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Kange v Independent State of Papua New Guinea [2016] PGSC 75; SC1562 (3 November 2016)

SC1562

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APP NO 15 0F 2016

IN THE MATTER of an Application for Bail pursuant to Sections 4 (1) (a), 6 and 13 (2) &6 (1) of the Bail Act Chapter 340

BETWEEN:
FELIX KANGE

Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani: Kandakasi, Toliken&Polume-Kiele JJ

2016: 26^thOctober, 03rd November

BAIL – Application to Supreme Court after refusal of bail by National Court; Bail Act, Section 13(2) – Applicant charged with murder – Relevance of considerations in Bail Act, Section 9(1) – Whether applicant needs to establish circumstances warranting bail.

Facts:

The applicant, who was detained in custody in connection with a murder charge, applied to the Supreme Court for bail for the second time after his first was rejected. This was after a refusal of two earlier separate applications by the National Court. The State opposed the first of the two applications before the Supreme Court. The objection then was based on s.9 (1)(c)(i), (ii) and (iii) of the Bail Act because the alleged act constituting the offence in alleged committed by the applicant consists of a serious assault, a threat of violence and possession of a firearm. The applicant argued that he should be granted bail as he was innocent of the charge, his business interests were adversely affected by his continuing detention, his health is poor and the welfare of his family has been greatly affected by his detention. The Court rejected those arguments and declined the application. The second application was based on claims of threats of personal harm, injury or death to the applicant from fellow remandees or prisoners in the prison.

Held:

1. In the absence of an expressed authorisation by the Bail Act or elsewhere for a fresh application to the Supreme Court after an earlier failed application before it, the Supreme Court could have jurisdiction to deal with a further application only on the basis of a changed circumstance since the last failed application.
2. An applicant in a second or further bail application in the Supreme Court, must demonstrate to the satisfaction of the Court that there has been a material change in circumstances since last refusal of bail that warrants grant of bail in order to persuade the Court to grant the application.
3. An applicant charged with murder enjoys a presumption in favour of granting of bail.
4. If one or more of the circumstances in Section 9(1) applies, the court is not obliged to refuse bail but it is within the bail authority’s discretion to decide whether or not to grant bail.
5. An applicant charged with murder must, in order to convince the court to exercise its discretion in his favour, show that his continued detention is unjustified.
6. Issues of threats of intimidations, harassments, or personal injury or death to a prisoner or a remandee by other prisoners or remandees is not a circumstance that warrants the grant of bail but appropriate measures to be taken by the Correction Services through the Commissioner and is relevant officers: See Re Application of Paul Tiensten (2014) SC1343.
7. In the present case the applicant did not establish a credible case of intimidations, harassments, or personal injury, harm or death and in any case how those are beyond the duty and responsibility of the Correction Services to deal with effectively and ensure the threats are not acted upon.
   

Cases cited:

Benson Titus v. The State (2001) N2043
Bernard Uriap v. The State (2009) N3822
Dr Theo Yausase v. The State (2011) SC1112
Fred Keating v. The State [1983] PNGLR 133
Jeffrey Osara v. The State (2001) N2042
Joe Apau v. The State (2010) N4073
Joe Puksy Purari v. The State (2001) N2077
Noah Karo v. The State (2009) SC998

Philip Maru &Arua Oa v. The State (2001) N2045
Tamara Player Tomscoll v. The State (2012) SC1208
The State v. Paul Tohian [1990] PNGLR 173
Theo Yausase v. The State MP No 12 of 2011, 22.02.11
Thress Kumbamong v. The State (2008) SC1017

Counsel:

G. Shepherd and G. Salika, for the Applicant
T. Toke, for the Respondent

3^rd November, 2016

1. BY THE COURT: The Applicant Mr. Felix Kange is applying to this Court for the second time within a space of under two months since his first failed application for bail on 2nd September 2016. He is charged with the murder of one Regina Morove, his then wife, at Gardens Hills, Port Moresby, NCD, on 14 May 2016, with the use of a firearm in the presence of other people at his home. The Applicant has been in custody in connection with that charge since 30^th May 2016, following his surrendering to the Police. Prior to his first application to this Court, he made his first ever bail application to the National Court, constituted by Justice Manuhu on an initial charge of manslaughter which was refused. Eventually the charge got upgraded to murder following which the Mr. Kange applied for bail before Salika DCJ on 15^th of June 2016 and which application was also refused. The grounds he relied on included adverse impact on his family, especially a 6 months old child, his business and a medical condition, which were the same grounds he was raising before this Court in his first application. In this application, the applicant is claiming he has received threats of violence or death against him. Three Correction Service (CS) officers have filed affidavits in support of the applicant, while the State filed one affidavit from the Bomana Prison’s Commanding Officer who deposed that the incidents giving rise to Mr. Kange’s claims are under review thereby suggesting a need for inquiry and confirmation as to their occurrence and appropriate responses. The police investigations have now been concluded and the matter is pending conclusion of the committal process.
   

