Ngatia v State [2015] PGNC 284; N6235 (30 December 2015)

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In the Matters of Applications for Bails Pursuant to Section 6 of the Bail Act Chapter 340

CRIMINAL LAW – Bail Act Chapter No. 340 -Applications for bail - Section 6 of the Bail Act – applicants charge with wilful murder - serious or gruesome head injury causing death - applicants are members of police mobile unit - State objects - evidence of frustration and delay in arrest of the applicants caused by conducts of the applicants and their commanding officer -Sections 9(1)(c)(i)(ii) and (iii) and Section 9(1)(f) discussed - whether the State has discharged its burden - whether the applicants have discharged theirs - applications refused

Cases Cited:
Fred Keating v The State [1983] PNGLR 133
Re Bail Application;
State v. Paul Tarccisius Tohian [1990] PNGLR 173

1. ANIS AJ: The Applicants applied for bail together on 24 December 2015. The reason why the applications were heard together was because they arose from the same background.

2. The State objected to bail being granted to the Applicants.

3. At the end of the hearing on 24 December 2015, I reserved my ruling and informed Counsels that I will do so sometimes this week.

5. The Applicants have applied for bail individually under Section 6 of the Bail Act Chapter No. 340 (the Bail Act) and under Section 42(6) of the Constitution.

(iii) Affidavit of Sylvester Essacu sworn on 17 December 2015 and filed on 21 December 2015 (Guarantor);

(iv) Affidavit of Benson Siman sworn on 17 December 2015 and filed on 21 December 2015 (Guarantor);

(v) Affidavit of Benson Siman sworn on 22 December 2015 and filed on 23 December 2015.

(ii) Affidavit of Dacci Waccai sworn on 17 December 2015 and filed on 21 December 2015 (Guarantor);

(iii) Affidavit of Wanpis Ainalo sworn on 17 December 2015 and filed on 21 December 2015; and

(iv) Affidavit of Benson Siman sworn on 22 December 2015 and filed on 23 December 2015.

(ii) Affidavit of Tobias Yob sworn on 17 December 2015 and filed on 21 December 2015 (Guarantor);

(iii) Affidavit of Roselyne Akua sworn on 17 December 2015 and filed on 21 December 2015 (Guarantor);

(iv) Affidavit of Benson Siman sworn on 22 December 2015 and filed on 23 December 2015.

7. The State filed a total of three affidavits. They were all sworn by the lead investigator Aiyofa Faregere as follows:

8. All the affidavits filed by both parties were accepted by the Court. They were also relied upon and discussed by both Counsels during presentation of their submissions on 24 December 2015.

9. The Applicants are current members of a police mobile unit which is based in Kimbe, West New Britain Province.

10. They are in custody after they were arrested and charged on 18 December 2015 each with wilful murder under Section 299 of the Criminal Code Act Chapter No. 262 (Criminal Code).

11. According to the Statement of Facts (Statement) which is on file, the offence was allegedly committed on 10 December 2014 between 3pm and 4pm at Morokea village, Kimbe, West New Britain Province.

12. The deceased is Justin Kura. He was killed in front of a house of a witness named Gethrude Vitolo. Martin Vitolo, who is Gethrude's son said he also witnessed the incident and saw the three Applicants at the crime scene.

13. Martin said when he arrived, the deceased was laying there and he said he saw one of the Applicants Paulias Ngatia fired three shots in the direction over where the deceased was laying.

14. According to Gethrude, when she came to inquire shortly after, the three Applicants where still there. She said she saw Shadrick Boko and Bowie Xavier with their rifles whilst she said she saw Paulias Ngatia holding an axe on the one hand whilst he was retrieving his rifle from the ground.

Shadrick Boko	She said he told her that the deceased tried to cut the two policemen with an axe and knife and they killed him
Xavier Bowie	She said he told her that the deceased tried to pull the gun from him and tried to shoot them but the gun jammed and they killed him
Paulias Ngnatia	She said he told her that the deceased tried to cut them with an axe and they shot him

16. Witness Gethrude said when she inspected the body of the deceased; he was faced up but had heavy bleeding on the right side of his head and ear.

