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Simon v State [2021] PGNC 409; N9106 (19 August 2021)

N9106

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 188 OF 2021

In the matter of an Application for Bail pursuant to section 6 of the Bail Act Chapter 340 and Section 42 (6) of the Constitution

BETWEEN
TUMINTS SIMON
Applicant

AND
THE STATE
Respondent

Mt Hagen: Toliken, J
2021: 19^th August

PRACTICE & PROCEDURE – Application for bail – Wilful murder – No presumptive right to bail – Exceptional circumstances need to be shown – Medical condition – Whether exceptional circumstance for grant of bail – Constitution, s 42(6); Bail Act, ss 4, 6, 9.

Cases Cited

Re Fred Keating [1983] PNGLR 133
Rolf Schubert v The State [1978] PNGLR 394
Maraga v The State (2010) SC1573
Yasause v The State (2011) SC 1112
The State v Siminzi (2010) N4060
Pawa v The Independent State of Papua New Guinea (2009) N3580

Counsel

E Wurr, for the Applicant
J Kesan, for the State

RULING

19^th August, 2021

1. TOLIKEN J: The Applicant was charged with willful murder, pursuant to Section 299 of the Criminal Code. He applied for bail pursuant to Section 42(6) of the Constitution and Sections 4 and 6 of the Bail Act.
   

Brief Factual Background

2. The brief facts alleged against the Applicant are that on 21^st December 2020 he went to the deceased’s garden. The deceased was weeding her kaukau plots with two of her sisters when he approached her and chopped her thighs. He them immediately left without alerting anyone. The deceased was eventually found and rushed to the hospital but died soon after from loss of blood. The Applicant surrendered voluntarily to community leaders the next day and was handed over to the police.
   

The Law

3. Persons charged with wilful murder and treason have no right to the presumption to bail accorded under Section 42 (6) of the Constitution. This, however, does not preclude such persons from applying for bail under Sections 4 and 6 of the Bail Act in which case the considerations under Section 9 of the Bail Act for which bail may be refused will apply. (Re Fred Keating [1983] PNGLR 133; Yasause v The State (2011) SC 1112).
   
4. The onus is on such an applicant to show that there are exceptional circumstances that warrant the grant of bail. If the State opposes bail, it should establish that one or more of the grounds in Section 9(1) of the Bail Act apply. (Rolf Schubert v The State [1978] PNGLR 394; Maraga v The State (2010) SC1573; Yasause v The State (supra))
   
5. It is, however, trite law that even if the State has shown the existence of one or more ground under Section 9 of the Bail Act to warrant a refusal of bail, the court still has the discretion to grant bail if it is of the view that the continued detention of an applicant is not justified. (See Re Keating (supra.)
   

The Issue

6. What falls to be determined here then is whether the Applicant has shown an exceptional ground or grounds to be granted bail or that there a no grounds to refuse him bail under Section 9 of the Bail Act.

Grounds for Bail

7. The Applicant cites his medical condition – hypertension – as the ground for his application.

Supporting Evidence

8. To support his application the Applicant filed two affidavits. The first was filed on 20^th April 2021 to which he annexed, among others, a medical report dated 15^th March 2021 by Dr. Sinau Vari, a Specialist Consultant Physician at the Mt Hagen General Hospital. He also annexed a copy of his Clinic Book.

9. The second affidavit filed on 07^th June 2021 annexed two reports, both dated 21^st May 2021, from the OIC of the Barawagi CIS Clinic John Bolkun and the Operations Manager of Barawagi Corrective Institution Chief Inspector Bob Omba.

10. The Applicant deposed that he is a teacher by profession. He graduated from the University of Goroka and was teaching at Kudjip High School when he was apprehended. He further deposed that he suffers from hypertension or high blood pressure. He therefore needs to eat well to be heathy and stay alive. Detention will be detrimental to his health and he fears that concerns about his family and his children’s future life will only add to his hypertension. He pleads for bail so that he can attend to his health while he waits for his trial. Finally, he deposed that he can only afford to post K500 for bail.

