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Bore v State [2016] PGNC 111; N6314 (16 May 2016)

N6314

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR/APP NOs. 56, 57 & 58 OF 2016

ROBIN BORE, FRANCIS ANDISANGU and MATHEW BENO

V

THE STATE
Respondent

Wabag: Auka AJ

2016: 26^th April & 16^th May

CRIMINAL LAW – Practice and Procedure – Bail Application – After being served an Ex Officio Indictment – Pending Trial – Offence of Wilful Murder – Onus of Proof – Prosecution to establish one or more of Considerations under S.9 Bail Act before onus shifts to applicants to show why their detention is not justified – Prosecution failed to establish S.9 Consideration - Bail granted

Case Cited:
Re-Fred Keating [1988] PNGLR 133
Re Kou Dow [1984] PNGLR 22
Vela Wari Vele v. The State (2004) N2701

Counsel:
Mr. Otto Yallon, for the Applicants
Mr Joe Waine, for the State/Respondent

DECISION

16^th May, 2016

1. AUKA AJ: The Applicants were each charged with the offence of Wilful Murder of one Londari Taupin. The offence was committed on 25^th December, 2011 at Mayepam Creek, Pogera Station, Enga Province.

2. After being charged, their cases were processed through the Wabag District Committal court.

3. Applicants Robin Bore and Mathew Beno were granted bail by the National Court and were attending committal hearing from bail whilst Applicant Francis Andisangu was attending from custody.

4. On 1^st October, 2013 the committal court dismissed the charges on grounds of insufficient evidence following a no case submission. Subsequently the charges were dismissed against the three (3) applicants.

5. On 30^th September, 2014 the Public Prosecutor laid an Ex Officio Indictment pursuant to its powers under s. 526(1) of the Criminal Code. The Applicants were served the Indictments and witness statements files on 15^th January, 2015 and 23^rd December, 2015 at Hela Police Barracks and Kimininga Police Barracks, Mt. Hagen in Western Highlands Province.

6. They appeared at the National Court call-over in Wabag on 29^th February, 2016. They appeared from the custody of their lawyer, Mr. Yallon; I extended that they remain in the custody of their lawyer. On 26^th April, 2016 I heard their Bail Application and further ordered that they remain in the custody of their lawyer pending this decision.

7. An Application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding pursuant to Section 6 of the Bail Act. Section 6 however has limited application where the applicant is charged with Wilful Murder or treason because s.42 (6) of the Constitution and s.3 of the Bail Act. While it is open for a person charged with Wilful Murder or treason to apply for bail, he or she must proceed only under s.4 of the Bail Act.

8. Section 4 of the Bail Act vests in the National and Supreme Court, exclusive power to deal with bail applications in relations to three categories of offences namely; (1) homicide offences of Wilful Murder and murder;(ii) any offence punishable by death; (iii) serious offences the commission of which involves use of fire arm. That provision states;

“(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 Supreme Court.

(2) For the purpose of subsection (1), “firearm” includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile.

9. The Applicants are charged with Wilful Murder so the National Court has power to deal with their application for bail. However, they don’t start with the same advantage in their favour as those entitled to bail because S.3 of the Bail Act and S.42(6) the Constitution which stipulate that, persons charged with Wilful Murder or treason are not entitled to bail. Section 42 (6) of the Constitution States;

“A person arrested or detained for an offence (other than treason or Wilful Murder as defined by an Act of Parliament) is entitled to Bail Act at all times from arrest or detention to acquittal or conviction unless the interest of justice otherwise require”

10. This restriction means bail is not readily available to the person charged with Wilful Murder.

11. If one or more of those considerations under S.9 (1) are present, it does not necessary follow that bail, will be refused because the bail authority has the discretion to refuse bail. The onus is on the applicant to show why he or she should be granted bail despite the presence of one or more of the consideration under S. 9(1): Re Fred Keating [1983] 133. See also Re Kou Dow [1984] PNGLR 22. There may also be exceptional circumstances which the person charged with Wilful Murder may point to as exceptional to his case that warrants exercise of discretion to grant bail.

12. The brief facts of the case were that on 25^th December, 2011 at about 4:00pm the late deceased was acting disorderly at the Pogera market when he caught the attention of the Police Unit, MS 07 Brown Ten Seater. At the relevant time, the deceased was under the influence of alcohol. He was a wanted man and was fleeing from Police.
The three applicants and other Policemen followed him and various warning shots were given but the deceased did not stop but continue to flee and apparently one of the Policemen shot the deceased on the leg. The deceased was taken to the Pogera Hospital in the Police vehicle for treatment. However, deceased died at the hospital after seven (7) hours from loss of blood.