Court's Jurisdiction

2. This application is pursuant to the provisions of Sections 4 (1) (a), 6 and 13(2) of the Bail Act. The provisions of s.4 (1) (a) and 6 vest power in National and or the Supreme in respect of the right to bail for persons charged with wilful murder, murder or an offence punishable by death. The most relevant provision in this case is s.13 (2) of the Act. This provision reads:
   

“Where a person is refused bail by a Judge of the National Court he is entitled to apply for bail, immediately if he so desires, to the Supreme Court.”

3. Obviously, this provision does not provide for the kind of application now before us, which is a second or further application before the Supreme Court after refusal of an earlier application. Neither of the parties addressed this point by reason of which it was not an issue before us. In view of that, we are prepared to let that issue be an issue for a future case to appropriately raise and for it to be considered and determined then.
   
4. For the case before us, we are prepared to allow ourselves to be guided by case authorities like the one of Noah Kero vs. The State (2009) SC 998. These line of cases speak of two different scenarios. The first is a fresh application and the second is based on a change of circumstances. At paragraph 6 of its judgment in that case, the Supreme Court said:
   

“6. They are different because the principles governing their application are different. In an application for bail based on change of circumstances, an Applicant is required to establish that circumstances have changed since the last application for bail was refused and the onus lies on the Applicant to establish such circumstances. He must demonstrate that the grounds upon which the National Court had refused bail have changed or no longer existed. Further, the circumstances must be relevant to the earlier application for bail. Only then will the Supreme Court grant bail.”

7. In the case of a fresh application for bail, the Court may “rehear” the application for bail. This means that first, an Applicant may raise the same grounds relied upon in the last application for bail before the Supreme Court for consideration. In other words, an Applicant is not required to establish that circumstances have changed since the last application for bail was refused. Secondly, the Applicant is entitled to raise any new grounds to support the application for bail. See the State v Paul Tarcisius Tohian (1990) PNGLR 173.”

5. These principles have been subsequently accepted, adopted and applied in a number of cases. One such case is that of Gilbert Guari v. The State (2015) SC1446.
   
6. In the instant case, the applicant made his fresh application under s. 13 (2) before the Supreme Court on the 1^st of September 2016. That was refused on 2^nd September 2016. The application before us is his second. Given the absence of any express provision for a fresh application for bail in terms similar to s. 13(2) and in circumstances where the Supreme Court has refused the earlier bail application, we can only consider this application as being one that is made on the basis of a change in circumstances, where a presumption in favour of bail still exists.
   

Present Application

7. With the above principles in mind we now turn to consider Mr. Kange’s application. As noted already, Mr. Kange’s claim is based on the fear that continued incarceration is risky and unsafe for him as he has received intimidations, harassment and threats of violence and/or harm, injury or death. Relevantly, his affidavits in support of his application are in the following terms:
   

(a) Affidavit of Felix Kange sworn on 20^th and filed on 25^th September 2016 at paragraphs:

“8: Since the refusal of bail by the Supreme Court I have been threatened with harm of violence to me by those persons whom I had a hand in causing their incarceration through my work as a lawyer and/or as a reserved policeman. Given previous deaths and the number of assaults of prisoners by other prisoners in the CS Custody, there is a real danger that I may be assaulted and/or killed by the persons who have issued these threats and I am fearful for my personal safety and my life.”

(b) Affidavit of Felix Kange sworn 28^th and filed on 29^th September 2016 at paragraphs:

“4. I am currently incarcerated at Cell Block 6B, at Bomana Gaol. I initially received verbal threats when I was first locked up at Waigani Police Station Cell.

5. I was approached by a number of remandees also in the lock up at Waigani Police Station Cell and they told me that they will be waiting for me at Bomana. At Bomana I noticed that those same persons that were at the Waigani Police Station were also there and are detained in Cell Blocks A1,A2,A3,A4 and A5. These are Cell blocks for those persons in remand awaiting their appearance in court.

