before they went to a club where he and the deceased played pokies. Afterwards he drove all of them back to the house. On the way the applicant stopped to allow the deceased to buy some lamb flaps on the side of the road, at her request, before carrying on to the house.

4. Once at the house, the deceased drove inside the gate. He exited the vehicle quickly and called “close the gate quickly” three times in his vernacular. As the deceased stepped out of the vehicle one of the applicant’s relatives, who was armed with an iron bar ran to the deceased and hit her on the knees causing her to fall down. Whilst she was lying on the ground, the applicant removed his shirt and started to kick the deceased continuously on the head and side of her body. Two more joined in the assault with iron bars, sticks, and bush knives causing severe injuries to her head, body, legs and wrists, including stab wounds to both thighs. A relative of the deceased reported the matter to Hohola Police on patrol at Gerehu 2-4 Market.

5. It was further alleged that when the police arrived they found the gate locked and the deceased still under assault. The police made enquiries but the applicant said it was a family problem and that the deceased had sworn at his small brother, so he bashed her. The deceased’s relative insisted that they were attacking the deceased with iron bars, bush knives and other objects.

6. It is further alleged that Hohola Police then radioed for back up. The Gerehu Police Unit subsequently arrived and went inside the yard where they found the deceased lying on the ground bleeding profusely. At their urging the applicant and his relatives took the deceased to Port Moresby General Hospital, where she died a few hours later from the injuries sustained.

7. The applicant was subsequently arrested on 22 July 2019 and has been in custody since. He is currently being held at Bomana Correctional Institution.

8. The State opposes bail.

9. It is well established that in a case where a person is charged with the offence of wilful murder, the presumption in favour of bail does not apply. Where the State opposes bail, including for a person charged with wilful murder, it should nevertheless establish that one of the circumstances in section 9 of the Bail Act apply. In considering a matter under s. 9 of the Bail Act, 1977 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.

10. If one or more of the circumstances in s. 9 apply the court is not obligated to refuse bail; the discretion remains. In such cases, however, the applicant must show that exceptional circumstances make his continued detention unjustified: see Fred Keating (supra); see also Yausase v The State, (2011) SC1112.

11. The applicant submits that none of the considerations in s. 9 of the Bail Act have been established. I don’t agree.

12. Whilst the State has not sought to invoke s. 9(1)(c), I am satisfied in this case that the alleged statement of facts demonstrates that the alleged acts constituting the offence in respect of which the applicant is in custody consist of a serious assault, threats of violence, and use of an offensive weapon pursuant to s. 9(1)(c)(i)(ii) and (iii) of the Bail Act, albeit with respect to the latter that the applicant himself is not alleged to have been in possession of an offensive weapon.

13. I am not satisfied that the State has established that the applicant’s continued detention is necessary for his own protection, invoking s. 9(1)(e) of the Bail Act. Whilst the affidavit of the deceased’s father speaks about a custom of payback in general terms, the deponent says that he is opposed to it and there is insufficient evidence to suggest there is a threat to the applicant’s welfare if released.

14. I am, however, satisfied that there is a risk of interference with State witnesses if the applicant is released, pursuant to s. 9(1)(f) of the Bail Act, in particular one of the State’s key witnesses, the applicant’s own 10 year old daughter. I am satisfied of this despite the fact that she is currently residing with her grandparents, the deceased’s parents, having regard to her very young age and the fact that the applicant is her father. I also note here that I am satisfied of this despite the evidence of the investigating officer, Constable Mark Moikia that he does not oppose bail and that the applicant has been cooperative with respect to the location of his co-accused.

15. As above, having regard to the matters established under s. 9 of the Bail Act, the applicant must establish that exceptional circumstances make his continued detention unjustified.

16. The applicant protests his innocence. He says that he was acting in self-defence because the deceased tried to stab him with a knife and that it was he who told his relatives to stop. It is clear that the State case will be strongly disputed by the applicant at any trial.

17. The question of whether or not the applicant is innocent is not a matter for this Court, however: see Theo Yausase v The State (2011) SC112. The Supreme Court did express the tentative view in that case that if it appeared that the applicant had been charged without any proper legal basis that might amount to an exceptional circumstance. That is not the case here in my view given the alleged facts, which suggest some element of planning on behalf of the applicant with respect to the assault, or at a minimum a sustained assault on the deceased which did not cease even when the Hoholo Police arrived but only upon the arrival of police from Gerehu.

18. The applicant also submits that he needs to be released so that he may resume work, otherwise his law firm and clients will be affected.

19. He also says that his 11 children, most of whom are infants and toddlers, and his three wives, will suffer significantly, and that none of his three wives will be willing or able to look after the deceased’s four children. His parents and siblings will also be unsupported.

20. Whilst I accept that his detention will impact on his family the courts in this jurisdiction have made it clear that this is a regrettable but sometimes inevitable consequence of the criminal process. I note the Supreme Court authority of Yausase here. For similar reasons, it is my view that the needs of his law firm are not exceptional circumstances.

21. To my mind the allegation that such a serious and violent offence took place at the family home, and in the presence of a child, is also relevant to my determination that the applicant has failed to establish that his continued detention is unjustified having regards to the welfare of his children.

22. The primary basis upon which the applicant seeks bail is the need for medical treatment.

23. Here he relies upon the affidavits of Doctor Presley Keith of Gerehu General Hospital and Lance Corporal Ericton Sariri, a Community Health Worker at Bomana Correctional Institution.

24. Dr Keith says that he first attended to the applicant on 14 July 2019, two weeks after the alleged incident. It appears from the affidavit that prior to that the applicant had not sought medical treatment for some time, or at least his last ECG report dates from seven years ago, in 2012, when he was told to seek treatment.

25. Dr Keith conducted blood and other tests and diagnosed the applicant with unstable angina, hypertension and dyslipidaemia. Dr Keith assessed the applicant as a “high risk heart patient” whom he recommends should have venesection, a procedure which is not explained but is required every three months, and monthly follow up. Finally he recommends that the applicant undergo an angiogram at PIH or overseas.

26. On 27 July Dr Keith attended the applicant again and diagnosed him with bronchitis, for which he recommends further medical examination and treatment.

27. Lance Corporeal Sariri recommends that the “best” option for the applicant is to be released on bail. He says that the applicant was last referred to Port Moresby General Hospital on 7 August 2019 and is required to have ongoing tests to monitor his condition.

28. Applicant’s counsel submits that the applicant cannot be treated in prison, cannot undergo venesection every three months and cannot do monthly follow ups. There is no evidence of this.

29. Correctional Services (CS) is responsible for managing the health conditions of all inmates, including remandees. Furthermore, it is apparent from the materials before me that CS is actively managing the applicant’s medical treatment in this case, referring him to Port Moresby General Hospital some 5 days ago. In addition, CS is allowing the applicant to be treated by Dr Keith from Gerehu General Hospital. The affidavit of Lance Corporal Sariri from CS confirms that the applicant has access to his medication. There is no evidence before me to suggest that the applicant has been denied medical treatment or would not be permitted to receive treatment as required.

30. Having regard to all of the circumstances, it is my view that none of the matters raised, alone or in combination, constitute an exceptional basis on which to grant bail.

31. The application is refused.

Orders accordingly,

________________________________________________________________
Wantok Legal Group: Lawyer for the Accused/ Applicant
Public Prosecutor: Lawyer for the State