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Kapo v State [2021] PGNC 455; N9334 (15 November 2021)

N9277

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. (APP) NO. 375 OF 2021

BETWEEN:
REX KAPO

AND:
THE STATE

Waigani: Ganaii, AJ
2021: 12^th, 15^th November

CRIMINAL LAW – Bail - Wilful Murder – Right to Bail not readily available – Grounds seeking bail not exceptional circumstances – Affidavit of Arresting officer shows applicant gave different name - Likelihood of not cooperating with pending investigations - Likelihood of Absconding - Bail refused

Cases Cited

Bernard Juale v The State [1997] PGNC 71; N1887

Felix Kange v The State (2016) SC1530
Fred Keating v The State [1983] PNGLR 133
Julie Kesno v State [2012] N5264
Philip Maru & Arua Oa v The State (2001) N2042
Hombi v The State (2010) N4080
Yausase v The State (2011) SC1112

Legislation Cited

Constitution, Section 42 (6)
Criminal Code Act, Chapter 262 of 1974
Bail Act, Chapter 340, Sections 4, 6 and 9

Counsel

Ms Kametan , for the State
Mr Ela Nalea, for the Accused

DECISION ON BAIL APPLICATION

15^th November, 2021
1. GANAII, AJ This is the ruling on an application for bail brought pursuant to section 42 (6) of the Constitution and ss 4 and 6 of the Bail Act. The accused is charged with one count of Wilful Murder contrary to s 299 of the Criminal Code.

2. The applicant relies on his own affidavit, two affidavits of proposed guarantors and an affidavit from his lawyer Mr Nalea.

Obiter Dicta

3. At the outset, and in obiter, in light of Mr Nalea’s filing of affidavit in support of his client’s case, I say this. Lawyers taking carriage of proceedings must stay clear of getting themselves caught up in the case of their clients. Lawyers who file affidavits on behalf of their clients may be subjected to cross-examination, and therefore may find themselves having a conflict of interest in appearing as a witness and as counsel representing their client. It is for this reason that lawyers should not file affidavits in support of their client’s case, unless, another lawyer from the same firm is available to appear and represent the client and not the same lawyer who filed affidavits in support of the client. That is a rule of thumb for lawyers and one which Mr Nalea must bear in mind.

Grounds seeking Bail

4. The applicant is seeking to be released on bail on the following grounds: that he has a medical condition; his safety in prison is jeopardised; his duties as secretary of his church and family welfare will suffer if he remains in detention; his co-accused had been granted bail and he is innocent.

5. State objected to bail and made the necessary submissions in law supported by applicable case laws in substantiating their arguments.

Issue

6. Issue is whether bail should be granted.

Law

7. The applicable legal provisions are section 42 (6) of the Constitution and section 4, 6 and 9 of the Bail Act.

1. Section 42 (6) states:

‘’A person arrested or detained for an offence (other

than treason or wilful murder as defined by an Act of Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.” Section 3 of the Bail Act give effect to s 42 (6) of the Constitution”.

2. The Constitutional provision (s 42 (6)) avails bail at all times to all persons charged with a criminal offence except for wilful murder and treason where the right to bail, although available, is not automatically granted as of right to those charged with wilful murder (or treason). It is granted at the discretion of the Court and for the Court to grant bail in his favour the applicant must show exceptional circumstances.
   
3. Section 4 (1) (a) of the Bail Act states that:
   

“A person charged with wilful murder, murder or an offence punishable by death shall not be granted bail except by the National or the Supreme Court.”

4. Section 9 (1) (a) – (j) of the Bail Act sets out the grounds on which bail may be refused if one or more of the considerations is present. However, the guidelines under s 9 is not exhaustive as there are other considerations such as the interest of justice to refuse bail or discretion of the bail authority to grant bail if exceptional circumstances can be shown by the applicant. See Re: Fred Keating (supra).
   

Application

Guiding Principles

8. The law and principles to be applied in bail applications for persons charged with murder and wilful murder are settled, in the cases of Fred Keating v The State (1983) PNGLR, 133; Yausase v The State (2011) SC 1112 and Felix Kange v The State (2016) SC 1530. The relevant principles applied when considering bail for a wilful murder are:

(1) Only the National Court and the Supreme Court has jurisdiction to

grant bail to persons charged with wilful murder under Section 4 of the Bail Act.

(2) An applicant charged with wilful Murder (or treason) enjoys no

presumption in favour of granting of bail under Section 42(6) of the Constitution). Their applications are not subjected to the interest of justice.

(3) If the State opposes bail, including a person charged with wilful

murder, it should establish that one of the circumstances in Section 9(1) of the Bail Act apply. His Honour Kandakasi J (as he then was) in the case of Philip Maru & Arua Oa -v-The State (2001) N2042 stated that the Bail Authority can take into account other and further considerations apart from those in section 9 (1) and listed a number of them. In Felix Kange v The State (2016) SC 1530, the Supreme Court endorsed those additional considerations that the Bail Authority can take into account.

