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Kesno v State [2012] PGNC 301; N5264 (18 July 2012)

N5264


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


MP 227 OF 2011


JULIUS KESNO


v


THE STATE


Kavieng: Batari J
2012: 16, 18 July


CRIMINAL LAW - Practice and Procedure - bail application – offence of wilful murder – no right to bail – exclusive power in National Court and Supreme Court to consider bail - objection to bail, s 9(1) of the Bail Act - onus of proof – prosecution to show one or more of those matters under s 9 Bail Act for refusal of bail – whether applicant likely to attend court proceedings – address – onus to provide fixed address of residence - evidence – strength of – relevance of against bail - applicant to show why further detention not justified – bail refused – Constitution s 42 (6), Bail Act 1977, s 9.


Bail Application


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


Cases Cited


In Re Diawo [1980] PNGLR 148
Re: Fred Keating [1983] PNGLR 133
Public Prosecutor v Vanguú Ame [1983] PNGLR 424
Re: Kou Dow [1984] PNGLR 22
The State v Paul Tarccisius Tohian [1990] PNGLR 173
Vela Wari Vele v The State (2004) N270


Counsel


B. Feihi, for the Applicant

J. Done, for the State/Respondent


RULING ON BAIL APPLICATION


18 July, 2012


  1. BATARI, J: This is an application by, Julius Kesno to be released on bail. He has been committed to stand trial under the Criminal Code on one count of wilful murder (s 229), one count of unlawfully causing grievous bodily harm (s 319) and a third count of serious assault (s 341).

Background


  1. The charges against applicant emanated from a payback incident at Landolam settlement at Lihir Island. On 23 June, 2010 he with three others attended a haus krai for a fellow Sepik man, Felix Ipun who was allegedly killed by Tanga islanders some 4 days earlier on 19 June 2010. They also learnt that some youths from Tanga Island were at the nearby Rainbird Sawmill Camp at Upper Landolam.
  2. This prompted the applicant and others to go to the Sawmill site armed with bush-knives. They detained three Tanga islanders and severely assaulted them before tying them up with ropes and abducting them in a vehicle. Whilst escorting the youths to the haus krai, a John Piki Ipun cut one of the youths on the lower back with a bush knife. As the injured youth lay agonising in the middle of the haus krai, the same person slit his abdomen open with a bush-knife. The other two youths were similarly subjected to inhuman treatment and torture. Those at the public gathering tortured the youths with fire, hot iron-bar, sticks and boots. The slashed youth died 5 days later at Lihir Medical Centre.
  3. Julius Kesno was arrested and detained for his role as one of the three principal perpetrators who orchestrated the abduction, beatings and death of the deceased.

Court jurisdiction to consider bail where no right to bail


  1. A person, exercising his or her right under s 42(6) of the Constitution may apply for bail under s 6 of the Bail Act to a court at any time after arrest, detention or at any stage of a proceeding. Section 6 however, has limited application. The provision does not extend to a person charged with treason, wilful murder and murder because of s 42(6) of the Constitution and s 3 of the Act. Section 42(6) reads:

"(6) A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require."


  1. The applicant must proceed only under s 4 of the Bail Act. This enabling provision vests in the National Court and the Supreme Court, exclusive power to deal with bail applications in relation to; (i) wilful murder and murder; (ii) any offence punishable by death; (iii) any offence committed by use of firearm. It also entitles persons charged with treason and wilful murder to apply for bail. Section 4 reads:

"(1) A person –


(a) charged with wilful murder, murder or an offence punishable by death; or

(b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or break and enter a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence,

shall not be granted bail except by the National Court or the Supreme Court."


  1. Under this provision, the applicant may be admitted to bail on the same considerations set out in s 9(1) of the Bail Act. If any one or more of those matters prescribed in s 9(1) is shown to exist, it will not necessarily follow that bail will be refused because the bail authority has the discretion to refuse bail. The Supreme Court alluded to this in, The State v Paul Tarccisius Tohian [1990] PNGLR 173:

"It is now well established by authorities that bail is a matter of fundamental right under s 42 (6) of the Constitution and must be granted readily, unless the court is satisfied on reasonable grounds of one or more of the matters set out under s 9 of the Bail Act, or unless the "interests of justice otherwise require" as set out under s 42(6) of the Constitution: Kysely v The State [1980] PNGLR 36, Re Diawo [1980] PNGLR 148. It would appear that the matters set out under s 9 of the Bail Act were intended to give effect to the words "unless the interests of justice otherwise require" in s 42(6) of the Constitution. This intention is clear from the words of s 3 of the Bail Act: see Re Keating [1983] PNGLR 133."


Applicant's grounds for grant of bail.


  1. Julius Kesno relies on his own affidavit evidence filed on 13/7/11, a supplementary affidavit filed on 23/5/12 and the affidavits of his proposed guarantors in support of his application. His reasons why he ought to be granted bail are:

State's Objection to bail


  1. The State objects to the applicant's release on bail on two basic reasons that:

Onus of Proof


  1. The State bears the onus to establish the existence of substantial grounds for the belief that one or a number of those matters under s. 9 which it relies on to oppose bail, will occur. That point was made by the Supreme Court in re: Keating [1983] PNGLR 133 where Andrew, J stated at p. 140:

"..... 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". (Underling added.)


