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Sheekiot v State [2013] PGNC 328; N5931 (10 October 2013)

N5931

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. (App). 244 of 04-10-2013

IN THE MATTER OF BAIL APPLICATION PURSUANT TO THE CONSTITUTION S.42 (6) BAIL ACT, SS. 4, 6, 9

BETWEEN
JEFFREY SHEEKIOT & JAMES EPI
Applicants

V

THE STATE
Respondent

Waigani: Kawi-Iu, AJ
2013: October 10.

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:

Fred Keating v. The State [1983] PNGLR 133.
Kou Dua [1984] PNGLR 22
Steven Lester v. The State (2001) N2044.
Mathew Yukai Mandalo v. The State MP NO 420 of 2008 (Unnumbered & Unreported).
Mapi Mek v. The State (2008) N3511

Counsel

J Kusip, for the Applicant
H. Roalakona, for the Respondent

RULING ON BAIL APPLICATION

10th October, 2013

1. KAWI-IU, AJ: The Applicants Jeffrey Sheekiot and James Epi apply for bail following their arrest and charge for wilful murder of Ms Felin Bune F/12 yrs and attempted murder of Mrs Tenis Bune on the 19th April 2013.
   
2. The application is made pursuant to section 42(6) of the Constitution and sections 4, 6 and 9 of the Bail Act, Ch 340. I gave my brief oral ruling on 10th refusing the application and undertook to publish my full reasons later. I now publish my full reasons.
   
3. The applicants by a letter dated 4th October wrote to the Registrar of the National and Supreme Courts to arrange for a judge to hear the application today (4th October). Part of the letter reads: "Therefore we kindly request that you find a judge available to have this application heard today, and advise us and the Public Prosecutor".
   
4. The letter was written on the 4th October.
   
5. Bail Application was sworn on the 3rd and filed on the 4th October.
   
6. The affidavits in support of the application were sworn on the 3rd and filed on the 4th October.
   
7. All the documents referred to above were served on the office of the Public Prosecutor on the 4th October.
   
8. What may not be proper although urgent application can be heard on date of filing application is when such application is sought inappropriately in the sense that such request purports to direct the Office of the Registrar or the court to submit to the wishes of the party seeking such redress. The ultimate decision on whether an application is urgent or not rests with the court.
   
9. Had this application come before me on the 4th October for hearing I would have adjourned to a later date after proper service of documents on the respondent. There is nothing to show by way of evidence that the intended application is urgent.
   
10. According to the police summary of facts, it is alleged that:
    

"On the 19th April 2013 between 6.30pm and 7.30pm the two accuseds, Constable Jeffery Sheekiot and Constable Epi James were driving along Waigani Drive in a Blue Police 10 Seater Reg. N0. ZPD 071.

At that time the deceased Felin Bune F/12 yrs was in a grey Toyota Camry sedan Reg. No. BDM 380. The deceased was in the company of her family namely Tenis Bune F/A who is also the mother (sitting in the back seat), Develyn Bune F/3 yrs (sitting in the offside seat), William Bune M/1 yr 6 months (was with the mother in the back seat) and Seth Gore M/A (driver). It was alleged that the family were at Rakatani Street, Tokarara and were driving toward Koura junction when the driver slowed down to avoid a pot hole.

All of a sudden a white sedan bumped into the back of the complainant's car and the occupants' of the white car came out to assault the driver Seth Gore.

The driver of the complainant's car Seth Gore quickly got in the grey sedan BDM 380 and he drove off towards June Valley and then turn left towards Tokarara. The occupants of the white car got in their car and followed suit after the complainant's car.

The complainant's driver drove all the way from Tokarara, Dikagari street to Hohola 4 and to the junction next to RH Hohola. The complainant decided to go to Hohola Police Station as the white sedan that bumped them was still following them. The complainant's driver turned left onto Wards Road towards Holiday Inn and then turned right again and drove towards Hohola Bus Stop to Hohola Police Station.

The suspected white car stopped on the side of the Wards Road heading towards Holiday Inn and the occupants ran towards the complainant's car. The driver of the complainant's car did a "U" turn onto the traffic island onto Wards Road leading to Holiday Inn. As the driver of the complainant's car turned around the occupants of the pursuing white car smashed the offside side glass of the complainant's car Reg. BDM 380.Gore's car. The complainant's driver drove on towards Holiday Inn and the occupants' of the white car got in their car again and pursued after the complainant's car.

