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Parker v Independent State of Papua New Guinea [2015] PGNC 74; N5984 (16 June 2015)

N5984

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 230 of 2015

IN THE MATTER of an Application for Bail made pursuant to section 42 (6) of the Constitution and section 6 of the Bail Act

BETWEEN:

JUSTIN PARKER
Applicant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Manuhu, J. 2015: 15th & 16th June

CRIMINAL LAW – Bail Application – Offence of wilful murder – Applicant alleged to have assaulted the deceased who died after two days from serious head injuries – Considerations under section 9 of the Bail Act – Applicant has substantial personal and business interests.

Cases cited: Keating v The State [1983] PNGLR 133 Bernard Juali v The State (1999) PNGLR 503

Counsel: I. Molloy and J. Brooks, for the Applicant, M. Tamate, for the Respondent.

16th June, 2015

1. MANUHU, J: This is the Court's ruling on an application for bail pending Committal proceedings after the Applicant, Justin Parker, was charged on 12th June 2015 for the wilful murder of his employee Lapan Neson on 6th June 2015.

2. Pursuant to section 42 (6) of the Constitution, a person detained for an offence, other than treason or wilful murder, is entitled to bail at anytime. Section 4 of the Bail Act gives the National Court and the Supreme Court the power to grant bail to a person charged with treason or wilful murder. Under section 6 of the Bail Act, an application for bail may be made at anytime, and the bail authority may grant or refuse bail in accordance with section 9 of the Bail Act. It was held in Fred Keating v The State [1983] PNGLR 133 that where one or more of the considerations under section 9 are proved, bail should be refused unless the applicant show cause why his detention in custody is not justified.

3. In this case, there is no doubt that the alleged act constituting the offence to which the applicant has been charged consists of a serious assault. The Applicant and the deceased were residing in the same premises. The deceased, a licensed aircraft engineer, was employed by the Applicant. The deceased, aged 54, owing to a prior motor vehicle accident was disabled in his right knee and hip joint. The Applicant, 44 years of age, a businessman and owner of Golden Valley Enterprise, was "very drunk" when he went to the property at about 4:00 AM on the 6th of June 2015.

4. He ordered his security guards to remove tyres from the deceased person's truck. He then went to where the deceased and daughter were asleep and started to shout and scolded the deceased for not doing his job properly. He became aggressive and entered the house and grabbed the deceased by the collar of his shirt and pulled him out onto the veranda. He then punched the deceased at the back of his head causing the deceased to fall onto the concrete cement on his hands and knees. The Applicant then kicked the deceased very hard on the abdomen causing the deceased to flip over. The Applicant continued to kick his employee two more times with his boot. He then punched the deceased several times with his fist on the face causing the deceased person's head to hit the concrete cement "very hard". The deceased was out of breath and was bleeding heavily by this time from his mouth and nose. The deceased became unconscious and was rushed to the hospital. He was admitted to the Intensive Care Unit and was attended to but he lost his fight for life on the 8th of June 2015.

5. The Court is satisfied that a consideration for refusal of bail exists in that this case involves a serious assault. The onus now shifts to the Applicant to show why his continued detention is not justified. Discharging this burden would justify the Court's exercise of discretion in the Applicant's favour.

6. In that regard, I have considered all the matters for and on behalf of the Applicant. The Court accepts that the Applicant is a well-known businessman and has substantial business interest in PNG. He has a big family to support and 110 employees who are likely to be affected by his continued detention. His bail application is supported by three prominent lawyers, namely, Pila Niningi, Robert Bradshaw and Karl Yalo. The Applicant is willing to pay at least K25,000 to support his bail. Therefore, the Court accepts that the Applicant is unlikely to abscond bail, and is unlikely to commit an indictable offence. The Applicant is not affected by other considerations under section 9.

7. In relation to the likelihood of interference with State witnesses, a consideration under section 9 (1) (f), the Court is seriously concerned that the daughter of the deceased, who is likely to be the sole star witness for the State, resides in the same premises as the Applicant at Gorobe Street. That can be intimidating. Even if the Applicant is denied access to the property, the daughter could still feel intimidated by other employees residing in the Applicant's residence. Preferably, the witness should vacate the property and reside somewhere else. The Court does understand the concerns of her mother. They are genuine concerns and the Court is equally concerned.

8. In relation to the issue of serious assault, it was submitted, and the court accepts, that it does not automatically disqualify the Applicant from grant of bail. It was further submitted that this is the Applicant's first charge involving any allegation of violence. The Applicant will plead not guilty and vigorously contest the allegations made against him. Therefore, his continued detention is not justified.

9. How does the Applicant expect the Court to accept his pleas when, given his standing in the community and given his personal and substantial business interests, he chose to attack his own employee, a senior employee, a disabled man and ten years older than him? When the Applicant attacked the deceased, he knew that he was breaking the law and he must have known that breaking the law could result in him being sent to jail. This is not a case where the Applicant was provoked and the assault was on the spur of the moment. The alleged assault was premeditated. It was deliberate. His personal and business interests did not mean much to him when he set out to attack his own senior employee. It was a serious breach of trust for the Applicant to assault his employee.

10. The Court can understand that the Applicant could succeed in contesting the charge of wilful murder but murder or manslaughter are still very serious offences and, if convicted on one of those lesser charges, a non-custodial sentence is very unlikely. Therefore, the Applicant should understand that detention in custody is the natural consequence of his deliberate choice to get himself drunk, put aside his personal and business interests, and attack the deceased, which attack has resulted in death.

11. In Keating v The State, which was an application for bail in a wilful murder case, bail was refused in the National Court and subsequently in the Supreme Court. In Bernard Juali v The State, an application for bail in a wilful murder case was also refused. I have not been referred to a wilful murder case where an application for bail was successful.

12. In all the circumstances, the Applicant has failed to convince the Court that his detention in custody is not justified. The application is accordingly dismissed.

________________________________________________________________
Ashurst Lawyers Lawyer for the Applicant
Pondros Kaluwin, Public Prosecutor: Lawyer for the Respondent