(4) If one or more of the circumstances in Section 9 (1) apply, the Court is

not obliged to refuse bail. The Bail Authority still has a discretion whether to grant or refuse bail.

(5) The onus is on an applicant charged with wilful murder to convince the

Court with evidence showing exceptional circumstances that make his continued detention unjustified.

9. The applicant advanced the following reasons for seeking the grant of bail: medical condition; role in church and involvement in community; safety in prison; family welfare; co-accused was granted bail; innocence and he was wrongfully arrested as a result a wrong name is used by the police.

10. The State opposed bail on the basis that the alleged crime involved a serious assault, a consideration under section 9 (1) of the Bail Act. State also argued that the accused has demonstrated being untruthful and therefore may not be honest with his bail conditions and is likely to abscond.

11. I respond to the grounds raised as follows:

Medical condition

I accept the state’s submission that the letter dated the 11^th of October 2021 from Clinical Unit Coordinator of Kerema Provincial Hospital, is merely a report stating that the applicant is an asthmatic patient. It does not show any complications or emergency situations whereby the court should take into consideration now. I also note that the health concerns of any remandees in CIS are matters for the CIS administration and are not exceptional grounds for bail.

Role in church and involvement in community

Not being able to participate in a church and community partnership program for surrender of arms is a natural consequence of being arrested and charged for a serious offence.

Safety in prison

There is no supporting evidence to show that the applicant’s safety in prison is jeopardised due to his involvement in law enforcement, previously as a security guard. Even if there is evidence of such, it is not a ground showing ‘exceptional circumstance’. Safety in prison is a matter for the administration of CIS. Case principles in Re Hombi (2010) N4080 and Bernard Juale v State are applied.

Family welfare

Not being able to cater for family due to incarceration are natural consequences of being arrested and charged and are not exceptional circumstances for consideration of bail. Yasause v State, Bernard Juale case principle applied.

Co-accused was granted bail

I accept the state’s submission in reliance on the case of Julie Kesno v State [2012] N5264. Where a co-accused is granted bail, it should not automatically follow that another co-accused should also be granted bail. Bail authorities have to be mindful of the reasons why a co- accused was granted bail. In this instance, those reasons were not disclosed to assist this court.

Proclaimed Innocence

The accused pleads innocence and he is entitled to do so. He says that he was wrongfully arrested and as a result a wrong name is used by the police on him. Innocence is not a relevant consideration and has been rejected in many National and Supreme Court decisions for being irrelevant. In Felix Kange v The State (2016) SC 1530, the Supreme Court, said this at page:

“..... The applicant’s proclamation of his innocence is irrelevant to his bail application and should be rejected. A similar result was arrived at in the case of Dr Theo Yausase v. The State. There Dr. Yausase was charged with wilful murder. Pending his trial in the National Court, he applied for bail. One of the reasons he advanced was his innocence. The Court rejected the proclamation or the applicant’s claim of innocence as irrelevant in a bail application.”

12. I am well guided by the wisdom of the above reasonings. Whilst the applicant remains innocent until proven guilty, there is no similar presumption for grant of bail for a serious charge of wilful murder.

Affidavit of Arresting Officer

13. Further, I consider the affidavit of the Arresting Officer, Detective Chief Inspector Leanna Moere of the RPNGC, Southern Command, Police HQ. He is the Police Informant who arrested and charged the accused. He attests to the character of the applicant by demonstrating that the applicant has a tendency to mislead police.

14. DCI Moere deposed that upon his arrest, the applicant identified himself as Rex Kapo. He is now presenting himself as Kenny Miname. Based on that, the Arresting office says that the applicant may mislead the Police in their ongoing investigations and is likely to abscond.

15. I accept the affidavit of the Arresting officer DCI Moere on the basis that he is the case investigating officer and is well aware of the circumstances of the case. He is aware of the groundwork surrounding the apprehension, arrest, police interviews, obtaining of witness statements and status of witnesses etc. I accept his statement that the applicant had given another name when he was arrested.
Conclusion

16. Where the applicant had given the Arresting Officer another name, the impression I share with the Arresting Officer is that the applicant is likely to conceal information on the investigations, or he may deliberately mislead the police in their investigations and is therefore most likely to abscond.
17. Finally, I note that one of the section 9 considerations under the Bail Act is present where the case involves a serious assault. Other considerations include likelihood of absconding and where the applicant has not shown exceptional circumstances why bail should be granted. On this basis, bail is refused.

Order

18. Bail is refused.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Kamen Lawyers: Lawyers for the Applicant