A Police Blue 10 Seater Reg. ZPD. 071 which was driven along Ward Road intercepted the two cars as they were speeding along Wards Road towards Holiday Inn. Upon suspicion the police vehicle pursued after the two cars.

As the two cars approached the CIS Headquarters, the white car which was pursuing behind the grey sedan Reg. BDM 380 turned left towards Holiday Inn Village and the grey sedan drove straight towards the Traffic Lights at the junction of Holiday Inn.

The policeman sitting on the offside Const. Jeffery Sheekiot fired several (shots) at the grey sedan. The driver of the grey sedan could not tell if it was the police shooting at them as the back boot was up covering his view. The policeman continued to fire several shots at the grey sedan to the junction of NCDC traffic lights. The driver of the grey sedan turned right towards John Guise Drive and he realised that it was a police vehicle following him. He stopped his car next to Vision City Bus Stop and came out of the car with his hands up.

Tenis Bune also came out with her baby William in her arm crying.

The policeman assaulted the driver, Seth Gore, and he fell onto the bitumen road. Tenis Bune whilst crying informed the policemen that she was wounded on her left shoulder and her two children were still in the car. The policemen checked the grey sedan and found her daughter Felin Bune F/12 yrs sitting in the back seat. By then the policemen realised that Felin Bune was injured.

The policemen put Tenis Bune together with her two children Develyn Bune F/3 yrs and William Bune 1 yr 6 mths together with the driver, Seth Gore into the police 10 seater vehicle, and the other policeman got in the grey sedan with the deceased Felin Bune and drove to the Emergency Ward at Port Moresby General Hospital. There Tenis Bune and her daughter Felin Bune were taken to the Emergency Ward for treatment.

It was later revealed that Tenis Bune received two bullet wounds to her left shoulder. The daughter Felin Bune died and upon post mortem it was revealed that she died from bullet wounds she received through her lower back and it penetrated out of her stomach".

11. The grounds upon which the applicants relied upon are:

i. I am innocent until proven guilty according to law

ii. Given the seriousness of the charges, I need to be out on bail and properly instruct my lawyers to fight my defence competently

iii. I have many children to look after in terms of food, shelter, school fees, love and tender care

iv. I am employed – need to be at work

v. A bread winner

vi. Comes from a church background

vii. I am a church member of the Catholic faith

viii. Should the court grant me bail, I promise to observe any bail conditions imposed by the court until my case is fully determined by the court

ix My life will not be in danger in any way if I am release on bail

12. In support of their applications, they relied on their own affidavits and the affidavits of two guarantors all filed on the 4th October.

13. Generally what each of the applicant deposed in his affidavit relates to their personal particulars or their antecedents. They are both policemen attached to Boroko Police Station, married and have children.

14. They understood the seriousness of the charges and the ultimate punishment of death if convicted.

15. Further say that bail is of right and guaranteed under section 42(6) of the Constitution, and unless any of the considerations set out in Section 9 (1) of the Bail Act is present bail should not be refused. They claim that none of the consideration in s.9 (1) is present, hence the application. The fact that they are policemen makes it more pertinent to their application, so they assert.

16. The two guarantors, Sergeant Tom Maita, and Senior Sergeant Ray Mition, both attached to Boroko Police Station, are the applicants' superiors.

17. They wanted to assist the applicants to have them released from custody and in doing so acknowledged the consequences of being guarantors. Further each understood the seriousness of the charges and vowed that they will ensure all bail conditions imposed by the court on the applicants are observed. Each undertook to pay cash surety in the event applicants absconded bail.

18. Mr Kusip of Counsel for the applicants submits that the right to bail is by virtue of the Constitution s. 42(6), and that none of the impediments proposed in s. 9(1) of the Bail Act applies to their circumstances thus each should be granted bail.

19. He further submits that the applicants are policemen and their lives would be threatened when held in the police cell with other criminals. This appears to be the main focus or the central reason for filing the bail application.

20. Respondent did not file any affidavit evidence, however at the hearing counsel gave oral submission opposing bail on the basis that the offences committed by the applicants involve serious assault, threat of violence on a person, and having or possession of firearm. This is clearly stated in s. 9(1)(c)(i), (ii), (iii) of the Bail Act, and further cited the case of Re: Fred Keating v. The State [1983] PNGLR 133, where it was held that if one or more of the considerations in s. 9(1) are proved bail should be refused unless the applicant shows cause why his detention in custody is not justified.