6. On one occasion shortly after the decision of the Supreme Court refused my first application for bail, whilst I was having my dinner ,I noted the same persons who had threatened me earlier, gather in a group outside the mess. When I walked outside they approached me and one of them verbally told me that they would “ Kill me” I am not aware of the basis of the threats. These threats may stem from my job as a lawyer or as a reserve policeman”

(c) Affidavit of John James (Corporal - Bomana Prison) sworn 28^th and filed on 29^th September 2016 at paragraphs:

“5. I am aware that the applicant has been threatened with acts of violence by other prisoners also incarcerated at Bomana Goal since the time of his incarceration.

6. The Latest instance of the threat against the Applicant being on or about 27 September 2016. I noted a group of prisoners, about 5 in number gathering in the court yard. As part of my duties, I approached them in a discreet manner to ascertain what they were meeting about. I overheard one of them make mention of the Applicant by name and reference to the alleged crime he had committed and then say words to the effect that he would be “dealt with”. At this point, the group of prisoners realised that I had taken an interest in their conversation and they dispersed quickly. I made a mental note of their threats and continued my duties.”

(c) Affidavit of Gabriel Korane (Private – Bomana Prison) sworn on 13^th and filed on 14^th October 2016 at paragraphs:

“8. On 1st October 2016 at about 2230 hours as I was on foot patrol near cell block 8B and I heard some conversation coming from inside cell block 8B. I quietly moved close against the walls of the cell block to make out what the conversation was about. The prisoners are supposed to maintain silence at this time.

9. As I moved against the wall of the cell block I heard the applicants name being mentioned and I heard a prisoner say “ Bai umi kisim em inside lo compound” (“we will get him in the compound”). I am not able to identify who these prisoners were as it was dark.

10. It then became apparent to me that these prisoners were talking about a possible attack on the Applicant in the main compound. I then spoke in harsh tones in the direction of where I thought the prisoners were having their conversation and asked, “ Upla toktok lo wanem samting stap?” (“What are you all talking about”). I heard some noise as if the persons having discussions were rushing to their beds and then one voice responded and said “ mipla story tasol” (‘we are only telling stories”). I was unable to open the cell door and investigate further given the 1600 hours policy.”

11. I am aware from my experience as a CS Officer that most “grassroots” prisoners have ill will and ill feelings towards other prisoners who are politicians, lawyers and wealthy businessmen out of jealousy and envy and nothing else. The ill feelings also extend to persons who are/were policemen. The ill will also extend to fellow inmates who may have assaulted ,murdered, raped or stolen from a relative or known associate of another prisoner also incarcerated at Bomana Gaol.

12. I can say that all the prisoners at Bomana are aware that the Applicant is a lawyer and that he is charged with murder of his young wife. I can sense a lot of animosity towards the Applicant from those prisoners who hail from the same region as the Applicants deceased wife and the general prison population perhaps because the Applicant is a lawyer and/or businessman, I am unable to say. I believe that the safety of the Applicant is at risk and it is only a matter of time before he is physically harmed.

13. I depose to the matters in my affidavit on my own volition and free will and I have not been paid any money by the Applicant or anyone else in respect of the matters deposed to in this affidavit.”

(d) Affidavit of Cletus Yaki, (Senior Inspector - Bomana Prison) sworn on 13^th and filed on 14^th October 2016 at paragraphs:

“5. On 3 October 2016 I received an incident report from Gabriel Korane regarding an incident that had occurred on 1 October 2016 at 2300 at cell block 8B where he had heard verbal statements being made by prisoners inside that cell block threatening the safety of the Applicant.

6. As a result of the incident report by Gabriel Korane, I have engaged the standard operation procedure by CS officers when threat or harm against prisoners are made by other prisoners and reported to me. I and the men under my command are closely monitoring the movements of the Applicant within the maximum security enclosure to the best of our ability, however I am unable to guarantee the safety of the applicant as there are 850 other prisoners we have to guard. The Applicants safety is at risk.

7. I seek leave and refer the affidavit of Gabriel Korane. I have read those matters deposed to at paragraphs 11 and 12 of his affidavit and confirm and verify those matters which he states therein

8. I depose to the matters in my affidavit on my own volition and free will and I have not been paid any money by the Applicant or anyone else in respect of the matters deposed to in this affidavit.”

State’s Evidence

Affidavit of Haraha Kiddy Keko (Commanding Officer Boman Prison) sworn and filed on 25^th October 2016, paragraphs

“5. I am the only authorised person to release information relating to concerns of detainees, if any, here at the Bomana Correctional Institution.