17. Witness Gethrude said she also noticed her iron that she uses to husk dry coconuts not at its original spot but it was laying on the ground 1.6 meters away from where the deceased's body was, and she said the iron rod had blood stains on it. She said she also saw a yellow screw driver on the ground. Witness Gethrude said she picked up the two items and later handed them over to the police.

18. There were also other witnesses namely Melisha Wakore, Paul Natau and Apolonia Giru.

19. There is a copy of a post-mortem examination report dated 12 December 2014 which was conducted over the body of the deceased soon after his death. The report is attached to Mr Faregere's Affidavit filed on 22 December 2015. Also attached to Mr Faregere's Affidavit is a copy of the deceased's Death Certificate which is dated 18 December 2014. In summary, the cause of death was due to massive head injury. The deceased's right side of the back of his skull was severely fractured with a hole created into the socket of his skull. In the process, the blow also smashed the deceased brain tissues because they leaked out of his head thereby causing him to die.

20. At this stage of the proceedings, I should caution myself that the Statement and evidence disclosed at this stage are not tested in Court. The Applicants as I believe are awaiting their committal hearing.

The object of this Part is to give effect to Section 42(6) (liberty of the person) of the Constitution which provides that 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 and to acquittal or conviction unless the interests of justice otherwise require.

(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. (Underlining is mine)

24. In the present case, the Applicants are charged with wilful murder so I am satisfied that they are seeking bail before the correct Court which is the National Court.

(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section 9.”(underlining is mine)

(a) that the person in custody is unlikely to appear at his trial if granted bail; or

(b) that the offence with which the person has been charged was committed whilst the person was on bail; or

(c) that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of—

(iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive; or

(d) that the person is likely to commit an indictable offence if he is not in custody; or

(e) it is necessary for the person's own protection for him to be in custody; or

(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings; or

(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property; or

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act against the person in custody;

27. The process for seeking bail in wilful murder cases is perhaps best explained by the Supreme Court in the case Re Bail Application; Fred Keating v The State [1983] PNGLR 133.

“As pointed out earlier, a person charged with wilful murder can only be granted bail by the National Court or the Supreme Court. The Act does not make any specific provisions with regard to the considerations that should be applicable when bail applications in wilful murder cases are determined by the National Court and the Supreme Court. It is therefore clear that the considerations set out in s. 9 (1) apply and since s. 42 (6) does not apply to wilful murder cases, what I said earlier about the "interests of justice" are not relevant to such cases. I agree with my brothers Kapi and Andrew that in wilful murder (and treason) cases, only those considerations set out in s. 9 (1) of the Act are relevant and no others including "exceptional circumstances". I agree with Andrew J for the reasons he gives in his judgment that in wilful murder cases bail authorities have discretions”.(underlining is mine)

29. The late Chief Justice Sir Mari Kapi who then was the Deputy Chief Justice held as follows:

“This application is to be considered solely under the provisions of the Bail Act, s. 9.

It is clear from the terms of s. 9 that there is a discretion to grant or refuse bail. However, by reading the whole Act and particularly Pt II of the Act, the spirit of these provisions is to grant bail more readily. This is not the same as saying, bail should be granted as a matter of right. This view is consistent with the criteria set out under the terms of s. 9. This section does not set out the criteria for granting bail but as to its refusal. One starts with the spirit of the Act that bail should be granted more readily. That construction applies to all offences including wilful murder and treason. While s. 42 (6) of the Constitution does not apply to wilful murder, the spirit of s. 42 (6) which is built into Pt II of the Act applies to wilful murder. If the legislature intended other criteria for treason and wilful murder under the Act it would have said so.

