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Konio v State [2022] PGNC 419; N9965 (4 October 2022)

N9965

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA 724, 726, 727, 728 & 729 OF 2022

IANA MADO KONIO, AGUNA AGUNA, RONNIE DAURE, METHUSELAH NAO & GOROA RONNIE

V

THE STATE

Waigani: Wawun-Kuvi, AJ
2022: 30^th September & 4^th October

CRIMINAL LAW – Bail – Applicants charged with Wilful Murder under s.299(1), Break and Enter with intent to Commit a Crime under s399(b), Wilful Damage under s.444(1) of the Criminal Code respectively – Exceptional circumstances established – Application granted.

Cases Cited:

Yausase v State [2011] PGSC 15; SC1112
Re Bail Application by Hombi [2010] PGNC 84; N4080
Keating v The State [1983] PNGLR 133

Legislation:

Bail Act 1977(Ch 340)
Criminal Code (Ch 262)

Constitutional Law

Constitution of the Independent State of Papua New Guinea

Counsel:

Mr Otto Ogen Dekas, for the Applicants
Ms Tapas Kametan, for the Respondent

DECISION ON BAIL

4^th October, 2022

1. WAWUN-KUVI, AJ: This is an application for bail pursuant to sections 4 and 6 of the Bail Act 1977 and 42 (6) Constitution.
   
2. The applicants are co-accused and have been jointly charged with one count of Wilful Murder contrary to section 299(1), Break and Enter with Intent to Commit a Crime contrary to section 399 (b) and Wilful Damage under section 444 of the Criminal Code respectively.
   
3. The alleged facts are that on 11 June 2022, there was a fight involving Bradley Vagi, David Steven, and James Ario. Bradley Vagi and David Steven are from Lealea Village. James Ario is from Papa Village. As a result of the fight James Ario was hospitalized. On 12 June 2022 between 8.00 am and 10.00 am, the applicant with other villagers from Papa Village went to Lealea Village. They were armed with bush knives or machetes, sticks, iron rods, stones, bricks, and bottles. Bradley Vagi and David Steven were detained in the Buria Police Post over the alleged assault on James Ario. The applicants and other villagers stated that James Ario had died. They shouted to the police officers to hand over the suspects so that they would kill them. They broke into the perimeter fence and overpowered the police officers. They proceeded to break down the police station’s front door, the office door, and the toilet door in search of the suspects. They damaged the interior of the police post. Bradley Vagi and David Steven broke the toilet window and escaped in fear of their lives. Bradley Vagi was chased and injured but he managed to escape. David Steven ran to a nearby house seeking refuge. The applicants and their fellow villagers surrounded the house and broke into the house. David Steven jumped out of the window and ran towards another house. He was captured by the mob. They cut him with a bush knife on his head and commenced assaulting him with the items they were armed with. He was stripped naked and further assaulted. The assault stopped when a youth threw himself on top of David Steven’s body. David Steven was rushed to the hospital but was pronounced dead on arrival. Police attended and the applicants were handed over to police by village leaders. Other persons remain at large.
   
4. The State opposes bail submitting the presence of section 9 (1)(c)(i)(ii) and (iii) considerations.
   
5. The general right to bail under section 42(6) of the Constitution does not apply in the applicants case because they have been charged with wilful murder: see section 42 (6) of the Constitution, Yausase v State [2011] PGSC 15; SC1112 and Keating v The State [1983] PNGLR 133.
   
6. Where the State objects to bail, it must demonstrate that there is present one or more considerations under section 9 (1) of the Bail Act. However, even if one or more of the considerations are present, the Court still has discretion to grant bail. For the Court to exercise that direction the Applicants must demonstrate exceptional reasons that justify the granting of bail: Yausase v State [2011] PGSC 15; SC1112 and Keating v The State [1983] PNGLR 133.
   
7. In considering the application, I also take note that the strict rules of evidence do not apply, and I may act on any information available to me: section 9 (2) of the Bail Act. See also Keating v The State [1983] PNGLR 133.
   
8. Ms. Kametan submits that the statement of facts demonstrates that there was a serious assault that led to the death of the deceased, there were threats of violence and the applicants had in their possession offensive weapons. All of which I accept are present.
   
9. The Applicants each provide their reasons for seeking bail in their respective affidavits.
   
10. All the applicants protest their innocence and except for Methuselah Nao say that they are breadwinners and each of their families will suffer from their continued detention. Methuselah Nao says that he needs to go back to school.
    
11. These grounds are not considered as exceptional circumstances supporting the granting of bail: see re Bail Application by Hombi [2010] PGNC 84; N4080 and Yausase v The State (2011) SC 1112.
    
12. There is however a consideration that the State did not refute. The information before the Court demonstrates that the applicants were not arrested and charged initially for the offences. Their names were called, and they were required to surrender to police. Ronnie Daure’s name was not called but because his father’s name was called, he went along out of sympathy for his father. They were told that they were required to assist the police.
    
13. All the applicants were taken into police custody and detained on 13 June 2022. They were formally arrested and charged on 24 June 2022. They were detained for 10 days without charge.
    
14. From 24 June 2022 to 27 September 2022, the applicants were detained without bring brought to Court. A period of almost 3 months. They made their first appearance in Court on 28 September 2022. They have not been served copies of their police hand up brief (HUB). There is no certainty as to their next court appearance as the Central Committal sittings are not consistent.
    
15. The combination of the last factors to my mind demonstrates that the applicant’s continued detention is not justified. And in the absence of any evidence from the State that the applicants are likely to interfere with witnesses or that they are flight risks, bail is granted.
    

Orders

16. The Order of the Court is:
    
    1. Bail is granted on the conditions set out in the bail certificate issued under Section 2 of the Bail Regulation.
       
    2. The Applicants shall be released upon payment of their cash bail and surety.
       

________________________________________________________________
Ogenson Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent