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Atingi v Joshiah [1982] PGLawRp 432; [1982] PNGLR 286 (19 May 1982)

Papua New Guinea Law Reports - 1982

[1982] PNGLR 286 - Ipara Natesa Atingi v Temi Joshiah�

[1982] PNGLR 286

N396

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IPARA NATESA ATINGI

V

TEMI JOSHIAH

IN THE MATTER OF THE BAIL ACT 1977

Wabag

Gajewicz J

19 May 1982

CRIMINAL LAW - Practice and procedure - Bail application - Wilful murder - No right to bail unless exceptional circumstances - Bail Act 1977, ss. 3, 4, 9 - Constitution s. 42(6)[li]¹.

An applicant for bail who is charged with wilful murder is not entitled to bail unless it is shown that there are either special or exceptional circumstances.

Application for Bail

This was an application for bail made pursuant to s. 4 and s. 9 of the Bail Act 1977.

Counsel

M. Tamutai, for the applicant.

F. Damem, for the respondent.

Cur. adv. vult.

19 May 1982

GAJEWICZ J: Ipara Natesa Atingi who is charged with wilful murder applied for bail under s. 4 and s. 9 of the Bail Act 1977.

In support of the application Mr. Tamutai who appeared for the applicant submitted as follows:

N2>1.������ The applicant belongs to a clan, or a sub-clan, which is not, and was not at any relevant time an enemy of the clan, or the sub-clan of the victim;

N2>2.������ The applicant is not related to a man Joseph Nana who earlier during these sittings pleaded guilty before me to murdering the same victim;

N2>3.������ The applicant is in fact an enemy of Joseph Nana;

N2>4.������ The applicant has two wives and five children;

N2>5.������ The applicant is of an unblemished character;

N2>6.������ The applicant is a Village Court Chairman and is responsible for eight Village Court magistrates, two peace officers and one clerk;

N2>7.������ The applicant was elected to the office for a certain period of time and would act as chairman if released on bail;

N2>8.������ The killing took place when a compensation settlement before another Village Court was interrupted by heavy rain. The applicant admits that he was in the vicinity when the victim was killed, but he emphatically denies that he took any part whatsoever in the killing;

N2>9.������ The applicant was arrested on 4th March, 1982, and has been in custody since then;

N2>10.���� The nearest police station is some 10km from the applicant�s village and is connected by a road;

N2>11.���� The applicant is able to deposit Two hundred kina (K200) in cash if bail is granted, but is unable to obtain a guarantor.

Mr. Damem who appeared for the respondent opposed the application on the grounds that:

N2>1.������ The alleged act or acts constituting the offence in respect of which the appellant is in custody, namely wilful murder, is a serious assault; s. 9(1)(c)(i) of the Bail Act 1977;

N2>2.������ The applicant is likely to interfere with State witnesses if granted bail; s. 9(1)(f) of the said Act; and

N2>3.������ It is necessary for the applicant�s own protection that he remains in custody; s. 9(1)(e) of the said Act.

Mr. Damem also informed me that the applicant would be tried in July 1982 which was the next criminal sittings of the National Court to be held at Wabag.

I asked Mr. Damem to ascertain whether any of the intended witnesses for the State reside in a locality which is under the jurisdiction of the Village Court of which the applicant is the Chairman. After a brief adjournment Mr. Damem informed me that the area of the Village Court in question was, after the killing, split into two separate Village Courts and that only one witness is not residing in a locality which is under the jurisdiction of the Village Court of which the applicant is the Chairman but the other witnesses are residing within the jurisdiction of that court.

Mr. Damem also informed me that the police were trying to locate the appellant in his village, but could not find him. Sometime later, the applicant was recognized by relatives of the victim at Mount Hagen during a sing-sing ceremony where he was arrested and brought to Wabag. Mr. Damem said that in view of that he would also rely on s. 9(1)(a) of the Bail Act, namely that the applicant is unlikely to appear at his trial if granted bail.

Mr. Tamutai submitted that the police were initially given a similar sounding but a different name from that of the applicant and the man of that similar sounding name could not have been found. The applicant was all the time in his village and was not aware that police were looking for him. The applicant�s trip to Mount Hagen was done quite openly and there was no attempt to evade the police.

I informed both counsel that I accepted Mr. Tamutai�s submission on that point.

I refuse the application for bail on the ground that on my reading of s. 42(6) of the Constitution, when read together with ss. 3, 4 and 9 of the Bail Act 1977, it appears that the applicant, being charged with wilful murder, which is one of the offences specified in s. 42(6) of the Constitution and s. 3 of the Bail Act, is not entitled to bail unless it is shown that there are either special or exceptional circumstances. In my view the matters put to me by Mr. Tamutai on behalf of the applicant, taken either separately or cumulatively, do not show any special or exceptional circumstances.

I hold that under s. 4 of the Bail Act I would grant bail notwithstanding that the very nature of the charge of wilful murder indicates that the alleged act must necessarily consist of �a serious assault� as set out in s. 9(1)(c)(i) of the Bail Act, which is one of the grounds specified in s. 9(1) of the Act why bail could be refused.

Bail refused.

Solicitor for appellant: Public Solicitor.

Solicitor for respondent: Public Prosecutor.