The exercise of the discretion to grant bail should be used readily unless any one of the matters under s. 9 is established. The Act treats each consideration as equal. One is not to be considered as less serious than the other for the purposes of refusing bail. That is the effect of s. 9. However, s. 9 (1) provides for refusal of bail on "one or more" of these considerations. This envisages a case where objection to bail may be taken on more than one of these considerations. I am of the opinion that when one of these considerations is established, the court should exercise its discretion to refuse bail. This is reasonable because one starts with the premise that bail should be given readily. The considerations set out in this provision were the grounds upon which a court could exercise its discretion to refuse bail prior to 1977. The Parliament has codified these considerations in the Bail Act and the court can only refuse bail on the considerations set out under s. 9. The Parliament has stated exhaustively the grounds upon which bail should be refused”.(underlining is mine)

“In my judgment the use of the word "shall" in s. 9(1) of the Act shows that it can be seen that the bail authority must refuse bail if one or more of the conditions are proved unless the applicant shows cause why his detention in custody is not justified. Such an exercise is always discretionary”.(underlining is mine)

(i) that since the matter was now pending before the Committal Court, the Applicants should be kept in custody so that the process can be attended to without delay;

(ii) the alleged crime involved serious assault, threat of violence on another person and the crime involved possession and use of fire-arms thereby meeting the requirements of Section 9(1)(c)(i)(ii) and (iii) of the Bail Act and as such, bail should be refused;

(iii) The Applicants are likely to interfere with witnesses if they are released on bail which is a valid reason under Section 9(1)(f) of the Bail Act and as such, bail should refused;

(iv) The Applicants are likely to run or abscond their bail if they are released which is valid reason under Section 9(1) (a) of the Bail Act and as such, bail should be denied.

(1) The Applicants began their submissions by attacking or criticizing the Statement as follows:

(i) they submit that a wrong year was put down in the Statement as the year of the alleged incident, that is, instead of '2014', the year in the Statement showed'2015';

(ii) they submit the Statement alleges use of fire arms or claim that three shots were fired from the gun which had caused the death whereas the post mortem showed cause of death as due to severe head injuries and not from gunshot wounds;

(iii) they submit the Statement did not state that they were not performing their duties at the material time of the incident;

(iv) they submit that it appears that death occurred whilst they were performing their duties at the time.

(2) With regard to Section 9(1) (a) of the Bail Act, the Applicants submit that it would be difficult for them to abscond their trials or the bail conditions whilst on bail because they would fear losing their jobs;

(3) With regard to Section 9(1) (c) (i), (ii) and (iii) of the Bail Act, the Applicants submit that:

(ii) the deceased died as a result of them performing their duties as policemen; and

(iii) they were entitled to carry firearms which was party and partial of their duties as policemen.

(4) With regard to Section 9(1) (f) of the Bail Act, the Applicants submit they will not and are unlikely to interfere with witnesses if they are granted bail;

(5) The Applicants also submit they are currently employed. But they submit that their continuous incarceration will affect them and they will stand to lose their employment;

(6) Because of the nature of their work as policeman, the Applicants submit they have put many criminals behind bars and they fear that their lives will be in danger if they are not granted bail and if they are allowed to be kept in prison together with the rest of the prisoners at the Lakimata jail in Kimbe.

33. This Court will also consider the individual affidavits of the three Applicants filed in support of their bail applications particularly to see their stated reasons for requesting bail. These affidavits were all filed on 21 December 2015.

34. Firstly, in relation to Mr Ngnatia, he states that he was charged with wilful murder but that he will deny the charge. He states that the Kokopo Police detectives are currently investigating the matter.

35. He also states that he believes that his safety and that of his two co-accused will be at stake or at risk if they are not allowed bail because as policemen they have arrested and charged criminals who are incarcerated at the Lakiemata jail, the same jail which he and his two co-accused are at or will be stationed at.

36. The two applicants, Mr Xavier and Mr Boko give similar reasons like Mr Ngnatia so I need not repeat them again.

37. I have also considered the additional responding affidavits filed by Mr Siman, on 23 December 2015, Mr Ngnatia on 23 December 2015 and Mr Faregere, that is, his two responding affidavits filed on 23 December 2015.