11. The Applicant nominated two guarantors namely Mathew Tuimar a Community Leader and Liaison Officer with the Nazarene General Hospital at Kudjip, Jiwaka Province, and Pastor John Kaulo, a younger brother of the Applicant from Kopsip village, Jiwaka Province. Both gentlemen filed affidavits and each pledged K500 as surety if the Applicant is granted bail.

Whether Applicants Medical Condition is an Exceptional Circumstance

12. Medical condition can be an exceptional circumstance for which bail can be granted to those charged with wilful murder providing that none of the grounds under Section 9 of the Bail Act or any other grounds prevent grant of bail. In respect of medical condition as an exceptional circumstance, I refer to Ati Wobiro & Ors v. The State; SCAPP 18, 19 & 20 of 2016 (unreported judgment of 24^th of November 2016), where Injia CJ said 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).”
13. Hypertension has been held to be an exceptional ground for grant of bail for offenders charged with willful murder. In The State v Siminzi (2010) N4060, the applicants were charged with wilful murder. One of their grounds for bail was that they were suffering from serious illnesses that required urgent medical treatment. They were diagnosed to be suffering from peptic ulcer and chronic renal decease, conditions which they had been suffering from well before their incarceration. They were both also suffering from high blood pressure or hypertension resulting in bouts of dizziness and fainting. According to a Dr. McKup their conditions were aggravated by their detention.

14. The application was not opposed by the State. But when granting bail to the applicants, His Honour Makail J, expressed the opinion that deteriorating ill-health or medical condition may amount to an exceptional circumstance for one who is charged with wilful murder and granted the applicant’s bail.

15. His Honour relied on his earlier ruling in Pawa v The Independent State of Papua New Guinea (2009) N3580. Pawa was charged with wilful murder and was remanded here at Baisu. He was certified by a doctor (Dr. McKup) to be suffering from high blood pressure. He was a patient of Dr. McKup for several years before his incarceration. Prior to moving his application, he was seen by Dr. McKup at the Mt. Hagen Police cells and recorded a consistent BP of 150/100mgHg. According to Dr. McKup, the applicant’s condition was most likely caused by renal disease and further compounded by stress due to detention, poor sanitation and hygiene in the cell block.

16. His Honour expressed the opinion that hypertension is a specific type of illness, quite unlike malaria or headache, where treatment is and can be readily available. Rather it requires specialist treatment by a doctor and the applicant’s continued detention will only worsen his condition. Hence, Pawa was granted bail.

17. In Simon Temo v The State (2021) N8870 (16 June 2021), when refusing bail to the applicant who was also charged with wilful murder and had applied for bail on medical grounds, among others, that he was suffering from mild coronary artery disease, hypertension and high cholesterol, I agreed with Makail J, that serious and deteriorating medical condition including cases of hypertension may indeed amount to an exceptional circumstance. There I said –

41. There is no question that serious medical conditions can amount to an exceptional circumstance. This is particularly so when the condition is life threatening and therapy and medication [are] or cannot be accessed or readily available to an applicant while in custody, or where the applicant requires close observation and monitoring by a doctor. Whether an applicant will be granted bail in such circumstances will depend on the strength and currency of the expert medical opinion and ultimately on the court’s exercise of discretion on the question of whether or the continued detention of the applicant is ... justified.
    
42. In the instant case, there is no question that the Applicant is indeed suffering from a mild case of coronary artery disease, which, if not managed and controlled can be fatal. He suffers from hypertension and high cholesterol which I believe are a bad combination for people with this condition. Further to that, he also suffers from bouts of gastritis, chronic headache and episodes of dizziness. The Applicant is on medication for all his diagnosed conditions.
    

18. The applicant there relied on the on the reports of two doctors – Dr. Jack Amana, a cardiologist and Dr. Kaevakore. Dr. Amana saw the applicant in 2018 when he presented him at the Sir Buri Kidu Heart Institute. He diagnosed him with mild coronary artery disease, hypertension and high cholesterol and placed him on a drug and diet regime to control his conditions. Apart from a second visit in 2019 when the applicant presented himself again to Dr. Amana with gastritis, it appeared that Dr, Amana did not see the applicant again prior to making his report in support of the applicant’s bail application. Nevertheless, he was of the opinion that given his condition which can prove fatal, the applicant ought to be granted bail.