13. The three Applicants are applying for bail under sections 4 and 6 of the Bail Act. They have not stated the grounds in their respective Applications for bail. However having read each of their Affidavits in Support and the Submission by their lawyers the grounds for the applicants are:

(i) For ROBIN BORE they are;

(a) That he is currently a serving Policeman in the rank of &##60;&<;ɘʔSe60;Senior Inspector and is the only bread winner of his family;

(b) That he is a TB Patient and is still on Medication

(c) He may lose his ement il nonted and that &#160 &#160 &#160 ;d &#o60;c jld jeopardise thee the Livelihood of his family

(e) That he was granted Bailst thter wing ҈ &##160;;ټ#1660; ;proc in Wabag Cbag Cbag Coag Commitommittal Ctal Court ourt and tand that that the same ـ
#1160;1160;& ـ s happen whilst ilst the mahe matter is before the Nationational Coal Court

(ii) For Mathew Beno they are:

(a) That he is currently a serving Policeman in the rank of First &ـ < < abletand is curyently on opon operations at the Pogera Mine 𜕜 ;#1600; Site
(b)is m rried with with with two (two (2) children and is the only ټ ټ&660;&##160;;ټ&##160;;breadwinner of hisf his fami family. (c) That he suffered injuries to h to his leis left anft ankle and continues &ـ҈ ;#1600; < reguldicalkcheck up to avoi avoid the risk of &##160;;ټ&##166;t &&160;<;#160;&#160&#160  &##10;& &##160; act0;actinhritnhriti> (d) may his ement if bail not grabr> (e) That being a Policemanceman his his safetsafety in y in custocustody isdy is not not secured &#&660;;&1600;&1660;d1e toue toue to number of arrest that he has made some of ;ټ < < 𨤐;&#16m arel in n (f) That he was grantedanted bail bail whil whilst thst the mate matter wter was being &##160; &##160;ټ<&##160;s160;ssed in Wab Wabag Coag Committmmittal Court and that the same &ـ < < ;d&##160;dihaphilst thst the matter is before fore the Nthe Nationational &##60;&<;ɘCo6rt

(a) That he is currently a serving Policeman in the rank of &##60;&<;ɘʔ< Senior Constable erves in t in the force for 23 years
(b) That he was and is a Asthmatic patient and is still under Medication
(c) That he is married and has one (1) child and is the only bread ;ټ&##160;< &160;&160; ـ &##160;< winner ofer of the fabr> (dr> (d) That he may lose his employmentail not granted
(e) Being a Policeman, his safety in Custody is not secured &##160; ¦҈҈ &160; havinhavrrg aed and chargedarged people, some of whom are still ـ &##60;&;&600;҈& #160; in dy14.b>14. The The Applicants also have nominated two gtwo guaranuarantors tors each who are persons of high standinghe Coty.

15. App Applicant Robin Bore have nominated one one KenneKennedy Lemben and Henry Kyakas. Kennedy Lemben is the Mayor of Wabag town whilst Kennedy Kyakas is the election Manager responsible for the Elections in the Highlands.

16. Mr Kennedy Lemben deposes amongst others, that he knows applicant Robin Bore for more than fifteen (15) years and is a senior Inspector in the Police Force and is hard working Policeman in the once troubled Wabag town which is peaceful now. He is a person of good character and is a peace loving person. He is an easy going person with an outgoing personality. He is a person of very outstanding character and actively participates in promoting peace. He also proposes to pay K500 to K1000. 00 surety and undertakes to ensure that the applicant complies with every bail conditions imposed.

17. Mr Henry Kyakes deposes that he knows applicant Robin Bore for more than twenty (20) years. He knows the applicant as a Policeman who is young leader and participated in promoting peace and as such he has volunteered to be the guarantor. He proposes to pay K500 to K1000. 000 as Bail surety and undertakes to ensure that the applicant complies with all the bail conditions impose.

18. The Applicant Robin Bore also relies on the affidavit of the ward councillor of Ambum Local Level Government Mr Gabriel Pyakal dated 25^th April, 2016. He deposes that he is aware that Applicant has been charged with Wilful Murder and is currently attending Wabag National Court. He deposes that the applicant whilst attending to National Court proceedings has not caused trouble by either interfering with the witnesses or has lured his tribesman to cause trouble with the relatives of the deceased. He deposes that as the Councillor responsible for council ward of Applicant Robin Bore he does not encourage trouble from happening. He further deposes that the chances of trouble happening between the Applicants line and deceased line is very remote.