38. I find the first reason given by the State which is that The matter is yet to go to committal proceedings and as such the Applicants should be kept in custody not a reason which is stipulated under Section 9 of the Bail Act, and I do so by following the Supreme Court's decision in Fred Keating's case (supra).

40. Secondly, I am also not convinced that the State has established its reason under Section 9(1) (a) of the Bail Act, that is, I am not convinced that the Applicants may abscond their trials if the Court decides to grant them bail. The Applicants are police officers and even if they were to be transferred for one reason or another, it would not, in my view, be difficult for them to be summoned back to the Court to face their trials. Bail terms could also be set against them leaving the province. And I should add that assuming they were granted bail and they fail to attend their trials, it will only be to their detriments because additional charges may be laid against them internally as well as by the Court under appropriate circumstances.

41. I therefore dismiss this second reason.

42. In relation to ground 9(1) (c) (i) (ii) and (iii), I am satisfied on reasonable grounds that the State has met all the requirements under this consideration.

43. The manner in which the deceased the late Justin Kura was killed may be described as both horrific and gruesome. His right back skull was not cracked open, but smashed into as a result of which parts of his brain tissues were also smashed by the same impact or blow, and because his internal brain tissues were smashed, his brain tissues flowed out of his skull and deceased died as a result of that. If the deceased was struck from the back then this also suggests that he was not looking or was aware when he was hit. It could also suggest that he may have been killed or murdered in cold blood.

“(2) In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it”.

46. The assault on the deceased was serious. He died immediate or as a direct result from it.

47. The witnesses said they saw the three Applicants each carrying one rifle. Witnesses heard shots being fired. Witness Martin Vitolo said he actually saw Paulias Ngatia firing three shots in the direction of the deceased where the deceased was already laying on the ground.

48. Witness Gethrude Vitolo said she saw all the Applicants holding their rifles. In addition, she said Paulias Ngatia was also holding an axe. Witness Apolonia Giru said Paulias Ngatia took an axe from his kitchen and ran towards the crime scene before the incident occurred. Witness Gethrude also said she saw her iron rod which she uses to husk coconuts laying, not where it used to be, but 1.6 meters away from the where the deceased was laying and it was stained with blood. She said she also saw a yellow screw driver laying on the ground at the crime scene.

49. These general observations are based on the Statement and the post mortem report, and in my view, they clearly establish the use of or threat of violence and also showed that the Applicants were in possession of various offensive weapons at the scene of the crime.

50. I note that the Applicants also argued that because they were policemen they were entitled to carry firearms which was why they had them at that time and the Court should not therefore apply or consider possession of fire arm under Section 9(1)(c)(iii) like it would have done in a normal case.

51. Counsel for the Applicants did not refer the Court to a case law on point to support that argument.

52. I note that Section 9(1)(c)(iii) merely states "having or possessing a firearm.." which should apply in my opinion to anyone including a policemen or a licence gun owner. There is no qualifications made here. If for example, part of the provision was to read "having possession of a firearm not legally owned or entitled to" then we can know for sure or I could understand that argument raised by the Applicants.

53. In this case, without these, I am inclined to read and interpret the provision as it is which in my view would be the correct application of the law.

54. I also note and adopt here what the late Chief Justice Sir Mari Kapi, who, whilst as the Deputy Chief Justice, held in the Supreme Court in the case of State v. Paul Tarccisius Tohian [1990] PNGLR 173 at page 183, the following:

Some of the considerations set out under s 9 (1) of the Bail Act are matters as to which the Court has to be satisfied on reasonable grounds. For example, under s 9 (1) (b) the State must prove to the satisfaction of the Court on reasonable grounds that the offence was committed while on bail. However, there are other matters such as s 9 (1) (c) of the Bail Act where the State simply relies on an allegation that the alleged act constitutes the offence. The alleged act in the present case is having or possessing a firearm. It is not necessary for the purposes of the bail application to determine whether or not this allegation is true or not, or whether the applicant had other lawful reasons for possessing the firearm. These considerations are relevant when the applicant is tried. The allegation that the applicant had a firearm in his possession in uncontroverted. I am therefore satisfied on reasonable grounds that the State has established the consideration set out under s 9 (1) (c) (iii) of the Bail Act.(underlining is mine)

55. In relation to the consideration under Section 9(1) (f) of the Bail Act, I am satisfied on reasonable grounds that the State has met the requirement in establishing the likelihood of interference of witnesses by the Applicants.