19. Dr. Kaevakore’s report merely confirmed Dr. Amana’s diagnosis and the medication prescribed for the applicant and the strict dietary regime recommended for him. It was, however, also obvious to me that Dr. Kaevakore did not see Simon Temo any time prior to making her report, if ever at all.

20. To this I further said:

45. What neither doctor does not tell us is whether or not the Applicant has attended their medical clinics lately. This is important because if the court is to release an applicant charged with wilful murder on bail on the basis of a worsening medical condition, then it must be shown that the condition has deteriorated and cannot be adequately and professionally contained in the absence of close observation and monitoring by a doctor or without the use of specialist medical equipment that otherwise would not be available in prison.

21. What emanates from my discussion there is this; if an applicant’s medical condition is to amount to an exceptional circumstance, then it must be shown by relevant and current medical evidence that the condition has deteriorated to such an extent that the applicant’s life and health are in imminent danger without close monitoring and observation by a doctor or without the use of specialist medical equipment which would otherwise not be available in prison or other place where the applicant is kept.

22. For instance, if an applicant is suffering from a chronic case of renal disease that requires regular and constant dialysis, which treatment can only be done with the use of a dialysis machine in a hospital by specialist medical personnel, this may amount to an exceptional circumstance for which bail can granted to an accused charged with wilful murder.

23. It does not follow, however, that every case of hypertension must be deemed to be an exceptional circumstance. Because the condition can be controlled by medication and an appropriate dietary regime, it can only be considered an exceptional circumstance if it has deteriorated to such a level that the applicant’s life will be in real and imminent danger, if he remains in remand and cannot have immediate access to his doctor or any doctor for that matter.

24. And so, when an application for bail is based on medical grounds, the questions for the court in my opinion are these:

(1) Has the applicant’s condition deteriorated to such an extent that his health and life are in grave danger if he were to remain in custody?
(2) Does he need constant and close observation and monitoring by a doctor?
(3) Is specialist medical equipment required to manage and treat the condition?
(4) Can the condition be managed and controlled by other means while in custody?
(5) How current is the medical evidence relied upon by the applicant?

25. I now turn to the instant case. Does it meet the above test?

26. In his report Dr. Vari says that the Applicant is a known hypertensive patient who regularly attends their clinic. He is currently on antihypertensive drugs. To help control his condition the Applicant has been advised to make lifestyle changes such as taking proper meals, exercise and avoidance of stress. Dr. Vari then stressed the importance of regular visits to the clinic for the proper management the Applicant’s condition.

27. The Applicant’s Clinic Book shows that he is indeed a known hypertensive patient and also suffers from osteo-arthritis. He presented himself at the hospital on 05/06/18, 22/06/18, 02/03/19, 14/03/19, 22/05/19, 06/07/20, 10/08/20 and 15/10/20. His symptoms were consistent - headaches, dizziness, blurry vision, lower backache (LBA), Upper Respiratory Tract Infection (URTI), tingling sensations and cough. And he consistently recorded BP readings from as low as 130/70mgHg to as high as 200/100mgHg.

28. The OIC of Barawagi Corrective Institution Mr. John Bolkun does not state his qualifications but said the following in his report; the Applicant is suffering from chronic hypertension cand he has treated him with antibiotics. He needs organic food to control his condition which can lead to death or stroke. Mr. Bolkun was therefore of the opinion that the Applicant is not fit to stay in prison because he needs organic food as well as close supervision in the hospital.

29. Chief Inspector Bob Omba recommended that the Applicant be allowed bail for the following reasons –

(1) The facility does not have a vehicle to transport patients to Kundiawa and they have funding problems to buy fuel to transport remandees in and out of the prison
(2) The prison clinic is not equipped with medical equipment and is often runs out of drugs due to limited supplies
(3) The road condition to and from Kundiawa General Hospital is in bad condition.

30. So, has the Applicant’s condition deteriorated? Is his condition so critical that he is in grave danger of losing his life, or suffer from complications if he were to remain incarcerated?