  1. So, where the State opposes bail, it must show by evidence, the likelihood of one or a number of those events under s. 9 occurring. The State must show substantial grounds for its contention. It is not enough to rely on mere assertions. See, Re: Diawo [1980] PNGLR 148 where the Supreme Court granted the application for bail because the State failed to produce evidence to support its contention that the applicant was unlikely to appear at his trial. In Vela Wari Vele v The State (2004) N2701 Mogish J made the point that, it is not enough for the State to state its belief; it is obliged to call or rely on credible evidence to substantiate its belief.

Submissions


  1. Mr. Fehi of Counsel for the applicant has put forward a number of matters supporting his client's application for bail. Counsel submitted on the basis of the applicant's family background and farm block, that the applicant's prolonged detention is not justified. The block has been neglected after his parents' migration to Wewak and will deteriorate into dire consequences for the remaining family unit and welfare. If released on bail, the applicant will work the land and the take care of the welfare of his young family with that of his two younger siblings. He also fears his wife may be forced to leave him due to the hardship and lack of support on the family block without him.
  2. The applicant further cites lack of proper prison facilities and amenities as the basis for grant of bail. Mr. Fehi submitted that, cases of TB have been detected and treated amongst the detainees and hence, the applicant is in danger of contracting TB or other commutable diseases due to overcrowding. It is further contended that the applicant's release on bail will enable him to prepare his defence.
  3. Mr Fehi relied on Vela Wari Vele's case as being applicable to this case. The applicant there, on a charge of wilful murder, was granted bail after the court accepted his family welfare and his business interests as forming special circumstances for grant of bail. Counsel also relied on his client's undertakings and his guarantors' assertions that he will abide by all bail conditions if granted bail.
  4. In Vela Wari Vele's case, the State had opposed bail on the ground of likely interference of witnesses under s 9(1)(f) of the Bail Act. The objection to bail, like in Re: Diawo was based on mere assertions of a belief that the applicant would interfere with witnesses. The court in both cases granted bail due to failure of the State to establish by credible evidence, its assertions against bail.
  5. In this case, the grounds for objection to bail are based on the belief that the charges involved serious assault under s 9 (1) (c) (i) and that the applicant is unlikely to appear at his trial under s 9 (1) (a) of the Bail Act. Counsel, Mr. Done relied on the affidavit of Det. Sergeant Tom Baul as ascertaining proof of those matters.

Ruling


  1. It is common grounds in this application that Sepik settlers at Landolam settlement, Lihir Island abducted three young Tanga islanders one of them, the deceased, Peter Sunafam and subjected them to extreme acts of violence in apparent reprisal of a death on their side. Peter died from knife wounds while his friends sustained various grievous bodily injuries. The charge of wilful murder against the applicant arose from that incident.
  2. It is not disputed that the charges involved serious assault. The circumstances of the killing show extreme acts of physical violence against three victims resulting in a loss of life. The facts indicate a propensity of the attackers towards violence. The nature of the assault and the resultant death is also a potential source for reprisal.
  3. So, a ground for refusal of bail is reasonably made out under s 9(1)(c)(i) of the Bail Act that, the charges consist of serious assault. The inferences on a propensity towards violence and reprisal also raise the possibility of events under s 9(1)(d) and (e) occurring. The State however does not rely on those grounds.
  4. On the issue of whether the applicant will appear at his trial, the police investigator asserts that the applicant has not shown a fixed address and hence, he may not comply with reporting conditions. That belief is based on information available from the applicant's stated addresses and undertakings. The information and inferences to be drawn are also based on the applicant's own affidavits.
  5. At the time of the killing, the applicant had no fixed address at Lihir. Upon arrest and detention, he gave his home address to the police as Kabaibus, West Yangoru, East Sepik. Then in his initial affidavit supporting this bail application, he gave his residential address as Raserik Block, West Coast Namatanai but nominated Samo village in East Coast Namatanai as his place of abode. His second affidavit changed his residential location to Raserik Block, West Coast Namatanai.
  6. It is also relevant that the applicant is of mixed parentage. His parents are of Tuonimbu village, Kubalia East Sepik Province and Samo village, East Coast Namatanai, New Ireland Province. Tuonimbu village in Kubalia is in a different location from Kabaibus in West Yangoru and the parents are currently resident in Wewak. Inferences from the allegations also indicate that the applicant has very strong and close connections with his East Sepik heritage.
  7. From these observations, the applicant has optional residential locations he can choose to live or move in between. The various residential addresses have two things in common. First, none of the nominated places is at Lihir Island where he will stand trial. Second, the addresses are far from each other and from Lihir. Some locations are not easily accessible to Lihir like travelling from Wewak. Even travelling from West Coast Namatanai to Lihir, will require travel by road, then by sea (or air). And all travels will require time and costs to attend his court proceedings.
  8. Furthermore, the applicant ought to show on reasonable grounds that, he will comply with his bail conditions. For instance, he ought to show his means and ability to report at Namatanai, Kavieng or Lihir. And for that matter, he ought to show his means and ability to attend all his court proceedings at Lihir.
  9. The applicant adds to these uncertainties by asserting in his affidavit that he will seek employment to sustain his family. This means a possible employment location anywhere outside his given addresses. Despite that, he also asserts that he will remain and look after the family land block at Raserik, West Coast Namatanai.
  10. The applicant has failed to address those substantial matters raised by the State against bail on the belief that he is unlikely to attend his retrial.
  11. A further consideration against bail is the state of the evidence against him. Although the question of guilt or innocence does not arise on a bail application, and indeed the strength or weakness of the States is not one of those considerations under s 9(1) of the Act, it may be relevant to consider the strength of the evidence against the accused, the scope of the prosecution case and the probability of conviction.
  12. It is suggested and I agree that because of the limitation where s 42(6) is applicable, as in this case, the words "unless the interests of justice otherwise require" cannot be confined to matters set out under s 9 of the Bail Act: The State v Paul Tarccisius Tohian. In Re Keating [1983] PNGLR 133 Andrew J stated at p. 139:

