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Kairu v State [2021] PGNC 259; N8967 (21 May 2021)

N8967

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 137 OF 2021
In the Matter of Bail Application

BETWEEN:
EDMUND GORDON KAIRU
Applicant

AND:
THE STATE
Respondent

Vanimo: Rei, AJ

2021: 19^th& 21^st May

PRACTICE AND PRACTICE – Criminal Law – Bail Application – Wilful Murder – Bail Act S.460 – Bail Refused.

Cases Cited:
Charlie Posanan & David Koyama -v- The State
Fred Keating -v- The State [1983] PNGLR 133
Jethro Paine Benny -v- The State Berrigan J decisions 14^th& 17^th May 2021
Malaki Korgo and Joe Alus -v- The State [1996] N1554
Paul Makova, Cosmas Mave, Joe David and Willie Seneka -v- The State N4038
Paul Guam -v- The State [1999] N3576

Counsel
Mr. K Masket, for the Applicant
Ms. L Jack, for The State

RULING

21^st May, 2021

1. REI, AJ: BACKGROUND: The Applicant Edmund Gordon Kairu was arrested on the 12^th of June 2020 and remanded in custody.
   
2. He was charged under S.299 of the Criminal Code that he willfully murdered Lester Kairu, a relative, by applying a vicious blow to the stomach with a piece of timber.
   
3. The applicant filed an application for bail on the 4^th of May 2019 seeking that bail be granted to him notwithstanding that he was charged with the offence of wilful murder.
   
4. The applicant relies on his own affidavit filed on the 4^th of May 2020 together with the affidavits of two (2) guarantors namely Patrick Ruben filed 4^th May 2021 and Gordon Kairu also filed 4^th May 2021.
   
5. Incidentally, it is noted that one of the guarantors is related to the applicant as being his uncle: Gordon Kairu.
   

SUBMISSIONS BY COUNSELS

6. It was submitted on behalf of the applicant by Mr. Masket that his client be admitted to bail for the reasons noted in paragraph 7 of the affidavit of the applicant filed on 4^th May 2021 which are as follows:

7. Ms. Jack submits otherwise that the offence being that of willful murder, bail must not be granted unless the applicant demonstrates prevailing “exceptional circumstance(s)” pursuant to Section 9 of the Bail Act.

RULING

8. The law as to the refusal or grant of bail is clear. That under Section 42(6) of the Constitution & Section 9 of the Bail Act, any person charged with the offence of willful murder or treason cannot be allowed bail unless it is shown that “exceptional circumstance(s)” exist warranting bail. See Re Application for Bail pursuant to Section 13(2) of the Bail Act 1977 Re Fred Keating -v- The State [1983] PNGLR 133.

9. The Applicant is required to show exceptional circumstance(s) in his application.

REASONS FOR BAIL

10. The reasons for bail given by the applicant in paragraph 7 of his affidavit do not amount to exceptional circumstances.

11. I however note in paragraph 7(ii) the applicant deposing that he asks to be granted bail to enable him to attend classes at Don Bosco Secondary School where he was previously attending classes and immediately before committing the alleged offence.

12. I have given this matter a serious consideration because the applicant was 17 years of age when he committed the crime. He was then attending Don Bosco Secondary School (“one School”). By now he would be 18 years and wants to continue his education.

13. Although I agree that this may be an exceptional circumstance in this application, I am not satisfied in the interest of justice as insufficient evidence by way of affidavit have been disclosed.

14. It involves evidence such as a statement from the headmaster or class teacher of the School confirming that the applicant was a student attending the School and that the School has a space for him in a class and the School is still willing to take him as a student given the offence he has been charged with.

15. In the light of the fact that the applicant stands charged with the offence of wilful murder, the question as to whether the School is still willing to allow him a space to continue his education is not clear.

16. It is not known whether the School may have suspended him from classes. This has not been demonstrated in the evidence filed.

17. If granted bail, it is not known whether the applicant will continue to be enrolled in the School to continue his education given the gravity of the offence he is charged with.

18. I am however mindful of the fact that in order to protect its’ name and reputation for public image purposes, the School may have severed its relationship with the applicant as a student of that School because of the nature of the charge (wilful murder).

19. It is not known whether the School may have suspended him from classes. This has not been demonstrated in the evidence filed.

20. Once a student, always a student. The applicant abused his privilege as a student by taking off his school uniforms at the end of the school day and flouting school rules by behaving in a manner contrary to decency.

