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Olape v The State [1998] PGNC 80; N1890 (7 August 1998)

Unreported National Court Decisions

N1890

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP NO. 426 OF 1998
IN THE MATTER OF AN APPLICATION FOR BAIL PURSUANT TO S. 6 OF THE BAIL ACT CH. NO. 340
BETWEEN: PAUL OLAPE
(APPLICANT)
AND: THE STATE
(RESPONDENT)

Waigani

Kirriwom J
6-7 August 1998

Cases Cited

Keating v The State (1983) PNGLR 133

In Re Kou Dua (1984) PNGLR 22

Bernard Juale v The State - MP No. 214 of 1997

Re Samir Taleb Abdullah Jaber Anabtawi [1980] PNGLR 195

Counsel

J. Tonge for the Applicant

T. Suwae for the Respondent

7 August 1998

KIRRIWOM J: This is an application for bail pending committal. The applicant, who is charged with wilful murder, applies to this Court to be admitted to bail as bail is not available to him as of right. Under section 4 of the Bail Act wilful murder is one of those offences that bail is not available automatically from any bail authority except from the National Court or the Supreme Court on application. Section 9 of the Bail Act says that the bail authority shall not refuse bail unless it is satisfied on reasonable grounds as to one or more of the considerations set out in subsection (1)(a) to (j).

Ms Suwae who opposes bail submits that the offence charged involves serious assault and she further submits that it is also for the applicant’s own protection. The basis for her second argument is that the offence is accompanied by most brutalising circumstances of which two persons are already serving life sentences and the applicant was only recently apprehended after a long investigation by the Police. She submits that with the arrest of the applicant there is likelihood of renewed escalation of tension between the rival ethnic groups and that the police cannot guarantee his safety while he is at large.

The summary of facts in support of the wilful murder charge alleges that the accused planned and organised a gang attack on one Peter Marinae and his family at 8 Mile Settlement on 3rd March 1997. In execution of this plan the accused led a group of warriors numbering between 20 - 30 from Tari and Wabag into the Morobe block. Between 3:00 am and 4:00 am the accused and the gang of warriors forced their way into the house of Peter Marinae and killed him with his wife Margaret and another relative one Morris Benigi. After killing them they set the house alight with all the three bodies inside which were consumed in the inferno of the burning house. Two of the warriors who were with the accused have been convicted and are now serving their sentences in prison. The accused was arrested on 30th July 1997 and charged in relation to this same incident and remanded in custody at Bomana Prison.

From the supporting Affidavits filed in this application I deduce the following to be the grounds relied upon by the Applicant:

1. &ـ T60; That heat he is a married man, 33 years old with child and has been resident in Port Moresby for 17 years.

2. &##160; T60; That he ss a emlf-yedloyed businessman operating trade store aile settlement and at one sone stage also at Erima.

3. ټ That he is a communommunity leader and activevolvesettlnd solv solving ding disputisputes amongst Southern Highlanders in both 8 Mile and Erima.

4. ټ&#m6 coad leadd a la a law-abid-abiding cing citizeitizen in Erima he assisted the Police in the apprehension of crime suspects wanted by police.

Bothappli#8217fe Madeline Olape and cousin brother Taer Tala Pala Paul alul also deposed to Affidavits supporting the applicant’s release on bail and verbally assuring the Court that the Applicant is not the type of person who would jump bail or abscond if released.

This is no doubt a serious charge. But whether or not the accused is guilty as charged is the matter for evidence to determine in due course. He is innocent until proven guilty. However, the law under the Bail Act is clear. He can only be granted bail by the National Court or the Supreme Court. What does the Constitution say about his right to bail? Section 42(6) of the Constitution says that a person who is arrested or detained for an offence (other than treason or wilful murder as defined by an Act of Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interest of justice otherwise require. Constitution guarantees right to bail at all times for all offences except for treason and wilful murder unless the interest of justice otherwise require. What this means here is that the applicant here is not entitled to bail and the question of interest of justice does not even apply to him. This is one view. The other view is as set out in Section 9 of the Bail Act referred to earlier which says that bail shall not be refused unless the Court is satisfied as to one or more of the considerations enumerated in paras (a) to (j) of sub-section (1) of s. 9 of the Act. But the Bail Act must be read subject to the Constitution. These issues were discussed by the Supreme Court in Keating -v- the State (1983) PNGLR 133. This case also involved a charge of wilful murder and whilst the Supreme Court acknowledged the superiority of the Constitution over the Bail Act, it nevertheless held that Section 42(6) did not take away the Court’s discretionary powers to grant bail even in wilful murder cases. In that case the Supreme Court presided by the then Chief Justice Sir Buri Kidu, Kapi DCJ and Andrew J came to the same conclusion refusing bail but for different reasons. Kidu CJ refused bail because the offence involved use of violence and of the likelihood of interference with witnesses. Kapi DCJ found that the acts constituting the offence involved serious assault. Both their Honours came to the conclusion based on the considerations in s. 9 of the Bail Act whereas Andrew J refused bail because the accused failed to show good reasons for wanting bail and also he failed to show that his detention was not justified. In Re Kou Dua (1984) PNGLR 22 Kidu CJ refused bail to the Applicant because the acts constituting the offence consisted of a very serious and grave assault on the deceased with a knife and this fell within s. 9(1)(c) of the Bail Act 1977 and the applicant failed to show why his detention in custody was not justified. The Applicant was charged with wilful murder of his wife by stabbing her with a knife two times causing her death. His reasons for seeking bail were (1) that he had to settle the problem of custody of their small child who was the centre of a dispute between the grandparents (father’s and mother’s parents) as to who should have the child (2) that certain monies belonging to a village group was hidden away by him that he needed to retrieve and hand-over to the owners and (3) that he had been threatened by the inmates in the jail.

