N10729
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO 326 OF 2023

BETWEEN
SEITH PILAI
Applicant

AND
THE STATE
Respondent

Wewak: Makail, J
2024: 12th & 16th April

APPLICATION FOR BAIL – Bail pending trial – Wilful murder charge – Grounds of – Special medical assistance – Overcrowding at remand facility – Innocence – Applicant suffering from leg wound from gun-shot during attempted escape – Wound requiring specialist medical treatment – Lack of availability of specialist medical treatment at remand facility – Repeated requests for specialist medical treatment failed – Continued detention not justified – Criminal Code – Section 299(1) – Constitution – Section 42(6) – Bail Act – Sections 4 & 9(1) 

Cases Cited:
Fred Keating v. The State [1983] PNGLR 133

Counsel:
Mr A Kana with Mr A Koraino, for Applicant 
Ms D Ambuk, for State 

RULING
16th April 2024
1.	MAKAIL, J: This is an application for bail under Sections 4 and 9 of the Bail Act and Section 42(6) of the Constitution.  
Brief Facts 
2.	The applicant hails from the Yangoru District in the East Sepik Province.  He has been charged with one count of wilful murder under Section 299(1) of the Criminal Code and has been detained since 9th December 2022.  The State alleged that during a fight, he struck the deceased with a grass knife.  As a result of the grass knife wound, the deceased died.
Ground for Bail
3.	According to the grounds for bail, the applicant alleged that:
(a)	he had been wounded on one of his legs by a gun shot fired from a member of the Correctional Service (“CS”) during an attempted prison escape and needed regular specialist medical treatment which he said was not provided to him by the CS at Boram CS despite repeated requests.
(b)	there is overcrowding at Boram CS facility.
(c)	he is innocent.
Guarantors
4.	The applicant has two guarantors:
	(a)	Pastor Michael Monias who has pledged to put up K250.00 surety.
(b)	John Simbi who is a Village Court Magistrate and has pledged to put up K250.00 surety.
Proposed conditions of bail
5.	According to the applicant, if he is granted bail, he will reside at Yawasoro, 4th Road, Wewak.  In addition:
(a)	he will pay a sum of K1,000.00 as bail fees.
(b)	John Simbi who is a Village Court Magistrate and has pledged to put up K250.00 surety.
(c)	he will attend Court on appointed times until completion of his case.
(d)	he will not commit any other criminal offence while on bail.
(e)	he will not interfere with State witnesses and complainant.
(f)	he will report to the National Court via his guarantors’ every first Monday of every month.
State’s submissions
6.	The State opposed bail on the following grounds:
	(a)	the alleged offence consists of a serious assault.
	(b)	the alleged offence consists of threat of violence.
(c)	the applicant is likely to interfere with State witnesses and complainant.
(d)	the Medical Report dated 29th May 2023 pertaining to the leg wound of the applicant is 11 months old and unreliable because it does not give the current state of the leg wound to support the assertion by the applicant that the leg wound is in dire need of regular specialist medical treatment.
(e)	the leg wound was a result of the applicant’s own negligent action when he attempted to escape and was shot by a member of the CS.  It is evidence of the applicant’s bad character.
(f)	overcrowding of the remand facility is not a ground for bail, but an administrative matter that can be resolved by the CS.
(g)	the applicant’s innocence is not a ground for bail, but matter for trial. 
(h) 	if the applicant requires regular specialist medical treatment, the Court can direct the CS to facilitate it.
(i)	one of the guarantors John Simbi’s ability to supervise and ensure that the applicant attend at call-over while on bail is questionable because he is not near where the applicant will be residing if bail is granted.  He resides in the village in Yangoru District while the applicant will be residing at Yawasoro in Wewak.
7.	However, if bail is granted, the State requires:
(a)	the applicant to pay a sum of K2,000.00 as bail fees, and
(b)	each guarantor shall pay a sum of K500.00 as surety.
(c)	the applicant shall report to the Assistant Registrar of Wewak National Court on first Monday of each month.
(d)	the applicant shall not interfere with State witnesses including the complainant.
Consideration 
