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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR (AP) NO 690, 691 and 692 0F 2020
IN THE MATTER OF BAIL APPLICATIONS BY DONALD REX, DICKSON ARI AND KATSI ARI
Madang: Narokobi J
2020: 26th November, 14th December
BAIL – nature of right to bail – Constitution, Section 42(6) – Bail Act, Sections 4, 6 and 9 – exercise of discretion whether to grant bail – age of one of the applicants- public interest considerations.
Cases Cited
The following cases are cited in the judgment:
Aia v The State (2001) N2124
Bernard Juale v The State (1999) N1887
In re Boram Correctional Institution (2006) N3801
Fred Keating v The State [1983] PNGLR 133
Re Herman Kagl Diawo [1980] PNGLR 148
Re Thomas Markus (1999) N1931
BAIL APPLICATIONS
This is a ruling on applications for bail made under the Constitution and the Bail Act.
Counsel
W Akuani, for the Applicants
F Popeu, for the State
JUDGEMENT
14th December, 2020
1. NAROKOBI J: This is a ruling on applications by three applicants for bail for – Donald Rex, Katsi Ari and Dickson Ari pursuant to s 6(1) of the Bail Act, Ch 340. This is an offence that caries as its maximum penalty, the death sentence.
Background
2. The applicants are co-accused charged for wilful murder contrary to s 300(1)(a)(b) and (c) of the Criminal Code Act, Ch 262.
3. The details of the offence alleged was that on 3 April 2018 the applicants together with a number of other young men, went to the house of the victim between 8pm and 10pm in the night and called him out. The victim was a teacher at the local community school. He lived in the teacher-provided house. When the deceased came out, they spoke to him nicely. Unknown to him, one of them had a bush knife and decapitated him. They then went off with his head. It was an offence committed under macabre circumstances.
4. The applicants say that they voluntarily surrendered themselves to the police because of continuous police raids and burning of their property. To avoid further reprisal from the police, they voluntarily turned themselves into the police. They also had betelnut trees destroyed which they rely on for livelihood.
5. Donald Rex the first applicant relies on their own affidavit. In his affidavit he states that he is 19 years old and is at school now doing grade 7. He fears that his education will suffer if he is in prison awaiting trial. He also says that he helps his mother who is a widow to look after his brother who is disabled.
6. Dickson Ari the second applicant relies on his own affidavit. In his affidavit he says that he is 21 years old and is married with two (2) children. He says his house was burnt down by the police and he wants to be released so that he can build his house again for his wife and children.
7. Kasti Ari the third applicant relies on his own affidavit. In his affidavit he says that he is 25 years old and is educated as a mechanic and works in Madang and Lae. He is married with two (2) children. He voluntarily turned himself in after his house was burnt down by the police. He wants to be released on bail so that he can build his family’s house again.
8. The applicants also rely on the affidavit of Jona Gugul, he is the Council Ward member for Ward 20 which is a ward within South Ambenob Local Level Government in Madang, Madang District. He says that there is no tension now and the only disturbance is from the police who is moving around the area, terrorising the people.
9. The State opposes the application and relies on the two affidavit of the arresting officer Elimash Bonnie. In his view, the possibility of interference with states witnesses is high. He says that the accused are part of a criminal gang, who have been involved in cult activities, and committed crimes, some of which has gone unreported. He urges the court to refuse bail.
Constitutional right
10. In my discussions on the law on bail, I have found a useful, simple and clear explanation by Cannings J in In re Boram Correctional Institution (2006) N3801 on the subject, so I have centred my discussion on the law on his honours judgment.
11. The starting point for bail in Papua New Guinea is the Constitution, Section 42(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.”
12. Cannings J in In re Boram explains s 42(6) in this way:
“11. The Constitution therefore creates a right to bail – unless the interests of justice require otherwise – in the case of a remandee charged with any offence other than wilful murder or treason. If a remandee is charged with wilful murder or treason, he or she can still be granted bail at the discretion of the Judge hearing the application. However, in those cases the presumption in favour of granting bail does not apply and it is more difficult to obtain bail (Fred Keating v The State [1983] PNGLR 133, Supreme Court, Kidu CJ, Kapi DCJ, Andrew J).”
13. What I can emphasise here is that presumption in favour of granting bail in a wilful murder charge no longer applies, and it becomes a matter for the discretion of the judge. Such discretion is to be exercised in the interests of justice.
Bail Act
14. The relevant provisions of the Bail Act Chapter No 340 provides the mechanism for the implementation of Section 42(6) of the Constitution are ss 4, 6, 9, 16 and 18.
15. Section 4 lists a number of offences where only the National Court and the Supreme Court can grant, one of which is a charge of wilful murder.
16. Section 6 is the main jurisdictional basis for bail pending trial (or during trial) and provides that a bail application can be made at any time after a person has been arrested or detained or at any stage of a case.