19. Applicant Mathew Bone have nominated one Chief Sgt. AK Kukuma employed in the Papua New Guinea Police Force and is currently the squad commander of Mobile 07 based in Mount Hagen and one Mr Samson Pakali, the Director for Community Development Division in the Enga Provincial Government.

21. Chief Sgt AK Kukuma deposes amongst others, that he knows applicant Mathew Beno for more than two (2) years in the rank of First Constable in the Police Force who is also a member of Mobile Squad 07 in which he is the Squad Commander and comes under his supervision. He deposes that the applicant is a good policeman who carries out his delegated duties effectively and has led by example and encourages others to solve disputes through lawful means. He further deposes that he has known the applicant to be of sober habit and a law abiding citizen. He proposes to pay K500 to K1000 as surety and undertakes to ensure that the appellant complies with every bail conditions imposed.

21. Mr Samson Pakali deposes that he knows applicant Mathew Bone since he was a child. He deposes that the Applicant is 30 years of age, from Kanomanda village in Laiagam District, Enga Province. He further deposes that the Applicant is a member of the Catholic Church and his father is a Catechist. He knows the Applicant as someone who normally promotes peace in his village. He deposes that he is willing to supervise the Applicant and make sure that the applicant complies with all the bail conditions imposed. He proposed to pay K500 to K1000 as bail surety.

22. The Applicant Mathew Bone also relies on his further Affidavit filed on 26^th April, 2016. He deposes that he has not incited trouble or cause problem with the relatives of the deceased. He deposes that he will never do that as he wants the Court to decide his fate. He deposes that he will not take the law into his hands. He relies on the letters written by Mr Samson Pyakole, a Village Court Magistrate and Mr Dickson Lapel, Headmaster of Mapumanda Primary School.

23. Mr Saimon Asu Pyakole in his letter of 11^th April, 2016 stated that he is a Village Court Magistrate of Pangu village court and confirms that there is no trouble at home regarding the shooting of Late Londari Taupin Mara. He says as a leader of Malowan tribe as well as village court magistrate in the community he hasn’t seen or heard of any trouble, arguments or tribal fights in relation to this shooting up to now. He says shooting of the deceased is something for the court to deal with and decide on. He says whoever is telling the court that there is big fight at home is a liar.

24. Mr Dickson Lapel, the headmaster of Mapumanda Primary School says that there is no fight whatsoever in Kamanda ward of Pilimambi Local Level Government in relation to the shooting of Londari Mara Taupin by Policeman. He says there is no problem or fight between the deceased tribe and the policeman’s tribe because the deceased is his cousin. Mathew Beno’s mother is from deceased’s tribe. He says there is no fight or problem regarding this matter from the time the court case started till now.

25. The Applicant Francis Andisangu have nominated Rudy David, the Sales Manager for Air Niugini in Wabag office and Yohannes Ganim, the current Protocol Officer of Wabag District Office.

26. Mr Ruby David deposes that he knows the applicant for a long time and is a person who encourages others to solve disputes amicably through courts, etc. He deposes that the applicant to be person of sober habit and law abiding person who would not cause a problem or go into hiding. He proposed to pay K500 or K1000 as bail surety and make sure that the applicant does not breach the conditions imposed.

27. Mr Yohannes Ganim deposes that he is the Protocol Officer of Wabag District Services and a village elder in his village of Teremanda, Wabag Enga Province. He deposes that he is aware that the applicant has been charged with Wilful Murder. He says that Applicant is a law abiding person who would not normally cause problem or go into hiding. He deposes that in the event that Applicant is granted bail he will come under his supervision and make sure that he does not break the condition imposed. He proposed to pay K500 to K1000 as bail surety.

28. The Applicant Francis Andisangu also relies on his further Affidavit filed on 26^th April, 2016. He deposes that he is an asthmatic patient and have been advised to keep out of dusty and cold environment.

29. The State has objected to the Application for bail for the reasons that;

(i) The offence with which the applicants are charged consist of serious assault, S.9 (1) (c) (1) Bail Act and

(ii) Applicants had or were in possessing of firearm, S.9 (1) (c) (111) Bail Act

30. The State also relied on the affidavit of Senior Inspector Charles Winuan who has deposed that the Applicants may incite trouble between the tribes of Mathew Beno and deceased’s tribesman.

