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Peng v Independent State of Papua New Guinea [2010] PGNC 138; N4134 (21 September 2010)

N4134

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

MP NO 320 OF 2010

IN THE MATTER OF AN APPLICATION FOR BAIL PURSUANT TO
SECTIONS 4 AND 6 OF THE BAIL ACT, CH 340 AND SECTION 42(6) OF
THE CONSTITUTION

BETWEEN

JOHN PENG
Applicant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Minj: Makail, J
2010: 20th & 21st September

PRACTICE & PROCEDURE - Bail - Applicant charged for wilful murder and attempted murder - Bail not available as of right to a person charged for wilful murder - Discretionary - Exceptional case must be established - Grounds for bail - Whether exceptional case established - Constitution - Section 42(6) - Bail Act, Ch 340 - Sections 4, 6, & 9.

Cases cited:

Re: Fred Keating -v- The State [1983] PNGLR 133
Paul Guant -v- The State (2009) N3576

Counsel:

Mr F Kirriwom, for Applicant
Mr M Ruari, for Respondent

RULING ON BAIL APPLICATION

21st September, 2010

1. MAKAIL, J: The applicant applies for bail following his arrest and charge for wilful murder of another person by the name of Pastor Dos Nonogo and attempted murder of another by the name of Joshua Dos at Pulgmung village in Tambul District on 07th February 2010. The application is made pursuant to section 42(6) of the Constitution and sections 4, 6 and 9 of the Bail Act, Ch 340.

2. According to the summary of facts attached to his affidavit filed on 21st July 2010, the State alleged that the applicant was standing beside a road at Pulgmung village. With him were four accomplices who hid nearby. The applicant and his accomplices were armed with bush knives. The deceased approached the applicant and asked the applicant why he chopped his daughter by the name of Rachael Dos. Without a reply, the applicant produced his bush knife and chopped the deceased on his leg and jaw. As a result, the deceased died.

3. The brief facts depict a case of serious assault of another person with an offensive weapon by the applicant. It is a case where the applicant is alleged to have seriously assaulted the deceased with a bush knife resulting in the death of the deceased. The allegations also suggested that it was a surprise mob attack on one person as there were four other accomplices present with the applicant at the material time. The allegations further suggested that the applicant had earlier assaulted the deceased's daughter by chopping her with a bush knife. In my view, the presence of serious assaults on two different victims with an offensive weapon are sufficient reasons for refusal of bail under section 9(1)(c)(i)-(iii) of the Bail Act, Ch 340.

4. Further and more importantly, section 42(6) of the Constitution states that bail is not available as of right to a person charged for wilful murder. It is granted at the discretion of the Court and the Courts have in the past considered bail for applicants charged for wilful murder by applying the exceptional circumstances test. In other words, an applicant charged for wilful murder must establish to the satisfaction of the Court that his or her continued detention is unjustified: see Re: Fred Keating -v- The State [1983] PNGLR 133.

5. In the present case, the applicant has been charged for wilful murder and attempted murder. As far as the charge of wilful murder is concerned, bail is not available to him as of right. He must therefore establish that there are exceptional grounds present in his case before bail can be granted. He has advanced three grounds in support of the application. They were:

1. He and his line had paid compensation of K12,000.00 to the line of the deceased as a symbol of peace;

2. Prolong detention prejudicial to his effort to organize and pay a further undisclosed form of compensation to the line of the deceased; and

3. He is a respected member of the local community because he holds a position of teacher and headmaster of Tambul community school.

6. The State has not opposed the application but had asked for strict bail conditions including K500.00 cash surety to be paid up front by each of the applicant's guarantors, namely Councilor Joe Monga and Opis Yak if bail is granted. Although the State has not opposed bail, it does not necessarily mean that bail should be granted as a matter of course. Albeit, the applicant must establish that there are exceptional grounds present in his case before he may be granted bail.

7. Turning to the first ground, I am not satisfied that payment of substantial compensation to the line of the deceased as a symbol of peace amounts to an exceptional ground for bail. In my view, it is not an exceptional ground to justify grant of bail. For all its worth, it is simply evidence of the applicant's genuineness and desire to restoring peace and harmony between his line and the deceased's line following the alleged killing. Payment of compensation is a common practice in settling conflicts in this part of the country. It is done to stop serious repercussions such as pay back killing or destruction of properties by the line of the deceased. But I do not see any connection between payment of compensation and the applicant's request for bail. Further, I have not been referred to any case authority by the applicant's counsel to support his argument that substantial compensation made to the line of a deceased to broker peace between the conflicting parties is an exceptional ground for bail. I reject this ground for these reasons.

8. As for the second ground for bail, I am also not satisfied that it is an exceptional ground for bail. If the applicant seeks to organize and pay additional compensation to the line of the deceased, that is a matter for him to take up at anytime. As I observed earlier, payment of compensation by an applicant and his line to the line of a deceased is evidence of genuineness and desire to restore peace and harmony between the two conflicting parties. Any further compensation is further evidence of that genuineness and desire to restore peace and harmony between them. But I fail to see the connection between the applicant's efforts on restoring peace and his request for bail. I made similar observations in Paul Guant -v- The State (2009) N3576 with particular reference to the security and safety of the applicant. I observed at pp 13 and 14 that:

"Lastly, if the Applicant is granted bail, I believe the Applicant's security and safety is at risk. But the Applicant says that his life is not at risk or in danger because his relatives had paid compensation to the relatives of the deceased. He says that his relatives gave K6,000.00 cash and 6 pigs worth K1,500.00 each. As a result, both sides are at peace and life is back to normal again.

Be that as it may, there is a matter that concerns me and I wish to comment on before I decide whether or not the Applicant's security and safety is not a concern for all. That matter is the compensation culture. It is common in this part of the country. In some ways, it is a good culture but in other ways, it is not. It is bad cultural practice if it is used to buy ones way out of the law so to speak; that is to avoid criminal responsibility.

Putting it in the context of a bail application like in this case, it is used to make peace with the relatives of the deceased. In my view, at the same time it acts as a leverage to seek bail at the expense of ones safety. If it acts as a leverage to seek bail, this is where it is a bad cultural practice. I think ones safety should not be compromised simply because compensation is paid to the relatives of the victim or deceased as a mark or symbol of peace. In my view, whilst compensation is a mark or symbol of peace, it cannot act as a substitute for an Applicant's security and safety."

9. For these reasons, I am of the view that the applicant's request to be released on bail to organize further compensation for the deceased's line is not an exceptional ground. Further to that, I am not aware nor have been referred by the applicant's counsel to any case authority to support this ground and I reject it.

10. In relation to the final ground for bail, I am also not satisfied that it amounts to an exceptional ground for bail. In my view, anyone can claim to be a respected member of the community or held in high esteem by others in the community. Further, even witnesses may testify that an applicant is a respected member of the community or held in high esteem by others in the community. But that does not change the fact that the applicant is charged and detained for committing an alleged offence or offences. Again, I am not aware nor have been referred by the applicant's counsel to any case authority to support this ground and I reject it.

11. In the end, I am not satisfied that the application has been made out. Bail is refused accordingly.
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Public Solicitor: Lawyers for Applicant
Acting Public Prosecutor: Lawyers for Respondent