"However by s 3, in matters other than treason or wilful murder the bail authority may still have to consider the question of the interests of justice which in my opinion may involve considerations other than those in s 9 of the Act (to which I shall shortly refer). For example, I find it surprising that s 9 contains no provision that a relevant consideration is the strength of the evidence against the defendant, the scope of the prosecution case and the probability of a conviction."


  1. In this case, the applicant is heavily implicated in the killing. He says his release on bail will enable him to prepare his defence but does not indicate what his defence is or whether he will deny the charge. He has not pointed to any special circumstances preventing him from instructing his lawyers on his defence against a wilful killing charge in which the evidence of his presence and participation is strong.
  2. His co-accused has been sentenced to 40 years imprisonment. That is relevant information. If the strength of evidence is against the applicant, the prospect of him going to jail for the same term or more if convicted may be a cause to avoid his trial. This adds to the risk that the applicant may not appear to answer his charges.
  3. The applicant must show that his further incarceration is not in the interest of justice. He must show reasonable cause supported by compelling evidence of special reason or circumstances why judicial discretion should be exercised in his favour.
  4. His assertions that he will attend his trial and that he has nominated two guarantors to show for that is not sufficient. This is because of the uncertainty of a confirmed residential address, uncertainty of undertakings to comply with reporting conditions and the absence of information supporting his ability to attend all his court proceedings. This is vital because his various given addresses are outside Lihir Island.
  5. On the issue of health, I am satisfied that there is threat of contracting TB and other commutable diseases amongst the inmates at the Kavieng CS prison due to overcrowding. It is also clear from the same report before the Court on this issue that authorities are closely monitoring the situation and responding appropriately to curb the spread of TB and other diseases amongst detainees.
  6. Hence, I am not satisfied for now that the applicant's health is an overriding factor for special circumstance consideration. Catching TB or other commutable disease remains a threat. Even if the risk is real, the applicant has not convinced me on reasonable grounds he will remain in one location and that he has the ability to attend all his bail conditions and to attend all his court proceedings.
  7. Besides, the effect of the applicant's custody on his wife and child, his two siblings and parents has not been convincingly articulated. Those factors submitted in the run-of–the-mill fashion remain vague.
  8. The affidavits do not state specifically or relate to examples and instances of difficulties that have been or will be encountered in the family well-being or the maintenance of their block. The assumption is always that, in close-knit communities such as we have in Papua New Guinea, there is no shortage of helpers for the family and children if a parent or breadwinner is not immediately available due to detention, imprisonment or death. See, Public Prosecutor v Vanguú Ame [1983] PNGLR 424.

Conclusion


  1. The applicant ought to show reasonable grounds that, his further detention is not justified. He must show his health, his family welfare, employment, are such that grant of bail must be given in the interests of justice. He has failed to show special circumstances based on these factors. He has also not shown that his detention would prejudice his defence or deny him the opportunity to adequately prepare his defence.
  2. In summary, the State has shown substantial grounds for believing that two of those matters under s 9(1) of the Bail Act exist. There is also substantial ground for believing that evidence against Julius Kesno is compelling and that he has not specifically denied the charge. Conversely, Julius has not shown he will likely attend his trial. He has also not shown serious cause why his further detention in custody is not justified or a cause for believing that those matters raised by the State are engrossed by the interest of justice in his favour.
  3. In arriving at this conclusion, I note in passing that the applicant's third co-accused was granted bail early this year. The reasons for grant of bail are not before the court. The conditions imposed are also not disclosed. Although different considerations may apply where different applicants are jointly charged with the same offence, common factors and concerns may exist to warrant a grant or refusal of bail. Hence, disclosure of reasons for grant or refusal in one bail application is relevant consideration in the other where applications are separately made.
  4. The Application is refused.

__________________________________________
Paul Paraka Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent

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