Joe Bal Junior and The Independent State of Papua New Guinea (2009) N4206

• Jurisdiction: Papua New Guinea
• Judge: Sagu AJ
• Judgment Date: 15 October 2009
• Citation: (2009) N4206
• Docket Number: MP NO 693 of 2009
• Court: National Court
• Year: 2009
• Judgement Number: N4206

Full Title: MP NO 693 of 2009; Joe Bal Junior and The Independent State of Papua New Guinea (2009) N4206

National Court: Sagu, AJ

Judgment Delivered: 15 October 2009

N4206

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NO 693 OF 2009

JOE BAL JUNIOR

Applicant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Kundiawa: Sagu, AJ

2009: 15th October

CRIMINAL LAW – practice and procedure - bail application- willful murder charge: compensation payments not exceptional factor to grant bail – guarantors - family members and relatives with reputation and standing can be safe guarantors – increases accused obligation to answer bail

Cases cited:

Re Fred Keating -v- The State [1983] PNGLR 133

Re Kou Kua [1984] PNGLR 22

Malaki Kongo & Joe Akusi -v- The State (1996) N1544

Michael Aia & Michael Maneba -v- The State (2001) N2124

Jonathan Hembi v. State (2008) N3463

Guant v. State (2009) N3576

Counsel:

Ms. Josephine Kilage, for the Applicant

Mr.Steven Kesno, for the Respondent

RULING ON APPLICATION FOR BAIL

15th October, 2009

1. SAGU AJ: The Applicant applies for bail pursuant to section 42(6) of the Constitution and ss 4 and 6 of the Bail Act after he was charged with one count. Firstly for the wilful murder of one, Rose Waras- Kuipa on the 15 day of September 2008 contrary to section 299 and secondly for the attempt murder of Billy-Kuipa on the 16 September 2008 contrary to section 304 of the Criminal Code Act.

BRIEF FACTS

2. The brief facts alleged by the State as contained in the summary of facts are that on the night of the 15th of September 2008, the Applicant, Joe Bal Junior in the company of others dragged Rose Waras Kuipa out of the Man’s House and out into the nearby bushes and murdered her and hid the body somewhere not to be found. Thereafter, between 2.00 -3.00 am the same night but on the 16.9.08 the Applicant and his group armed with bush knives, axes and stones attacked Billy-Kuipa the husband of the deceased and Doris Kuipa his second wife where the victims suffered wounds to their head and chest and fracture to the central pelvis bone. Both of the victims were taken to the Kundiawa Hospital for treatment.

3. In making this bail application the Applicant relies on his affidavit and the Two Guarantors’ affidavits being Pius Temai and Betty Franky all sworn and filed on 5.10.09.

PERSONAL BACKGROUND.

4. The applicant is aged 45 years and is married with five (5 ) children of which two (2) are attending Kerowagi Secondary High School while one is in grade 7 and the other two with their mother. The Applicant has a clean record having no prior conviction.

5. The Applicant’s wife is employed as the Treasurer of Karamui Nomane District in the Simbu Province and he looks after the children while she goes to work.

GROUNDS FOR APPLICATION

Denial of Charge & Family Livelihood

6. The grounds for seeking bail, are that the Applicant vigorously denies the offence and says that he did not commit the offence. At the moment he does not know how his family is managing and is hoping he could continue his role if and when released on bail. He further states that he operates a stationary business in his house. The profit generated helps him pay for his children’s school fees which is approximately K3,000.00. He is worried for the education of his children and their future and needs to be out on bail for these family reasons.

Prolong Detention

7. The Second ground for this bail Application is that the applicant says he has been in custody for over 8 months and it is unlikely that his case will come up quickly due to the long list of outstanding cases pending before the National Court here in Kundiawa. He seeks bail pending his trial.

Medical Grounds

8. Further the Applicant says he suffers from an eye sight problem on his right eye and that he usually gets regular treatment but now it is limited since he is confined. He says he also suffers from heart or gestural burn for which he also gets regular treatment however this also is limited due to confinement in custody. In addition the Applicant undertakes to abide by any bail conditions set by the Court if granted bail.