17. The next important provision is s 9 of the Bail Act. Again, I borrow Cannings J’s statement in Re Boram:
“It lists ten circumstances in which bail can be refused. If none of them exist, bail must be granted. If one or more of them exist, the court hearing the application can still grant bail at its discretion (Fred Keating v The State [1983] PNGLR 133; Bernard Juale v The State (1999) N1887, National Court, Kirriwom J).”
18. It is therefore imperative to consider what Section 9(1) states:
Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:—
(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—
(i) a serious assault; or
(ii) a threat of violence to another person; or
(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; or
(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody; or
(j) that the alleged offence is one of breach of parole.
[Emphasis added.]
19. A person opposing bail has the onus of showing why bail should not be granted (Re Herman Kagl Diawo [1980] PNGLR 148, Supreme Court, Kearney DCJ, Kapi J, Miles J; Re Boram, Cannings J).
Applications Where Discretion is to be Exercised
20. Having discussed the law, it is now clear that this case, is one where the presumption in favour of bail ceases as it is a wilful murder case. However, bail can still be granted, but it is the discretion of the court. In this light, the final point I take from Cannings J in Re Boram is this:
“The Bail Act does not say what matters the court should take into account if it finds that one or more of the circumstances in Section 9(1) exist and it becomes a matter of discretion whether to grant bail. So the court is entitled to take into account all the prevailing circumstances and to determine whether the interests of justice require that bail be granted. Two considerations stood out as particularly relevant in the present case.”
21. To assist me arrive at my decision, I weigh the factors in favour of granting bail against those which speak against the grant of bail.
Considerations
22. First consideration is the age of the offender. This favours the applicant Donald Rex. At the time the office was committed he was 17, so he was a juvenile. This is important in view of the level of responsibility attributed to him in the commission of the offence where there are a number of offenders.
23. The second consideration in favour of the applicants is the decision by the applicants to surrender to the police which was occasioned by the alleged police brutality in the area. This is a serious matter and strengthens the applicant’s case.
24. The third consideration in favour of the applicants is that all applicants had their houses torched and their betelnut trees destroyed by the police. Dickson Ari and Katsi Ari say they want to be released to build their family homes. Both are married with two children each.
25. The fourth consideration that favours the applicant's contention is that they were kept in custody for some time without being charged.
26. The fifth consideration is that there is no tension in the area as attested to by their ward councillor.
27. On the other hand, the State opposes bail on a number of grounds. The State submits that this is an offence where a number of factors listed in s 9 of the Bail Act are present and work against the granting of bail. These factors are:
28. These objections are contained in the arresting officer’s affidavit and outlined in the State’s submissions against the grant of bail.
29. The State further submits that there are other accused and if bail is granted, it will prejudice the State’s right to contest their bail application, in the event that such an application is made.
Weighing the Considerations
30. Whilst I sympathise with the applicants for having lost their property (as they allege), in my view they have a remedy readily available to them, and that is to sue the State for infringement of their rights and seek just compensation. Spending time in custody does not prevent them from pursuing this claim.
31. The applicants are entitled to a speedy trial, and if in fact their innocence is confirmed, they will be able to rebuild their lives when they are released. They come from a village setting and I take judicial notice of the nature of our society where the village will be able to come to the help of the applicant’s family to build their home while they are in custody. The applicants have been charged for a very serious offence and the process must be completed with due dispatch to instil public confidence in the criminal justice system.
32. The existence of a number of factors provided for in s 9 of the Bail Act in this case has persuaded me against granting bail for Katsi Ari and Dickson Ari.
33. I am not satisfied that the applicants have demonstrated sufficient reasons to me to compel me to exercise my discretion given the existence of the factors enumerated in s 9 of the Bail Act. I take into account the fact that there are a number of co-accused in this matter as the State submits and at this stage it will be in the public interest to complete their investigations properly that all accused are kept in custody due to the very serious nature of the offence.
34. In Bernard Juale v the State (1999) N1887 Kirriwom J referred to exceptional circumstances which the court alluded to in Aia v The State (2001) N2124:
".... I think there will be, as is always the case, exceptional circumstances, such as those alluded to by Andrew J in Re Fred Keating, that would warrant bail, even in wilful murder cases."
35. The public interest to ensure that the Police complete their investigations within a timely manner, given the very serious nature of the offence, as indicated by the maximum penalty of death and the fact that there are still a number of accused at large has persuaded me against the granting of bail.
36. I will however grant bail to the applicant Donald Rex, as at the time of the commission of the offence, he was 17 years old and a juvenile and it is still to be determined as to the level of his involvement. One question I have is whether he was forced by the other members of the community to come forward to accept the blame on behalf of the others given his young age. I take note too of his need for education whilst awaiting trial, as he will be doing Grade 8 next year, an examinable year. He may have to be enrolled in another school. He will have to reside at a location away from where the offence took place and report regularly to the arresting officer.
Conclusion and Orders
35. In light of my discussion on the law and the circumstances of this case, I will grant bail to Donald Rex subject to conditions and refuse bail for Katsi Ari and Dikson Ari.
Ordered accordingly.
____________________________________________________________________
Akuani Lawyers: Lawyers for the Applicants
Public Prosecutor: Lawyer for the State
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