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Etaja v State [2024] PGNC 222; N10894 (11 July 2024)

N10894

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA 199 OF 2024

BETWEEN:
JUNIOR JUKARY ETAJA

AND:
THE STATE
Waigani: Wawun-Kuvi, J
2024: 10^th & 11^th July

CRIMINAL LAW – BAIL – Applicant charged with Wilful Murder, contrary to s. 299(1) of the Criminal Code – Exceptional circumstances established – Application granted.

Cases Cited:
Fred Keating v The State [1983] PNGLR 133
Yausase v The State (2011) SC1112

Legislation:
Bail Act 1977
Constitution
Criminal Code

Counsel:
J Kolowe, for the Applicant
G Goina, for the Respondent

DECISION ON BAIL APPLICATION

11^th July 2024

1. WAWUN-KUVI, J: The applicant applies for bail under sections 4 and 6 of the Bail Act 1977 and 42 (6) of the Constitution.
   
2. Police have charged him with one count of wilful murder, contrary to Section 299(1) of the Criminal Code.
   
3. Police allege that on December 13, 2023, between 2.30 and 4.00 p.m., Collin Loman (the deceased) was with others at Gerehu Stage 4 in an area known as Swamp Settlement. As they were standing there, individuals in a white Toyota Mark 2 vehicle drove by. As they drove past, an incident broke out between the vehicle's passengers and the people with whom the deceased was in company. The occupants of the Mark 2 vehicle then drove off and flagged down a passing police vehicle. They claimed that the people who attacked them stole cash and a mobile phone. They returned to the scene of their confrontation with the police officers.
   
4. The applicant also showed up in a vehicle identified as a brown Toyota Landcruiser 10-seater registration BES 696. He approached the deceased and used a jack handle to strike him five times on the head. The deceased then fell. The applicant continued to attack him with the jack handle until he was lifeless. The applicant and others walked away from the area after the attack. The police officers then took the deceased body and left. On May 20, 2024, the applicant was questioned, arrested and charged, after turning up at the police station on invitation by the arresting officer.
   
5. His first appearance before the Committal Court was on June 3, 2024. The court adjourned his case to August 13, 2024, for the second mention and remanded him at the Bomana Correctional Institution.
   
6. The State opposes bail.
   
7. According to established principles, except for charges of wilful murder and treason, there is a presumption of bail in favour of a person charged with an offence. Where the State opposes bail, it must demonstrate that one of the factors listed in Section 9 of the Bail Act applies. I am reminded that when I determine a matter under section 9 of the Bail Act, technical rules of evidence do not apply. I may act on whatever information that is available: Fred Keating v The State [1983] PNGLR 133.
   
8. However, even if one or more of the circumstances in section 9 apply I may in the exercise of discretion still grant bail. In such cases, the applicant must show that exceptional circumstances make his continued detention unjustified: Fred Keating (supra) and Yausase v The State, (2011) SC1112.
9. Given the charge and the allegations, I accept the State's contention that considerations under section 9 (1) (c) (i)(ii) and (iii) exist. The investigating officer’s statements that the applicant should not be released on bail because the police interview has not been conducted and his concerns for the applicant’s safety are unfounded. Mr Kolowe's submission is accepted, the fact that the applicant was residing at his home at Gerehu and voluntarily went to the police station 5 months after the alleged offence on invitation by police negates any concerns that he is a flight risk and that his release would jeopardise his safety.
   
10. However, as the State has established that there are present section 9 of the Bail Act considerations the applicant must establish that exceptional circumstances make his continued detention unjustified.
    
11. The applicant protests his innocence. The applicant submits affidavits from Constable Mark Begelo and Inspector Hanson Tokaly to support this claim. Both officers are assigned to Gerehu police station. Inspector Tokaly is the station commander. Constable Mark Begelo states that he was among the police officers who responded to the robbery complaint and observed what transpired. He and his colleagues detained two individuals. The applicant was not one of the men arrested. Inspector Tokaly says that two individuals were apprehended for the murder. He has written to the Metropolitan Superintendent of NCD to advise him that the applicant was not involved in the murder of the deceased. He attaches his letter to the Metropolitan Superintendent to his affidavit.
    
12. The question of whether the applicant is innocent is not before this Court; see Theo Yausase v The State (2011) SC112. However, the Supreme Court expressed a tentative view that if it appeared that the applicant had been charged without any proper legal basis, that might amount to an exceptional circumstance. Every case is resolved based on its own unique facts. The State made no objections to Inspector Tokaly's and Constable Begelo's evidence. The statement of facts shows that police officers were present and witnessed the events that occurred. The applicant provided affidavits from the police who assert to his non-involvement. While this is not the trial court, given that the State made no objections to Inspector Tokaly's and Constable Begelo's affidavits, I accept that it has accepted the information contained therein. In that regard, I am inclined to accept that the applicant has demonstrated an exemptional circumstance.
    
13. The applicant has also stated that his medical condition is a ground to be granted bail. The applicant has attached a medical report dated 24 May 2024. It states that the applicant was diagnosed initially with Tuberculosis. He completed treatment however he continues to experience long term side effects and has been diagnosed with Post TB Fibrotic Lung Disease. Factors such as cold weather, smoke, dust and a congested environment exacerbate his condition. Considering that the State had no objections, I accept that the applicant has a serious medical condition.
    
14. Having regard to the matters stated, it is my view that the combination of the matters raised by the applicant constitute an exceptional basis on which to grant bail.
    
15. The application 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.

________________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State