In Bernard Juale -v- The State MP No. 214 of 1997, (Unnumbered Judgement of 17th June, 1997) an applicant for bail in a case of almost identical or similar gravity as this one came before me only a year ago. The Applicant was a police sergeant who was alleged to have conspired with some criminal elements of the society for them to kill his wife. Acting according to that planned conspiracy the accused drove his wife to Five Mile Service Station Boroko Drive and leaving her sitting in the car with the children he went into the store. While he was in the shop, his friends pulled up beside his vehicle and shot his wife at point blank killing her instantly in the full view of her children. Two of those involved were convicted of wilful murder and were sentenced to jail. The applicant was charged after an extensive investigation into the murder. He applied for bail pending committal and relied on these reasons:-

1. ;ټ Since tnce the deae death of the mother, he was both the mother and father to the children. There was no one to look after them.

2. ټ His lifed be nger ger were tere to be o be kept kept in custody being a policeman.

3. ;ټ He need needed to d to be at large der ttructwyer fend him.

Extensive evve evidentidentiary iary matermaterials were tendered in that case by both sides. After weighing all theence he suions, Ins, I foun found thad that there was likelihood of the applicant interfering with witnesses and the conduct of the investigations that were still continuing and that the Applicant failed to show that his detention in custody was not justified. Bail was therefore refused.

In the case before me now the applicant seeks bail and his reasons are that he is a responsible law abiding citizen with substantial business interests in trade stores in the city at 8 Mile Settlement and at Erima at one time and that he will not abscond. He offered K1,000 cash surety for bail and is supported also by two guarantors who pledge K500.00 each as their indication of belief and trust in the Applicant. They promised to ensure that the applicant observes his bails conditions. Against his reasons for wanting bail I must look at the seriousness of the offence in the light of the facts before me. This case is one of a mass massacre of a family in the most brutal and gruesome way imaginable. A whole family was extinguished from existence by a band of ‘warriors’ in a carefully planned attack for which the evidence before me portrays the applicant herein as the ringleader or the man behind the killings. He is said to have planned it and led the 20 - 30 men to carry out the execution.

What makes this case more serious and labels it as of equal gravity as in Bernard Juale’s case referred to herein is that the Applicant is not simply one of the 20 to 30 warriors who attacked the Marinae family. He is the principal offender as the counsellor and procurer of this heinous crime. That is the allegation as I perceive it from the brief facts provided. At his instigation this horrid execution of the Marinae family was perpetrated in such cold-blooded and ruthless fashion. In terms of criminal culpability, he bears greater liability than the executioners of the common design. It is therefore a misconception of the facts provided in support of the information when counsel for the applicant submits that ‘the offence itself does not involve the accused but it was an offence committed by about 20 to 30 warriors before dawn’. The applicant’s complicity in the alleged offence is as the man behind the plan, although it is also alleged that he himself led the attack. Therefore it is immaterial whether there is or there is no evidence of the actual method used by the Applicant to kill the victims. In fact as the counsellor and procurer, he is liable to be charged for three deaths, not just one and this fact alone makes the case against him more serious than if he was just an aider and abettor. This is how grievous the charge is as against him.

I am therefore minded to give some weight to the submission by the State about the potential danger of a renewed ethnic clash between the groups following the arrest of the applicant. I think there is some substance in the argument that the applicant’s detention in custody is necessary for his own protection. But it is not simply for his protection, it is also for the benefit of the wider community, for preservation of peace and order amongst all peace-loving people at 8 Mile Settlement and in the city of Port Moresby. From the same incident two persons are already serving jail sentences. Whatever their standing was in the community before the incident is unknown but for the applicant to be charged as the man behind the trouble, his standing in the community alone is sufficient to spark off fresh emotions. I think this Court will be acting irresponsibly by giving little or no regard to these considerations. I therefore do not accept counsel’s submission that from March 1997 to the date of his arrest, there was no sign or threat of imminent danger to the applicant. That was a different time and some suspects were already in the hands of the police, two of whom are now serving sentences. But this is another time and the allegation singles out the applicant as the key figure and that places him in a more vulnerable position as a potential target for pay-back or revenge. There is no doubt that for such a brutal multiple murder like this, the wounds will take long time to heal. Courts cannot be too insensitive to human weaknesses when emotions run high and I take this factor into account.

Whilst I appreciate that the onus is on the State to prove that the Applicant’s own life is at risk and his detention in custody is for his own safety (see Re Samir Taleb Abdullah Jaber Anabtawi [1990] PNGLR 195), in the overall view of the case, I am satisfied that it is necessary for the applicant’s own protection that he remain in custody. I am not bound to apply technical rules of evidence under the Bail Act to decide whether the State had tendered any formal evidence to substantiate these fears suffice however that I am satisfied on the information before me of the potential risk of violence imminent as a flow-on from the applicant’s arrest. There is even possibility of his release on bail being misconstrued that may lead to more violence and blood-shed. The onus is therefore on the applicant to satisfy the Court that the fears expressed are unfounded. The applicant has failed to convince me on this. Perhaps when circumstances change it may be necessary to pursue the application again. But for now, I am not inclined to grant bail to the accused as I believe that it is necessary for his protection that he is remanded in custody as I find that the consideration stipulated in s. 9(1)(e) of the Bail Act has been established. Furthermore, the alleged acts constituting this offence or series of offences consist of serious assault of a brutal and barbaric nature against humanity. All in all the applicant has failed to convince me that his detention in custody is not justified and I therefore refuse bail.

Ordered accordingly.

Lawyer for the Accused/Applicant: Ame Lawyers

Lawyer for the State/Respondent: Public Prosecutor