31. In view of the strong evidence from Mathew Beno, Village Court Magistrate Mr Saimon Asu Pyakole and Mr Dickson Lapal which I have mentioned in paragraph 23 and 24, this Court have considered Senior Inspector Winuan’s evidence unreliable and as such reject it.

32. In relation to the considerations under s.9 (1) (c) (111) of the Bail Act, prosecution have not shown by evidence that the matters are present. I am not satisfied that the State have established them against the Applicants.

33. In a bail application, it is vital for the state to establish the existence of substantial grounds for the belief that one or more of the matters under s.9 which it relies on in opposing bail is present. That point was made in Re Keating (Supra) by Andrew J where he stated at p.133:

“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 matter described in s.9 (1) (a) to (g) are present. It is the existence f substantial grounds for the belief, not the belief itself, which is the crucial factor: see Rv. Slough Justices; Ex Parte Duncan and Another [1982] 75 Cr. App. R 384”

34. In Vela Wari Vele v. The State (2004) N2701 His Honour Mogish J emphasised 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 reason.

35. The three (3) Applicants in their respective Affidavits said that they did not commit the crime or that they did not kill the deceased as alleged by the Police. They out rightly have denied their involvement in the crime. They said that the investigation done by the Police were not conducted in fair and proper manner and that they intend to vigorously defend the charges in a proper trial.

36. The Applicants further say that the dismissal of their charges by the Wabag District Court support their denial that they did not cause serious assault and violence against another person and did not have firearm in their possession. I am not satisfied that the state have proved the matters under S.9 (1) (c) (111) present against the Applicants and as such do not disqualify them from bail.

37. In the end I am led to reach a decision that the Applicants have made out a case where the discretion of the Court may be exercised in their favour.

38. Beside what I have said above, I also consider certain circumstances which the Applicants have shown which in my view are exceptional circumstances which favour grants of bail. These circumstances are as follows;

1. That the Applicants have been faithfully attending all the National Court call-overs during the last five months and as a result their cases have been Pre-Trialled and given trial dates in the month of July 2016 which is a month away and as such it is just and fair in the circumstances to grant them bail until their cases are dealt with according to law.
2. That when they were granted bail by the National Court and attending committal hearing, they complied with all bail conditions until their case were dismissed on grounds of insufficient evidence.
   
3. The other circumstances are:
1. 1. That Applicant Robin Bore is a TB patient and being a TB patient his health may not be secure while living under unhygienic conditions in custody.

2. That Mathew Bore has suffered injuries to his left ankle and is under mediation and may have the risk of contracting arthritis while in custody
3. That Applicant Francis Andisangu was and is an Asthmatic patient and still under medication and his health may not be secure while living under unhygienic conditions in custody

39. Having said what I have said I in the exercise of my discretion grant bail to the three (3) Applicants with the following conditions:

1. Each Applicant is granted bail in the sum of K1000
2. The two (2) guarantors for Robin Bere namely Kennedy Lemben and Henry Kayakas are approved guarantors and are to pay K500 each as surety for Applicant Robin Bore and to ensure the Applicant complies with all bail conditions.
3. The two (2) guarantors nominated for Mathew Bore namely Sgt AK Kukuma and Samson Pakali are approved guarantors and are to pay K500 each as surety for Mathew Bore and to ensure the Applicant complies with all bail conditions
4. The two (2) guarantors nominated for Francis Andisangu namely Rudy David and Yoaneses Gaunim are approved guarantors and are to pay K500 as surety for Francis Andisangu and to ensure the Applicant complies with all bail conditions.
5. That each Applicant shall reside at their current Police Barracks whilst on bail
6. That each Applicant not to leave their current respective Police Barracks and reside elsewhere while awaiting the hearing of their case without first obtaining the permission of the National Court.
7. That each Applicant not to interfere with the State witnesses in anyway while on bail
8. That each Applicant shall attend the National Court call-overs in Wabag until their cases are dealt with according to law
9. That each Applicant shall keep the peace and be of good behaviour in the community
10. That each Applicant shall report to the National Court Registry at Wabag every fortnight Friday between the hours of 9:00am to 3:00pm until each of their cases are dealt with according to law.
11. That each of the approved guarantors ensure that the times and places set for their appearances are complied with.
12. If each of the applicants fail to appear at the time and places or to comply with any of the conditions of bail, the amount set out above are liable to be forfeited.

Mr Otto Yallon: Lawyer for the Applicants
The Public Prosecutor: Lawyer for the State
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