N8921
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 221 OF 2021

In the matter of an Application for bail under s. 42(6) of the Constitution and s.6 of the Bail Act

BETWEEN
SALOME PAPI
Applicant

AND:
THE STATE
Respondent

Lorengau and Waigani: Narokobi, J
2021: 14th & 20th July
CRIMINAL LAW - Practice and Procedure – Bail application – Offence of wilful murder contrary to Criminal Code – Section 299(1) – Bail Act – Section 9 (1)(c)(i)(ii)(iii) present in commission of crime – section 9(1)(f) of the Bail Act – safety of applicant is a consideration taken into account – Constitution section 42(6) interests of justice – Crime of wilful murder – a serious crime – Accused persons have not discharged onus of showing why their continued detention in custody is not justified – Bail is refused.
The applicant has been charged for wilful murder and applies for bail on the following grounds:- 1)her safety is not guaranteed as she is the only female detainee amongst the male detainees; 2) No separate cell for her at Lorengau Police Station; and 3) she is a first time-offender. The State objects to the granting of bail, in that:- 1) the deceased died as a result of serious assaults inflicted upon her by the applicant; 2) Tension between the family of the applicant and the deceased is still very high; 3) Her movements from the cell to the committal court and back is heavily guarded by the Police and the Defence Force; and 3) It is for her own safety that she remains in custody.

Held:

1)	The consideration for the safety of the applicant should be given much weight in the circumstances of this case.
2)	After inspecting the police cell, it is noted that the applicant’s cell is separate from the male detainees and the concerns for the applicant’s safety and privacy can be attended to with some effort and control from the duty officer keeping the male detainees from walking past her cell. The area should be restricted.

3)	Considering all the circumstances, with the opportunity for the applicant to apply a second time for bail after committal, should the circumstances change, bail should be refused.  

Cases Cited:

Re Fred Keating -v- The State [1983] PNGLR 133
Re Herman Kagl Diawa [1980] PNGLR 148
The State -v- Beko Job Paul [1986] PNGLR 97
Makovu v State [2010] PGNC 250; N4038 
Philip Maru and Arua Oa v State [2001] N2045

Statute Referred to:

Bail Act, Ch 340
Constitution 

Counsel
Mr. K. Pokiton, for the Applicant
Mr S. Kuku, for the Respondent
Ruling

1.	The applicant, Salome Papi has applied for bail pursuant to ss 4 and 6 of the Bail Act Ch 340.

2.	 In support of her application, she relies on the following documents:

•	Bail Application filed 12 July 2021;
•	Notice of Motion filed 12 July 2021;
•	Affidavit in Support – Salome Papi, filed 12 July 2021;
•	Affidavit in Support- Francis Posonau filed 12 July 2021;
•	Affidavit of Guarantor – Kanawi Sindol, filed 12 July 2021

3.	The State objects to the application, relying on the affidavit of Detective Sergeant Markson Gamui, filed 13 July 2021, the Officer in Charge of Criminal Investigation Division at Lorengau Police Station.

4.	The circumstances surrounding the charge, accompanying the information laid on 23 June 2021 is basically as follows. On Friday 18 June 2021 between the 12.30pm and 1.00pm, the applicant came out from her workplace for lunch and met the deceased. She had a knife on her and stabbed her on her left breast, on her head and a third time on her hand after she attempted to block the applicant from stabbing her. After stabbing her, she left her and went back to her workplace, at Goumei Trading in Lorengau. The deceased was then taken to the hospital and pronounced dead on arrival.

5.	The applicant has been awaiting trial for a month now.

6.	The applicant advances the following grounds to support her bail application:

•	Her safety is not guaranteed as she is the only female detainee amongst the male detainees;
•	No separate cell for her at Lorengau Police Station;
•	She is a first time-offender

7.	The State objects to the granting of bail relying essentially on the affidavit of Detective Sergeant Gamui, in that:

•	The deceased died as a result of serious assaults inflicted upon her by the applicant;
•	Tension between the family of the applicant and the deceased is still very high;
•	Her movements from the cell to the committal court and back is heavily guarded by the police and the Defence Force; and
•	It is for her own safety that she remains in custody.

