Can I Get Bail for Wilful Murder or Murder in PNG?

Yes — but the answer is different depending on which homicide charge you are facing, and almost nobody outside the profession knows why. The distinction between wilful murder and murder decides whether you walk into court with the Constitution behind you or in front of you.

The line the Constitution draws

Section 42(6) of the Constitution entitles a person arrested or detained for an offence to bail at all times — “other than treason or wilful murder as defined by an Act of the Parliament.”

Read those words carefully. The carve-out names treason and wilful murder (section 299 of the Criminal Code). It does not name murder (section 300) or manslaughter (section 302).

That produces three positions, not two:

(The manslaughter position follows from the words of section 42(6) and the fact that manslaughter is not named in section 4 of the Bail Act, rather than from a decided case.)

What losing the presumption does — and does not — do

Losing the section 42(6) entitlement is not the same as being ineligible for bail. This is the single most misunderstood point in PNG bail law.

In Dr Theo Yausase v The State (2011) SC1112, the Supreme Court held that an applicant charged with wilful murder does not enjoy the presumption in favour of bail — but still enjoys the benefit of section 9(1) of the Bail Act. That means bail can only be refused if the court is satisfied one or more of the ten section 9(1) circumstances applies; and even where one does apply, the court is not obliged to refuse bail. The decision remains a matter for the court’s discretion.

That confirmed at Supreme Court level what Fred Keating v The State [1983] PNGLR 133 had held by majority thirty years earlier: the grant or refusal of bail under section 9 is discretionary even on a wilful murder charge (Kidu CJ and Andrew J; Kapi DCJ not deciding). Keating also set the applicant’s task — once a section 9(1) ground is established, bail should be refused “unless the applicant shows cause why his detention in custody is not justified.”

For a murder charge, Felix Kange v The State (2016) SC1530 is the authority to know. The Supreme Court held that because the applicant was charged with murder, he did enjoy the section 42(6) presumption; that if the State opposes bail it should establish a section 9(1) circumstance; and that even then the court retains a discretion.

But the presumption does not do the work for you. The Court still required Kange to show that his continued detention was unjustified — and, finding that his business, family and health grounds did not do so, refused bail.

Which court, and why it matters

Section 4 of the Bail Act provides that a person charged with wilful murder, murder or an offence punishable by death shall not be granted bail except by the National Court or the Supreme Court. A District Court magistrate has no power at all. Going to the wrong court simply wastes weeks you spend in custody.

The practical trap: section 9(1)(c)

On any homicide charge the State can almost always point to section 9(1)(c) — that the alleged act consists of a serious assault, a threat of violence, or having or possessing a weapon. The section 9 threshold is therefore cleared as a matter of routine.

Which means the case is almost never won or lost on section 9. It is decided at the discretion stage, on the strength of your affidavit material.

What actually works

Attack the State’s evidence for its objection. In Vela Wari Vele v The State (2004) N2701 — a wilful murder charge — the State’s objection that the applicant would interfere with witnesses failed because it rested on the investigating officer’s belief. The Court was blunt: “It is not enough for the State through the Investigating Officer to state its belief; it is obliged to call or rely on credible evidence.”

Produce evidence, not assertion. In Francis Dokono v The State (2018) N7183 bail was refused because the affidavits were “very brief”. The same case warns against complacency where the State does not object: the Public Prosecutor choosing not to oppose “does not mean the court should as a matter of course grant bail.”

Bring guarantors who are credible and unconnected. A police reservist has been rejected as a guarantor for conflict of interest. “The village” is not an address.

What does not work

• Delay on its own. In David James George v State (2018) N7230 the applicant had been in custody over a year after committal. Bail refused — prolonged detention is not by itself determining.
• Family and business hardship on their own. In Wani Nenekan v The State (SC2514, 2023) — a murder charge — hardship to two wives and five children plus a collapsed business were described as the natural consequences of the criminal process.
• Asserting your innocence. Yausase: whether the applicant is innocent “is not a matter before this court.”
• Vague health worries. In Julius Kesno v The State (2012) N5264 — wilful murder, grievous bodily harm and serious assault — the applicant relied on overcrowding and tuberculosis among detainees, while the State pointed to his having no fixed residential address. Bail was refused.

The realistic summary

If you are charged with murder, you start with the Constitution on your side and still have to persuade the court that continued detention is unjustified. If you are charged with wilful murder, you start without the presumption but with section 9(1) still protecting you and a real discretion available. In both cases the National Court is the only door, and in both cases the application is won on documents — medical reports, welfare reports, employment records, a solid guarantor — not on speeches.