6. From the 3rd – 7th of October 2016, I attended a conference at March Girls, Gaire outside of Port Moresby. If any had happened within this period, my senior officer on the ground would advise me.

7. I have received reports lately on the Applicants situation from my Operations Manager Senior Inspector Cletus Yaki. In the meantime am instructing my officers to review the report and of course the specific incidents that detainee is complaining about”

8. From these affidavit evidence, we note the following as very critical and important:
   

(1) No names or other details of the persons allegedly issuing the alleged threats on each of the days and incidents are given or disclosed especially when Mr. Kange says he has dealt with some of them;

(2) For the persons Mr. Kange says he may have had a hand in their incarceration, he should be able to know how and in what way and for what offence he dealt with such persons but no such information is disclosed;

(3) The CS officers who have given evidence in support of Mr. Kange were in a position to deal with those who were responsible for issuing the threats and should be in a position to disclose the names of the persons responsible, why those persons issued the threats and that they have been dealt with appropriately but there is no evidence in these terms;

(4) There should be a formal recording of each of the instances and copies of such incident reports should have been furnished in evidence but was not done;

(5) Each of the CS officers who have given evidence for the applicant each deposed to not been paid to give their evidence when there is no reason to volunteer that evidence;

(6) More importantly, the Commanding Officer of the Bomana CS says he was attending a conference not too far from the prison and he would have been informed of the incidents as they occurred. He was not so informed but was belatedly informed. He caused a review to establish the incidents to confirm or verify and deal with them;

(7) In view of the Commanding Officer’s evidence, it is clear that the alleged incidents of threats remain to be verified and confirmed if they ever occurred; and

(8) Except only for the alleged threats of violence and death, there is no evidence of any change in circumstances from the circumstances that prevailed as at the time of the first failed application.

9. Given the foregoing factors we are not persuaded that, the claims of threats of violence, death or otherwise personal harm or injury to Mr. Kange are credible. Accordingly, we are not able to find the claims having being made out as facts. They are instead mere allegations with no factual foundation. Hence, nothing can turn on these allegations.
   

Law on Risks in Prison

10. Further the law is clear. This is not the first time an applicant for bail has raised the kinds of issues raised by Mr. Kange. Not long ago in the case of Re Application of Paul Tiensten (2014) SC1343 raised similar issues. Interestingly, Mr. Sheppard who was counsel for the applicant in that case is also the counsel in this case for Mr. Kange. Hence, the Paul Tiensten case with its application should be familiar to counsel for the applicant. In the Paul Tiensten case, the Supreme Court noted that the applicant was a former prominent politician convicted to serve his sentence in prison claimed:
    

“‘serious threats’ to safety and life and are said to have started the moment he entered the prison. They are enumerated as continuing threats to life, hurling of verbal abuse and harassment and actual hurling of stones at his person. The latter are said to have been near-misses, except for actual contact having been made once.

... All these are alleged to have been perpetrated by fellow inmates from the general prison population, having been provoked, ... by the applicant’s status/position in society before conviction and imprisonment, more particularly as a national legislator directly involved in recent amendments to the law increasing prison sentences. The applicant deposes that on 12 April 2014 he lodged a formal complaint with the Commander of the gaol about the threats, abuse and harassments, which complaint, he asserts, have so far not elicited any positive response.”

11. The Court gave a detail consideration of the Correctional Service Act 1995, (the CS Act) which governs the CS and noted at paragraph 35 of its judgment that:
    

“The Correctional Service Act 1995 codifies the law on the establishment and operation of the Service, and provides for its functions and powers, as well as the functions and powers of its members, commencing with that of the Commissioner of the Correctional Service.”

12. Then at paragraph 38 the Court went on to observe:
    

“Under Part VIII of the Act (ss 71 to 115) elaborate provisions are made in respect of security and control of correctional institutions. Immediately pertinent to the claims and concerns of the applicant which have been advanced here as justifying grant of bail are the ‘Visits’ to these institutions by certain authorities (apart from relatives and friends who can and should report to outside authorities): Judges and Magistrates (s 73); Member (or an officer) of the Ombudsman Commission (s 74); Lawyers (s 75); and, a Person authorized by the Minister or Commissioner (s 76). In relation to the health and welfare of detainees, provisions exist for conduct of medical examinations and tests: see ss 88 to 91 (inclusive). Under s 96 of the Act (Power to Transfer Detainees):”

