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Dua v Police [1984] PGNC 21; [1984] PNGLR 22 (9 February 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 22 - Kou Dua v Police�

[1984] PNGLR 22

N450(L)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

RE KOU DUA

Waigani

Kidu CJ

7-9 February 1984

CRIMINAL LAW - Practice and procedure - Bail application - Following committal for trial - Offence of wilful murder - Onus of proof - Applicant to show cause why detention not justified - Onus not discharged - Bail Act 1977, s. 9.

An applicant for bail who had been committed to stand trial for the wilful murder of his wife, as a result of a deliberate stabbing causing death, gave his reasons for seeking release from custody as being:

N2>(a)����� to settle the problem of the custody of his small child, who had been the subject of a fight between grandparents;

N2>(b)����� the need to retrieve and hand over hidden money belonging to his village club; and

N2>(c)����� threats to his life by two inmates of the jail.

Held

N1>(1)����� As the acts constituting the offence consisted of a very serious and grave assault on the deceased with a knife it fell within s. 9(1)(c) of the Bail Act 1977, and the onus was on the applicant to show why his custody in detention was not justified.

Re Keating [1983] P.N.G.L.R., 133 applied.

N1>(2)����� The applicant had not discharged the onus upon him and the application should be refused.

Bail Application

This was an application for bail following committal for trial on a charge of wilful murder.

Counsel

I. Nwokolo, for the applicant.

P. A. L. Boyce and S. Maunsell, for the State.

Cur. adv. vult.

9 February 1984

KIDU CJ: The applicant is charged with the wilful murder of his wife. He was committed to stand trial for this offence on 9 December 1983 by the Port Moresby District Court.

In his application he has given three reasons why he wants to be granted bail pending the hearing of his case:

N2>(1)����� That his small child is now the subject of a fight between his parents and his wife�s parents and he wants to be released from custody to settle this problem;

N2>(2)����� That he is the treasurer of the Village Club and some of the moneys belonging to the club are mixed up with his own and he had hidden that money and he would like to go out of prison and get this money and give it to the club;

N2>(3)����� That he has been threatened by two inmates of the Bomana jail.

In the case of Re Keating [1983] P.N.G.L.R. 133, the Supreme Court last year held that in the case of a bail application of a person charged with wilful murder if any one or more of the criteria in s. 9 of the Bail Act 1977 is or are shown to exist the onus is then on the applicant to show why he/she should be granted bail.

The evidence against the applicant comes from five eye-witnesses and the accused himself. The prosecution case is very substantial that the applicant deliberately stabbed his wife twice and caused her death. He himself in his record of interview admitted that he was going to kill his wife and at the time he said this he had a knife in his hand and later on he did so. So there is no doubt that this case then comes under s. 9(1)(c) of the Bail Act � that is that his acts which constituted the offence consist of a very serious and grave assault on the deceased with a knife. As was said by Andrew J. (with whom I agreed) in Keating at 133:

�... or, put in another way, before the discretion to refuse bail arises, the court has to be satisfied that there are substantial grounds for believing that one or more of the events described in s. 9(1)(a), (b), (c), (d), (e), (f) or (g), will happen. It is the existence of substantial grounds for the belief, not the belief itself, which is the crucial factor: See R v. Slough Justices; Ex parte Duncan and Another (1982) 75 Cr. App. R. 384.

In my judgment the use of the word �shall� in s. 9(1) of the Act shows that it can be seen that the bail authority must refuse bail if one or more of the conditions are proved unless the defendant shows cause why his detention in custody is not justified. Such an exercise is always discretionary.�

The applicant, in my view, has failed to show cause why his detention in custody is not justified. The reasons he advanced were more or less dismissed by me during submissions by Dr Nwokolo.

They are most definitely not accepted by me. If his child is being looked after by his deceased wife�s parents then his mind should be at rest that someone is looking after the child. If his own parents want to take the child then they should negotiate with the deceased woman�s parents. Anyway what could he do about such a dispute? He would only make it worse if he were to intervene. After all he has been charged with killing the child�s mother.

He says he wants to get out to return money he has been looking after for his village club. The simplest thing for him to do is tell someone either verbally or in writing where the money is and I am quite certain that would be all that he has to do.

The third reason he advanced in support of his argument was on more than two occasions two fellow inmates at Bomana had picked fights with him and threatened him. These two inmates are Jobu Alo and Talobu Kipopana. He did not report these incidents for fear that they might carry out their threats to kill him.

No reasons have been advanced why these two should threaten him except that he had fought with them sometime before they were remanded in custody. I am not satisfied that this is true � that his life has been threatened in jail. If it has been it should be reported to the authorities at Bomana and the two men and the applicant separated. In case there is truth in the applicant�s allegations I shall write to the Officer-in-charge of Bomana about the matter and request that the applicant and the other two men be separated and kept in separate divisions.

The application is rejected.

Application rejected.

Lawyer for the applicant: I. Nwokolo.

Lawyer for the respondent: L. Gavara-Nanu, Public Prosecutor.