8.	Bail will not be granted on the second and third grounds of the application as they are without merit.  In relation to the first ground, there is no contest by the State that the applicant was shot and wounded on his leg while attempting to escape from remand. While it is correct that the Medical Report produced by the applicant dated 29th May 2023 is 11 months old and out-dated, there is an explanation for it.  Despite the applicant’s repeated requests to the members of the CS to take him to the hospital for a review and treatment, it was not done.  Because of that, he has no recent Medical Report in relation to the latest status of the wound to produce to the Court.
9.	However, he has produced photographs of his leg wound.  On the face of it, it may be observed that the exterior of the leg wound appeared to be healed because there is no sign of sores appearing, but he says that the wound is not completely healed from inside because his mobility and movement is still restricted.  This assertion is uncontroverted because the State did not produce any evidence to contradict it.   
10.	It is also correct that the applicant contributed to his own leg wound when he attempted to escape and was shot by a member of the CS.  However, it does not deny the fact that the applicant was wounded, and the uncontroverted evidence is that the applicant is yet to completely recover from the wound and the recovery has been slow because of lack of assistance by the CS to provide access to him to specialist medical treatment. 
11.	As to the State’s doubt in relation to the guarantor John Simbi’s ability to supervise the applicant because of the distance between them, it is not a case where the guarantor is residing outside the province and accessibility to the applicant is extremely remote or nil, but that the guarantor has access to the applicant by road between Wewak and Yangoru District and he deposed in his affidavit that he fully understands his role and responsibilities as a guarantor if the Court approves his request.  This person qualifies to be a guarantor for all intent and purposes. As for Pastor Michael Monias, there is no question about these credentials and ability to be a guarantor for the applicant. 
12.	As to the State’s concern of threats to its witnesses including the complainant, this assertion is unsupported by evidence.  However, it is a concern that can be adequately addressed by a condition of bail that the applicant will not interfere with State witnesses including the complaint while on bail.
13.	Finally, it is correct that the alleged offence consists of serious assault and threat of violence with use of a weapon – grass knife and the applicant has failed to show that these are not present under Section 9(1) of the Bail Act. However, what is abundantly clear is that the applicant’s leg wound requires specialist medical treatment, but his repeated requests to have access to it failed.  The special medical need must override the presence of the considerations under Section 9 (supra) where repeated requests to have access to it has not been actioned by the CS.
14.	While bail is not readily available in a wilful murder charge under Section 42(6) of the Constitution, it will be granted if an applicant’s continued detention is not justified: Fred Keating v. The State [1983] PNGLR 133.
15.	Given the applicant’s leg wound which requires specialist medical treatment, and his repeated requests for CS to give him that access has failed, the Court is satisfied that his continued detention is not justified. Bail will be granted to the applicant, but on the sum of K2,000.00 as proposed by the State.  Similarly, each guarantor will pledge a sum of K500.00 as surety.
    
Order
16.	The orders of the Court are:
1.	The application for bail is granted.
2.	The applicant shall pay a sum of K2,000.00 as bail fees.
3.	The guarantor Pastor Michael Monias shall pay a sum of K500.00 surety.
4.	The guarantor John Simbi shall pay a sum of K500.00 surety.
5.	The applicant shall reside at Yawasoro, 4th Road, Wewak.  
6.	The applicant shall report to the Assistant Registrar of Wewak National Court every first Monday of each month.
7.	The applicant shall not commit any other criminal offence while on bail.
8.	The applicant shall not interfere with State witnesses and complainant.
9.	The applicant shall not consume any alcohol and/or drugs while on bail. 

________________________________________________________________
Acting Public Prosecutor: Lawyers for the State 
Public Solicitor: Lawyers for the Offender