58. His team from East New Britain was tasked with investigating the death of the deceased. They travelled to Kimbe on 16 December 2014. After the preliminary investigation, they asked Mr Siman to bring in the Applicants for interviews. Mr Siman refused. The Applicants also refused to come in for the interviews. Mr Siman argued defensively for the Applicants. The investigation team requested Mr Siman and the Applicants to release the rifles, the axe that was found at the crime scene and the firearm registry book. Mr Siman and the Applicants refused to hand these items over to the investigation team.

59. I note that during the hearing, I asked Mr Rangan whether these exhibits have now been handed over to the investigation team. Mr Rangan said they still have not been released to the investigation team. I note that Mr Siman, at paragraph 14 of his Affidavit filed on 23 December 2015, tried to explain his actions for withholding the exhibits. None of what he has deposed to in his Affidavit appear credible. With regard to the axe, Mr Siman alleged that he believed the axe was already taken by the investigation team. In Mr Faregere's responding Affidavit filed on 23 December 2015, he denied taking the axe and he said it was still kept by Mr Siman.

60. I am trying to understand this rationally. Why would the investigation team who is tasked with investigating a brutal killing of a youth, conceal an exhibit or lie that they did not have the said exhibit? From the evidence disclosed, the investigation team appeared have done their best to conduct their investigation efficiently whilst Mr Siman and the Applicants, on the other hand, were doing all they could to hinder the process.

62. Mr Faregere states at paragraph 8 of his Affidavit filed on 22 December 2015 that due to lack of assistance given to them in Kimbe, the investigation team returned back to East New Britain on 29 December 2014. After about a year, on 12 December 2015,this time the directions had to come from the very top that is from Jim Andrews the Acting Deputy Commissioner - Operations in Port Moresby. Mr Andrews issued directions for the immediate interview and arrest of the Applicants. Mr Faregere attaches a copy of the memo from Mr Andrews to his Affidavit filed on 23 December 2015 which shows proof of Mr Andrews’s instructions to arrest and detain the Applicants.

63. Even then and during the second trip of the investigators, Mr Siman continued to refuse to co-operate. Mr Faregere deposes at paragraph 10 of his Affidavit filed on 24 December 2015 that they had no choice but to prepare criminal charges against Mr Siman for attempting to pervert the cause of justice. The charges were dropped when Mr Siman finally agreed to and brought in the Applicants for questioning and arrests. But I must add that Mr Siman only agreed to co-operate after he was instructed by the Special Services Division Director.

64. Mr Faregere deposes that Mr Siman and his men including the Applicants showed no respect to him and his team at the material time.

66. Firstly I can tell from the tone of his Affidavit as coming from someone who appears angry or frustrated. For what, I fail to understand given that these are all policemen who are simply supposed to be assisting each other in upholding the law.

67. He turns straight towards attacking what Mr Faregere has deposed to in his Affidavit filed on 22 December 2015. At paragraph 3 of his Affidavit, Mr Siman states that he could recall clearly that on 16 December 2014 an investigation team from East New Britain were sent there to investigate a death at Morokea village. Yet and at the very next paragraph Mr Siman states these

"The Arresting Officer, Aiyofa Faregere came to Kimbe hideously and did not advise me as the ..."

68. This clearly does not make sense and Mr Siman is obviously contradicting himself.

69. At paragraph 5, he said after spending about 13 days, the investigation team left Kimbe on 29 December 2014 without advising him or the Applicants for the purposes of questioning and he said Mr Faregere "again hideously left for Kokopo".