8.	I have also had the opportunity to visit the Lorengau Correctional Services and Lorengau Police Station Cell Lock-up in the presence of the counsel for the applicant and the State and the arresting officer, Detective Sergeant Gamui. I note that the Applicant is kept in a separate cell from the male detainees which has its own shower and toilet and there is some level of privacy, if the duty officers with some effort keep the male detainees from walking past her cell. It is not possible to “seal-off” her area with curtains as it is risky to do that in the event of self-harm. The spacing is such that it is only sufficient for a single detainee.

9.	The Correctional Services area for females is quite small but is not separated by fence from the kitchen area. At present there is only one detainee. There is no separate area for female remandees.

10.	The issue before me is whether I should grant bail to the applicant.

11.	Since the applicant has been charged with wilful murder, it is necessary to consider Section 42(6) of the Constitution, which removes the presumption in favour of bail to the applicant:

“(6) A person arrested or detained for an offence (other than treason or wilfulmurder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.”

12.	In-addition to this, the court should also bear in mind, Section 9 of the Bail Act:

“Section 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.”

13.	The law on bail is well settled in this jurisdiction. A neat summary of the law is stated by Kawi J in Makovu v State (2010) N4038, which I adopt:

“(i) A person arrested and charged with an offence is entitled under section 42(6) of the Constitution to bail at anytime except for wilful murder and treason but a bail authority still has the discretion to refuse bail “if the interest of Justice otherwise requires’’. See Re Herman Kagl Diawa [1980] PNGLR 148.

(ii) Section 9 of the Bail Act prescribes circumstances in which bail may be refused. These section 9 prescriptions qualify the right to bail under Constitution section 42 (6).

(iii) The existence of one or more of the considerations under section 9 of the Bail Act may operate as a bar to or form the basis for the refusal of bail but that is not automatic. There is a discretion vested in the Bail Authority to grant bail if any applicant for bail is able to show by appropriate evidence that his continued detention in custody is not justified. The existence of one or more of the considerations under section 9 is no reason to refuse bail - See Re Fred Keating [1983] PNGLR 133.

(iv) The burden to produce appropriate evidence to form a foundation for a grant of bail is not a difficult and complicated one because by virtue of section 9(2) of the Bail Act, the application of strict and technical rules of evidence and procedure are excluded.

(v) The list of circumstances under section 9 of the Bail Act are not exhaustive and conclusive and the court has the discretion to take into account any other considerations forming the basis of a particular bail application.”

14.	In this particular case, after considering the affidavit material before me, I determine that the following circumstances under Section 9 of the Bail Act exists in this particular case:

•	The alleged offence involves serious assault;
•	Threat of violence, which was actually inflicted;
•	Possession of offensive weapon, a knife, used to commit the offence; and 
•	The applicant’s own safety is in question as tension between the families is high.

15.	The question now becomes, has the applicant demonstrated that her continued detention is not justified? Or said in another way, would it be in the interests of justice that the applicant is granted bail?

16.	After weighing all the considerations in favour of granting bail and those against, I am of the view that the consideration for the safety of the applicant as attested to by the affidavit of Markson Gamui and that this was an allegation of a serious assault, should be given much weight. The concerns for the applicant’s privacy as the sole female detainee and her safety, at present, can be attended to with some effort and control from the duty officer as her cell is in fact separate from where the male detainees are kept. The duty officer should also ensure that male detainees do not walk past her cell. He area should be restricted.  

17.	Since the detainment at the Lorengau Police Cell is a temporary set-up, I will allow the applicant to make a second bail application after the District Court has deliberated on whether the applicant should be committed to stand trial in the National Court. Additionally, in future, if there are other female detainees who are going to be detained at the Lorengau Police Cells and considering that the space is sufficient for only one female detainee, may provide additional grounds for a further bail application.

18.	In the event a second application is filed after committal, the court will need to consider fresh evidentiary material and hear further submissions from Counsels on the situation at Lorengau Correctional Services in terms of whether there is a separate area for remandees as opposed to prisoners, and whether it is secured enough for the applicant to be detained as a remandee pending trial in light of the present tensions and safety concerns, which both the applicant and the State agree, are serious.

19.	I therefore order that bail is refused and the applicant be kept at the Lorengau Police Cell until her matter is determined by the committal court. 

Orders accordingly.

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