GUARANTORS

9. The Applicant proposes two guarantors, Pius Temai and Betty Franky both having deposed to two Affidavits. They are willing to become guarantors having understood the consequence in the event that the Applicant absconds bail if granted. They undertake to ensure that the Applicant comply with all bail conditions. They pledge a sum of K350.00 each as surety.

10. Pius Temai in his affidavit says he is an elderly person with grown up children residing at Wara Simbu. He is employed by the Simbu Provincial Government, attached to the Traffic Registry Division. Upon further enquiry by the Court, counsel submits he is also a Provincial Customary Lands Officer with the Provincial Government.

11. Betty Franky lives in Wara Simbu which is in Ward 6 of the Kundiawa Urban Local Level Government. She is a Board member of the Kundiawa General Hospital in Simbu Province. She is a community leader and the female representative in her council ward area.

PARTIES’ SUBMISSIONS

12. Ms. Kilage of counsel for the Applicant submits that whilst the charge against the Applicant is a serious charge of Wilful Murder and bail is not readily available, there are at least three good and justifiable reasons for the Applicant to be released on bail. First, she submits on the Applicant’s family and livelihood. The Applicant’s stationary store is defunct and is not able to make money to support his children’s school fees due to his detention. He is concerned about his children’s welfare when his wife goes to work. Secondly, Counsel submits that her client needs medical treatment to his right eye which he cannot see, and further he complaints of constant chest burn.

13. Thirdly, he submits that there is a long list of outstanding cases before the National Court here in Kundiawa. As such, it would take a long time before the Applicant would be tried by the National Court, thus he should be granted bail pending his trial.

14. Fourthly, the Applicant submits that there is peace in his community since the Applicant’s relatives have paid compensation of Eleven Thousand Kina (K11,000) during the week end. Since peace is in the community he should be allowed out on bail

STATE OBJECTION

15. The state objects to bail under section 9(1) (c) that the offence consisted of serious assault by the use of offensive weapons such as bush knives, axes and stones and further the State objects on the ground that there is a real likelihood that the Applicant would interfere with state witnesses under s 9(1)(f) Bail Act. The state relies on the affidavit of Mr. Kesno which has medical reports attached to it. I also acknowledge the summary of facts and the information charged attached to his affidavit which is crucial information for this Court in consideration to the bail application which the Applicant bears the onus to providing particularly where there is counsel representation in such application.

16. The State further submits that there is no other independent evidence supporting the applicant’s medical conditions and the family’s livelihood needs. He further states that compensation payments should be treated as perverting the cause of justice and in fact this practice has derailed accused persons from being brought to trial in the proper administration of justice and the Court should not take that into account. Lastly, the state objects to the guarantors as being not independent and therefore should not be acceptable by the Court.

LAW ON BAIL

17. Bail is not available to this Applicant as of right. This is because section 42 (6) of the Constitution does not give automatic right to bail for persons charged with treason and wilful murder. However, the Bail Act gives power to the National Court to hear application for bail in respect of wilful murder. The power to grant or not to grant bail is a discretionary one.

18. Both the Supreme and National Courts have a wide discretion to admit an Applicant to bail even where one or more considerations under section 9(1) of the Bail Act are present, the onus is on the Applicant to show why his detention in custody is unjustified: see Re Fred Keating [1983] PNGLR 133 and Re Kou Dua [1984] PNGLR 22.

19. The applicant raised the following issues in supporting why his detention in custody is not justified. It be said that the long delay be a ground to grant bail under this criteria of exceptional grounds.

20. His Honour Batari AJ, (as he then was)in Malaki Kongo & Joe Akusi -v- The State (1996) N1544 gave some examples of exceptional grounds. There, His Honour said:

“Although the provision of s. 9(1) (c) has been established, there is a discretion in the Court to grant bail. The onus is on the applicants to show why their detention in custody is not justified (Re: Fred Keating’s Case). By the time the accusers are brought to trial in April, 1997 they would have spent over 12 months in custody if they are not released on bail. This is a relevant consideration in...