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Bail Applications by Elizah Arek [2025] PGNC 401; N11537 (20 October 2025)

N11537

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BA NO. 576 OF 2025

IN THE MATTER OF BAIL APPLICATIONS BY ELIZAH AREK

MADANG: NAROKOBI J
14, 20 OCTOBER 2025

BAIL – nature of right to bail – Constitution, Section 42(6) – Bail Act, Section 4, 6 and 9 – exercise of discretion whether to grant bail.

The applicant, Elizah Arek, applies for bail under ss 4 and 6(1) of the Bail Act Ch 340 and s 42(6) of the Constitution. He was charged with one count of wilful murder under s 299 of the Criminal Code for killing the deceased with a bush knife in a mob attack and burning his house and later attempting to conceal his body. Amongst the reasons advanced for bail are overcrowding, shortage of food, he was assaulted and there is an outbreak of TB.

Held

Bail is refused as the commission of the alleged offence involved serious assault with the use of an offensive weapon. These are factors set out in s 9 of the Bail Act, that suggests that the interest of justice does not favour the grant of bail. Considerations set out in Kange v The State (2016) SC1562 also apply to the present case, in that the reasons advanced by the applicant for bail can be attended to by the Correctional Institution.

Cases Cited
Fred Keating v The State [1983] PNGLR 133
Kange v The State (2016) SC1562

Counsel
C Momoi, for the applicant
J Kasse, for the State

RULING ON BAIL APPLICATION

1. NAROKOBI 1: The applicant Elizah Arek applies for bail under ss 4 and 6(1) of the Bail Act Ch 340 and s 42(6) of the Constitution.
   
2. The bail application is strongly objected to by the State.
   
3. The applicants have been charged under s 299 of the Criminal Code for wilful murder. The allegation is that on 24 June 2024 the applicant in the company of his brothers, killed the deceased by cutting him, then burning his house and attempted to conceal his body.
   
4. The applicant criminal matter is still with the District Court, he has not been committed to stand trial. He has been in custody since 15 December 2024.
   
5. Section 42(6) of the Constitution states:

(6) A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

6. Section 42(6) states that a person is entitled to bail, unless the interest of justice requires otherwise. This right to presumption to bail does not apply to a person charged with treason or wilful murder.
   
7. Section 4 of the Bail Act provides for the type of offences a person is charged can only apply to the National Court or Supreme Court to hear and decide.
   
8. Section 6 of the Bail Act allows an applicant to apply for bail at any time following detention.
   
9. Section 9 of the Bail Act states that the bail authority shall not refuse bail unless one of the following conditions exist:
   • that the person in custody is unlikely to appear at his trial if granted bail;
   • that the offence with which the person has been charged was committed whilst the person was on bail;
   • that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of-
     
     1. a serious assault; or
     2. a threat of violence to another person; or
     3. having or possessing a firearm, imitation firearm, other offensive weapon or explosive;
        
   • that the person is likely to commit an indictable offence if he is not in custody;
   • it is necessary for the person's own protection for him to be in custody;
   • that the person is likely to interfere with witnesses or the person who instituted the proceedings;
   • that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;
   • that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;
   • that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody;
   • that the alleged offence is one of breach of parole.
     
9. In the case of Keating v The State [1983] PNGLR 133, the Supreme Court held that the bail Court still has a discretion, even if one of the conditions set out in s 9 of the Bail Act exists.
   
10. The applicant applies for bail for the following reasons:
    • The cell block is overcrowded.
    • Shortage of food.
    • Outbreak of TB.
    • Attacked and severely beaten.
    • Pledge K1,000.00 bail.
    • He will reside in Madang town, Madang Province.
    • His guarantors are responsible persons.
      
11. The State submits that bail should not be granted for the following reasons:
    
    • The alleged offence consists of threats of violence.
      
    • Offensive weapons was used in the commission of the offence.
      
      • The second officer in charge at Beon Correctional Institution, Inspector Clement Bandiniaka, says that the Institution is not overcrowded, there is enough food and if there is any serious medical condition, the detainees are brought to Modilon General Hospital for treatment.
        
      • Detective Sergeant Martin Howley states in his affidavit that the applicant is accused of a serious offence, he was apprehended and did not voluntarily surrender. There is a likelihood that the applicant will abscond bail.
        
12. The State further submits relying on Kange v Independent State of Papua New Guinea (2016) SC1562 that issues of threats of assault, intimidations, harassments, or personal injury or death to a prisoner or a remandee by other prisoners or remandees is not a circumstance that warrants the grant of bail but appropriate measures to be taken by the Correction Services.
13. The applicant has been charged for wilful murder. The presumption to bail under s 42(6) of the Constitution does not apply to the applicant.
    
14. I have given much weight to the circumstances surrounding the commission of the offence. Serious assault was involved and an offensive weapon was used. These are factors set out in s 9 of the Bail Act, that suggests that the interest of justice does not favour the grant of bail. Considerations set out in Kange v The State also apply to the present case. I will therefore refuse bail.
    
15. The applicant is at liberty to apply for bail under s 13 of the Bail Act if there is a change in his circumstances. If he has not been committed by March 2026, a fresh application can be made then.
    

Ruling accordingly
__________________________________________________________
Lawyer for the applicant: Public Solicitor
Lawyer for the State: Acting Public Prosecutor