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Dala v State [2011] PGNC 75; N4341 (2 August 2011)

N4341

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

MP 202 OF 2011

SIMON DALA & LUKE LUCAS
Applicants

V

STATE
Respondent

Goroka: Ipang AJ
2011: July 21 & 2 August

CRIMINAL LAW – Bail application – concern for Security Firm Business and welfare of employees- welfare of family – Applicants have not shown why detention is unjustified – Bail refused.

Cases cited

Philip Maru & Arua Oa v State (26/01/01) N2045
Mathew Yawa v State MP 492 of 2008

Counsel

Mr. R. Kasito, Applicant

Ms. V. Mauta, Respondent

DECISION

19 July, 2011

1. IPANG AJ: Both the applicants apply to be admitted to bail pursuant to section 6 of the Bail Act, Chapter 340. Normally such bail applications are filed pursuant to Section 6 and Section 42 (6) of the Constitution respectively.
   
2. The State alleged that on the 4th of June, 2011at seven (7) mile in Goroka, the accused persons Simon Dala and Luke Lucas both from Yobamorua village, Sinasina District of Simbu Province did each and severally willfully and unlawfully kill another person namely Aniah Gaima, thereby contravening Section 299 (1) of the Criminal Code Act.
   

BRIEF FACTS

3. The statement of facts present the following facts: On Saturday, the 04th of June, 2011 between the hours of 8:00am and 12:00midday, the applicants with two (2) others were alleged to have retaliated and killed the deceased Anjah Gaima as a payback killing on the said date after they suspected him (deceased) of killing one of their (accused) relatives namely Maima Dala on the 3rd of June, 2011 at seven (7) mile.
   
4. It was alleged that the two (2) applicants are the owner of the two(2) Security Firms here in Goroka town and had used two(2) of their vehicles to mobilize and transport two (2) accused Tommy Mote and Paul Kua and other youths to the Kakaruk market that same morning. They were searching for Anjah Gaima, but he wasn't around. So they retaliated and caused destruction to his immediate relatives.
   
5. The two (2) applicants with others then drove down to Zogizoi and found Anjah Gaima at his house. They kidnapped him, put him on one of the two (2) vehicles and drove with him all the way to seven (7) mile. There it was alleged that they started to beat him and questioned him as to who actually killed their relative Maima Dala. They wanted him to admit who killed Maima Dala.
   
6. This episode went on for some time and it was alleged Timmy Mote tied the deceased hand and body to an Avocado tree. Then, Paul Kua poured petrol on to the deceased Anjah Gaima and lit fire on to the deceased. The rope that was tied around the deceased got burnt off so the deceased using his last strength dashed for freedom to a nearby house but was over powered by the applicants and brought to the same tree. The deceased was tied again to the same tree and burnt till he died. Police were alerted and the deceased body was taken to the hospital mortuary.
   
7. The matter was reported to the police in which the applicants were apprehended and taken in to custody for questioning, in which they were formally arrested and charged.
   

THE APPLICATION

8. Both applicants filed each of their affidavits supporting their bail applications. Applicant Simon Dala filed his affidavit on the 29th June, 2011 so as the applicant Luke Lukas. Both applicants have the support of two (2) guarantors Pastor Samson Bree and David Bree who both filed their respective affidavit also on the 29th of June, 2011. These two (2) applicants have also filed their supplementary affidavits sworn and filed on the 19th of July, 2011. The applicants also relied on the supplementary affidavit of Joseph Muari sworn on the 06th of July, 2011 and filed on the 07th of July, 2011.
   
9. The applicants advance the following grounds for the grant of their bail. These are:-
   
   1. The charge is serious and that they, need to be on bail to prepare well and defend their case properly.
      
   2. That their security business operation run smoothly as scheduled and according to business plan, as there is no other trusted persons to run the businesses.
      
   100. That the welfare of the employees of their Security Firms get paid as the applicants are the sole owners and are in –charge of the finances of the businesses.
        
   4. Their family's security is guaranteed and their well- being is taken care of.
      
10. The applicants have nominated two (2) persons to be their guarantors. They are Pastor Samson Bree of eight (8) mile Local Church in Goroka, Eastern Highland Province and David Bree a businessman in Goroka town who owns Dom Kagul Services and White House.
    
11. State has objected to the applicants' bid to be admitted to bail. State relied on the affidavit of one Wesley Wise sworn and filed on the 18th of July, 2011. State also relied on the affidavit of S/C David Tibalum sworn on the 15th July, 2011 and filed on the 18th of July, 2011.
    
12. The Court in Fred Keating v The State [1983] PNGLR 133;
    

"In cases of willful murder, only those considerations set out in s.9 (1) apply, and no others, because the "interest of justice in s.3 of this Act and because s 42(6) of the Constitution does not apply to willful murder and treason cases".

13. In Philip Maru & Arua Oa v The State (26/01/01) N2045 Kandakasi J gave a useful summary of relevant principles governing bail which was adopted by Mogish, J in Mathew Yamo v The State MP 492 of 2008. The principles are worth re-stating here;

I. A person arrested and charged with an offence is entitled under s.42(6) of the Constitution to bail at any time except for willful murder and treason but bail authority still has the discretion to refuse bail if the interest of justice otherwise requires.

II. The Bail Act, chapter 340 by s.9 sets out the circumstances in which bail may be refused.

III. The existence of one or more of the circumstances, under s.9 of the Bail Act, may form the basis to refuse bail but that is not automatic. There is discretion in bail authority to grant bail if an applicant for bail is able to show by appropriate evidence that his "Continued detention in custody is not justified".

IV. The burden to produce appropriate evidence to form a foundation for a grant of bail is not a difficult and complicated one because by virtue of s.9 (2) of the Bail Act, the application of the technical rules of evidence are excluded.

V. The list of circumstances under s.9 of the Bail Act is not exhaustive and other factors such as the following may be taken into account before deciding whether or not to grant bail.

Ground (a)

14. The charge itself is serious. The statements of facts show the circumstances' leading to the death of Anjah Gaima was inhuman, barbaric and horrific.
    

Ground (b) & (c)

15. Concern of the businesses – that is a common excuse. It is not a good excuse to be allowed on bail.
    

Ground (d)

16. Family Welfare – Kandakasi, J in Philip Maru & Arua Oa's Case (Supra) stated;
    

"Finally, it is a common claim by all bail applicants that their family will suffer unless they are released from bail. There is the presumption if innocence on the one hand and on the other hand is presumption that a legitimate process has been set in motion on some proper basis. If an applicants family is put to some suffering of some sort by their arrest and detention, it is their own doing. The effects of their conduct should not form the basis for an exercise of discretion vested in a bail authority, to decide whether or not to grant bail, "advanced was not a valid ground for bail".

17. Both applicants have not shown that their detention is unjustified. They have been charged with a very serious offence consisting of serious assault, threats of violence, use of flammable substance and were with group of people.
    

Bail is therefore refused.

____________________________________

Paraka Lawyers: Lawyer for the Applicant

Acting Public Prosecutor: Lawyer for the Respondent