21. Respondent further attempted to tender a document purported to be an affidavit of one Detective Constable Lenny Varage who was the arresting officer. This was objected to by the applicant as it was not served prior to the hearing and further, it was not filed and sealed by the Registry.

22. This objection was not seriously pursued, for the reason that it will not serve any useful purpose as the outcome of this application will be determined on other factors. The content of the document is nothing more than a narrative or repetition of what is already contained in the summary of facts.

23. There are two categories under which bail is considered depending on the nature of the offence committed.

24. The first category applies to those who are charged with wilful murder or treason. For this applicant must apply to the National or Supreme Court for Bail (See s. 4 Bail Act Ch 340). Their applications for bail are not subject to the "interests of justice". (See s. 42(6) of the Constitution.)

25. The second category applies to those charged with all other offences. Applicants under this category are guaranteed bail at all times by s. 42(6) of the Constitution and subjected to the "interest of justice" as per the section.

26. Under this category applicant can apply to the police and District Court for bail.

27. In the present case, the applicants fall within the first category where bail is not readily available as of right but only as a qualified right. It is granted at the discretion of the court and the courts have in the past considered bail for applicants charged with wilful murder by applying the exceptional circumstances test.

28. It is trite law that whilst the Court has a wide discretion to admit an applicant to bail even where one or more considerations under Section 9(1) of the Bail Act are present, the onus is on the Applicant to show why his detention in custody is unjustified: see Re Fred Keating -v- The State [1983] PNGLR 133 and Re Kou Dua [1984] PNGLR 22, Steven Lester v The State (2001) N2044; Mathew Yukai Mandalo v. The State: MP No. 420 of 2008 (unnumbered & unreported) and the case of Mapi Jack v. The State (2008) N3511.

29. In Re Kou Dua's case (supra), a case of wilful murder at page 23 of the Judgment, the late Chief Justice Sir Buri Kidu stated that:

"In the Re Keating [1983] PNGLR 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 is or are shown to exist the onus is then on the applicant to show why he/she should be granted bail."

30. Both counsels correctly pointed out that the court when considering a matter under this section is not bound to apply the technical rules of evidence but may act on such information as is available to it, s. 9(2) Bail Act. Thus the police summary of facts was the only source of evidence considered in the consideration of the application.

31. Applicants are policemen in possession of police issued firearm which was used resulting in death of a person and wounding of another. Issue of arms to policemen are no licence to kill and maim innocent people. The laws are made for all, policemen and lawyers alike.

32. The statement of facts clearly shows the applicants' disregard of public safety and highly negligent acts in discharging shots from firearm in a public place resulting in the death of Ms Felin Bune and wounding of Mrs Tenis Bune.

33. It also demonstrates the laxity of the applicants who are policemen and should have known better the consequence of their action in the use of lethal weapon without first ascertaining the facts of the particular case. In the situation at hand, instead of firing shots at the vehicle in which the deceased and her mother were in, they should have taken reasonable steps to find out why the two vehicles were being driven in an unusual manner.

34. No doubt the very nature of all homicide offences possesses elements of assaults. In the present case the facts displayed elements of serious assaults which are considerations stipulated in s. 9(1)(c) (i) (ii) (iii) of the Bail Act that if not justified will bar rights of the applicants to bail on a charge of wilful murder.

35. The commission of the offences in which the applicants were charged with involve serious assault, threat of violence and use of firearm. This is the situation in which the applicants find themselves in, and is cause for refusal to the grant of bail. The applicants have failed to adduce evidence on the alleged grounds to the satisfaction of the court that exceptional circumstances exist to warrant grant of bail.

36. Mere assertion of such grounds without adducing evidence does not amount to exceptional circumstances. In fact there is no evidence before this court worth discussing as the alleged grounds are nothing more than mere conjecture.

37. For a successful application, applicant(s) must satisfy the court on a charge of wilful murder that exceptional circumstances exist, notwithstanding s.9 (1) (c) (i) – (f) which acts as a bar to the grant of bail.

38. Having determine that such exceptional circumstances does not exist and that s. 9(1) (c) (i) (ii) (iii) apply; this application must therefore be refused.

39. Application for bail refused.

40. Applicants to be remanded in custody pending committal proceeding.

Orders accordingly.
_____________________________________________________________
Public Solicitor: Lawyers for Applicant
Public Prosecutor: Lawyers for Respondent