31. There is no doubt that he is suffering from chronic high blood pressure. There is no question that on those occasions where he attended clinic, he presented Blood Pressure (BP) readings of up to 200/100mgHg, which, indeed is dangerously high. However, these did not remain at that level but fluctuated reaching to a low 130/70mmHg. On those occasions he was prescribed the antihypertension drug Nifedipine which appear to me to have controlled and managed his condition quite well.

32. Dr. Vari does not say in his report that the Applicant’s condition has deteriorated to a dangerous level or state. Rather he says that the Applicant is currently on antihypertensive drugs and has been advised to make lifestyle changes by eating properly, exercising and avoiding stress. Dr. Vari also recommended regular clinic attendance so the Applicant’s condition can be monitored.

33. Mr. Bolkun’s report on the Applicant’s condition appears to be a little more alarming. However, he does not state his medical qualifications, so I do not know what weight I should give it. Apart from Chief Inspector Omba’s statement that the prison is often short of drugs, neither him nor OIC Bolkun said that the antihypertension drug Nifedipine is not available at the clinic or that it cannot be easily procured from the Kundiawa General Hospital or that it is not possible to take the Applicant down to Kundiawa for regular checks as recommended by Dr. Vari despite transport problems.

34. Does the Applicant need constant observation and monitoring which can only be done in hospital? Is special medical equipment to monitor and manage his condition or can the condition be managed by other means?

35. Hypertension in my unqualified opinion can be managed with a drug and dietary regime. A lot of people with this condition are doing just that. It has not been shown to me that the Applicant’s condition has deteriorated to the stage where specialist medal equipment or personnel are needed so as to require him to be outside of custody. Furthermore, his condition can be monitored from within the prison by the OIC of the Clinic who can also ensure that he maintains a healthy diet of organic food, which the prison authorities can easily arrange for him.

36. Both medical reports by Dr. Vari and Mr. Bolkun are quite current. Unfortunately, they do not convince me that the Applicant’s condition has worsened over the period he has been in custody since his arrest or since he last saw either of them. His Clinic Book does not show that he had consulted a clinic (even the CIS Clinic at Barawagi) since his arrest let alone in the last 5 months of this year. I cannot therefore reach a reasonable conclusion that the current state of his condition ought to qualify as an exceptional circumstance.

Conclusion/ Orders

37. In conclusion, I find that the Applicant has not shown that the current state of his medical condition – hypertension – is such that it should be regarded as an exceptional circumstance.

38. Notwithstanding that, the State does not oppose bail, which of course means that, it is of the view that none of the grounds under Section 9 of the Bail Act exist or are serious enough to prevent bail being granted to the Applicant. In other words, the continued detention of the Applicant may not be justified.

39. Hence, while I have found that the Applicant condition has not deteriorated to a dangerous level, hypertension is said to be a silent killer, and the Applicant’s condition may suddenly change or deteriorate. The gaol authorities may not be in a position to quickly arrest the situation on the spot, lesser still avail the Applicant to medical attention in case of an emergency.

40. For that reason, but more importantly, given the State’s non-opposition to the application I shall grant the application and allow the Applicant bail with the following conditions:

1. The Applicant shall pay a cash surety of K2000.00.
   
2. He shall not interfere with State witnesses or contact them in any manner whatsoever.
   
3. He shall not leave the Jiwaka Province without the leave of the National Court at Mt. Hagen.
   
4. He shall, while on bail, reside with his family at Kopsip Village, Kudjip, Jiwaka Province.
   
5. He shall report to the Clerk of Court at Minj District Court fortnightly on Fridays any time between the hours of 9,30am, and 3.00p.m.
   
6. He shall attend every call-over of the National Court at Minj.
   
7. His nominated guarantors namely, Pastor John Kaulo of Kupsip Village, Kudjip, Jiwaka Province, and Mathew Tuimar, of Kudjip, Jiwaka Province are approved and they shall each pay cash sureties of K500.00.
   

Ordered accordingly.
________________________________________________________________
L B Mamu, Public Solicitor: Lawyer for the Applicant
P Kaluwin, Public Prosecutor: Lawyer for the State