21. He cannot now come and ask the court to grant him bail inorder to attend classes.

22. In paragraph 7(iii) he deposes that the goal facility is overcrowded.

23. I do not think this is an exceptional circumstance. It is the constitutional duty of the Government of Papua New Guinea to renovate the prison facility to accommodate both remandees and prisoners according to law.

24. Finally in paragraph 7(ii) he deposes that because of covid he should be granted bail.

25. If I were to grant bail for reasons of Covid 19 pandemic, a precedent will be set which applicants will use as a ground to successfully apply for bail. I adopt the views of Berrigan J expressed in the recent unreported case of Jethro Paine Benny -v- The State 14^th& 17^th May 2021 where he Honour said that:-

“Finally the applicant contends that he is concerned that if there is out break of covid in detention all inmates will be infected because of social distancing is poor. I accept the risk of contracting covid whilst in detention is an increased risk but this must be balanced against all the circumstances of the case, in particular the nature and seriousness of the alleged offence and s.9 considers the risk of covid alone cannot constitute on exceptional basis warranting bail. If that was the case then all inmates, regardless of the seriousness of their alleged offence and other considerations would be entitled to bail”.

26. She then went on to say that “the Court’s discretion to grant bail in a case involving wilful murder is very limited” if not, it is non-existing unless otherwise exceptional circumstance(s) exist.

27. This is also not an exceptional circumstance under which bail should be granted. Even if it is, it should be weighed against other evidence to constitute exceptional circumstances.

28. The applicant himself is not infected by Covid 19. Even if he was infected as a remandee, the Correctional Services will ensure that appropriate medical attention is given in the sense that he is lawfully detained in prison awaiting his trial. He might not enjoy that privilege if he is granted bail. In this regard, I adopt the views of Berrigan J expressed in the recent unreported case of Jethro Paine Benny -v- The State.

GUARANTORS

29. I also note from the affidavit of Gordon Kairu himself that the applicant is his nephew.

30. This evidence alone poses a serious threat to the application itself because of apprehension of bias and conflict of interest.

31. I refer to the case of Paul Makovu, Cosmas Mave, Joe David and Willie Seneka -v- The State (2010) N4038.

32. In that case, His Honour Kawi, J referred to the Supreme Court Case of Charlie Posanau & David Koyama -v- The State and quoted the following passage with respect to guarantors:

“We have noted that the proposed guarantors are all related to the applicants. On these grounds, we are of the view that there may be some apprehension of bias and conflict of interest involved. The risk of absconding bail might be much higher as compared to a guarantor who was a neutral person”.

33. The Supreme Court in that case also relied on the case of Malaki Korgo and Joe Alus -v- The State [1996] N1554 and Paul Guam -v- The State [1999] N3576.

34. In the case of Paul Makovu, Cosmos Mave, Joe David and Willie Seneka -v- The State (Supra) His Honour Kawi J with reference to an unreported case delivered by himself said:

“As much as possible applicants for bail must be very careful when nominating relatives and family members as guarantors. Persons who accept to be guarantors should be neutral persons. I do accept that because these are all family members there is a reason to argue that there may possibly be some apprehension of bias and conflict of interests involved. The fear of absconding bail is real here than if a neutral person was nominated. I would not approve the two guarantors as proposed”.

35. He then went on and said that:

“I would adopt and apply those comments here. The chances one of the guarantor,Julius Dede placing himself in a conflict of interest situation is very real here than if neutral persons were nominated. There is also the possible apprehension of bias on his part which I find is real here than in the case of Augustine Tori who I find is more neutral person. I doubt that Julius Dede will do any better job now than he was before the commission of the crime. Despite their many undertakings I am not convinced at all the accused persons will ever listen to their guarantors or bring themselves under their restraining influences. If the accused persons were law abiding, “honest, decent and peace loving” citizens as they claim they are, then they should not have been involved in the alleged killing of another person”.

36. There is clear evidence that Gordon Kairu is the uncle of the accused. The prospect of the guarantor Gordon Kairu placing himself in a position of conflict of interest situation is very real in as far as the allegation of wilful murder in this matter is concerned. Furthermore, the deceased is also related to him whose name is Lester Kairu.

37. I am therefore hesitant in granting bail. Hence the application for bail filed by the applicant Edmund Gordon Kairu is refused and that the said Edmund Kairu is to remain in custody until the trial of the matter unless he makes a fresh bail application.

38. The final orders are as follows:

(i) Bail is refused
(ii) the accused/applicant is to be remanded in custody until the trial of the matter.

________________________________________________________________
Public Solicitor: Lawyer or the Applicant
Public Prosecutor: Lawyer for The State