70. Mr Faregere's responded to that at paragraph 5 of his Affidavit filed on 24 December 2015. He deposes that had Mr Siman co-operated, they would have interviewed and arrested the Applicants in December 2014. He said they had to leave upon instruction from their New Guinea Islands Divisional Commander - Assistant Commissioner Anthon Billie because Mr Siman did not co-operate with them with their investigations.

71. I have read the rest of what Mr Siman has said in his Affidavit and I must say that I cannot find any credible evidence there.

72. It is not hard to understand Mr Siman and his 'rough' actions. It appears that Mr Siman is doing all he can to protect his men, and in this case, the Applicants against investigations and prosecution. And in doing so, I think he has broken the law.

73. Evidence shows that the Applicants, whilst all these were happening, were 'hiding behind the back,' so to speak, of their commanding officer all this time until they were finally arrested and charged in December 2015.

74. So far, as revealed in evidence, the exhibits are still being kept by Mr Siman and he has refused to hand them over to the investigation team. This is confirmed at paragraph 13 of Mr Faregere's Affidavit filed on 24 December 2015.

75. I find evidence which suggests that the Applicants with their commanding officer have:

(iii) acted inappropriately to an extent that it is possible to assume that they have concealed or tempered with evidence that may be used in a court of law; and

(iv) it can be concluded based on their actions that they are likely to interfere with witnesses if they are released out on bail.

76. Because of their actions, the chances and risk of the Applicants capable of interfering with witnesses if they are to be released out on bail are high.

77. They have already demonstrated that by their actions as explained above with their commanding officer.

78. Because I have found that the State has established considerations 9(1)(c)(i)(ii) and (iii) and 9(1)(f), based on the Fred Keating's case, the burden shall shift and the Applicants are required to show why their continued incarcerations in custody are not justified.

79. Based on the Applicants' supportive affidavits all filed on 22 December 2015, they give a common main reason and I have summarised that above which is that they fear that their lives will be in danger if they are kept in at the Lakiemata jail. They say that this is because with their jobs, they arrest and charge people who end up in jail and they are afraid that these prisoners may harm them if they are imprisoned together with them.

80. I find the reason reasonable at the outset. Given their positions as policemen, this consideration is not baseless and some thoughts must be given to it.

81. When considering the reason, I note however that Correctional Services have facilities that separate persons like for example those on remand, policemen, politicians or persons like juveniles, from the rest of the prisoners.

82. There are facilities or processes in place within the jails that address the reason or concerned raised by the Applicants.

83. I also note that the Applicants have not provided evidence that they have exhausted that process.

84. I also note that one of the options may be for the Applicants to put in a formal request through the proper authorities for their transfers for example from Lakiemata to Kerevat. Again, this can be done through internal arrangements or alternatively that can be done by an order of the Court in appropriate cases.

85. A final point I note is that the Applicants say their jobs will be at risk if they are kept in custody. I do not accept that as a valid reason. Firstly, the charges they face are serious and the maximum penalty for that is death.

86. I also note that the Applicants will obviously be suspended if they have not already been suspended. They will not lose their jobs. If they are cleared of the charge, they will resume duties.

87. Consequently, I am not satisfied that the Applicants have provided valid reasons to justify why they should not continue to be incarcerated.

89. My answer to the first issue which is Whether the State has established one or more of the reasons stipulated under Section 9 of the Bail Act is "yes it has, and they are Sections 9(1)(c)(i)(ii) and (iii) and Section 9(1)(f) of the Bail Act."

90. And my answer to the second issue which is If so, whether the Applicants have provided valid reasons on why their continuous incarcerations are not justified? is "no, the Applicants have not provided a valid reason to justify why they should be released from custody".

___________________________________________________
Office of the State Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Applicant

National Court of Papua New Guinea

Ngatia v State [2015] PGNC 284; N6235 (30 December 2015)