13. Having regard to the provisions made in the CS Act as well as the provisions of s. 57 of the Constitution the Supreme Court ultimately concluded at paragraphs 50 and 51:
    

“50. The complaints and concerns of the applicant, which we accept, in the absence of evidence to the contrary, had not one, but several avenues for ventilating and obtaining relief and remedies. These very issues and concerns are the very subject matters of the provisions under the Act regarding ‘welfare and safe custody’, ‘security and control’ within the statutory duties and responsibilities of both the Commissioner and Gaol Commander. Informal mechanisms or external supervision for dealing with the incidents that the applicant relies on for this application, are well taken care of in the legislation itself by the ‘Visits’ provisions. The outcomes of these visits can quite capably (if properly utilised by a prospective appellant or indeed any inmate) provide the background and impetus for invoking s 57 Constitution (supra). The very next provision (s 58 – Compensation) reinforces the powers of the courts in the preceding provision.

51. We are satisfied that all the administrative and formal legal avenues elaborately provided for under the Correctional Service Act and the Constitution have not yet been properly availed of and exhausted before coming to this court sitting on a bail application.”

14. We agree, accept and adopt these views and the principles enunciated therein. Additionally, we are of the view that, if the Courts were to readily grant bail on allegations of the type that was before the Court in the Paul Tiensten case and now before us, that would be seriously counterproductive to having a criminal justice system based on the rule of law and on the principles of all persons being equal before the eyes of the law. A ready grant of bail on the basis of risks of personal harm, injury or death to a well to do prisoner or a remandee, would clearly announce to the world at large that the criminal justice system discriminates on the basis of social status. The more high profile and affluent a prisoner or a remandee is, the lesser the likelihood of loss of liberty than persons lower in status. Effectively, this would encourage more criminal behaviour and/or conduct by the high profile and affluent in society. This would in turn go against one of the most important purposes of criminal sentencing and imprisonment, which is to deter other possible offenders and not to discriminate on the basis of social status. The greatest deterrence comes from appropriate treatment of a person of influence or a person higher up on the social ladder in society whilst the opposite would no doubt be the case if we were to readily let such an offender get out on bail.

15. Additionally, a grant of bail on the basis under consideration would undermine and diminish the role of the CS. The role of the CS is to help keep and correct all offenders in society and not just one class or part of the society. There has to be an assumption in favour of the prison system functioning well with competence adequately providing for all categories of prisoners from the mighty to the weakling, to the powerful to the timid and the financially well off to a man of straw or a simple person in life. This is necessary to give confidence to our people or our country that the prison system is well placed to deliver on its legal and social duty and responsibility for the safety and wellbeing of our people and society. Given that, the CS needs to be allowed to play its part and role in society as defined and provided for by law. The Courts should be slow to interfering through the ready grant of bails because of allegations or claims of risks to a prisoner’s or a remandee’s life inside our prison system. No doubt there would be the occasional most exceptional case that defies the CS’s best efforts to address a particular challenge or situation. But this has to be identified and must come through the process well described and set out in the Paul Tiensten case.
    

A further point we wish to make is the fact that it is a well settled principle of law that bail could be denied for an offender or an alleged offender's own safety. Indeed that is spelt out in s.9 (e) of the Bail Act in terms bail being refused because: “it is necessary for the person’s own protection for him to be in custody...”.

The Present Case

16. Applying the above legal position and discussions to this case, we first reiterate our finding that Mr. Kange failed to establish a credible case of threats to his life or his person. Secondly, he failed to establish to our satisfaction that, the CS is in no position to discharge its duties and responsibilities under the CS Act and generally and that this is an appropriate case in which the Court must intervene. Instead, we find that the process under the CS Act remains to be exhausted. Thirdly, the applicant has not demonstrated that any other change in circumstances since this Courts first refusal of his bail application on 2^nd September 2016has occurred which warrants reconsideration and a grant of bail. Consequently, the earlier findings and decision of this Court remains intact. Fourthly, if despite our finding Mr. Kange is faced with the kinds of threats he is claiming, we wonder how much more riskier it would be for him outside the protective gates of the prison at Bomana. We are of the view that his safety might be in the prison and not outside. In these circumstances we are not convinced that the applicant should be granted bail. Accordingly, Mr. Kange's application is refused. He shall be remanded in custody awaiting the completion of the committal process, and if need be his trail.

_______________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyer for the Respondent