DC7013

Papua New Guinea
 
[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION
 
COM NO 1420 OF 2021
CB 4074 OF 2021
 
BETWEEN:
 
RACHAEL PINDA
[Informant]
 
AND:
 
SAMUEL DIRE
[Defendant]
 
Waigani: Paul Puri Nii
 
17th November 2021
 
COMMITTAL PROCEEDINGS: -Charges- Persistent Sexual Abuse -Section 229D(1)-Sexual Penetration-Section 229A(1), Abuse of Trust-Section 229E(1) and Incest -Section 223(1) of the Criminal Code Act 1974, Chapter No. 262. Second application for bail after the first bail application was refused.
 
PRACTICE AND PROCESS: Fresh bail application was Refused-Evidence of interference with Police witness- victim and her Mother-Second application for bail- abuse of process-refused.
 
PNG Cases cited:
 
Nil
 
Overseas cases cited:
Nil
 
References
 
Legislation
 
Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40
Bail Act
 
Counsel
 
Police Prosecutor    : Peter Samghy      For the Informant
Public Solicitor        :  Bosky Koky          For the Defendant
 
DECISION ON BAIL APPLICATION
 
17th November 2021
 
INTRODUCTION

NII, P. Paul Magistrate. This is an application for bail filed by the Defendant on 4th November 2020 after the first Bail application filed on 9th February 2021 was refused by the same court on 4th March 2021.
 
FACTS
 
1.	Police allege that Defendant is 36 years of age and from Kimil village in Banz, Jiwaka Province. The victim is aged 13 years at the time and is related to the accused as his biological daughter. She is the Defendant’s first biological daughter. Police allege that on 19 November 2020, Defendant forced his daughter to touch and suck his penis after he was under the influence of liquor when the mother was away a neighbor’s house. The child refused but Defendant forced and threatened her to entertain him which the victim out of fear obeyed and did as what his father commanded until the victim’s mother and Defendant’s sister caught the Defendant in the alleged act and reported it to police who subsequently arrested and charged the Defendant. Defendant is now in custody after his first bail application was refused by same court in March 2021.
 
CHARGES
                                   
2.	Defendant is charged with one count each of Conspiracy under Section 407(1)(a)(c) of the Criminal Code Act 1974, Chapter No. 262. The charge against the Defendant is illuminated in the subsequent style:
 
“229A.     Sexual Penetration of a child.
 
[1](1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime. Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding 25 years.

 
‘229E. Abuse of trust, authority or dependency.
 
[2](1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime. Penalty: Imprisonment for a term not exceeding 15 years.’
 
“229D. Persistent sexual abuse of a child.
 
[3](1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent abuse of a child. Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.”
 
“223.  Incest.
 
[4](1) A person who engages in an act of sexual penetration with a close blood relative is guilty of a crime. Penalty: Imprisonment for a term not exceeding seven years.”

ISSUE
 
3.	Whether Evidence in the Police file is sufficient to Commit the Defendant.
 
BAIL APPLICATION
 
4.	 Applicant filed an application for Bail under Section 42(6) of the Constitution and Sections 4 and 6 of the Bail Act.
 
 Section 42(6) of the Constitution.
 
“A person arrested or detained for an offence (other than treason or willful 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”.
 
Section 4-Bail Act.

“ Only the National or Supreme Court may grant bail in certain cases.
 
[5](1) A person–
 
(a)      charged with wilful murder, murder or an offence punishable by death; or
(b)      charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or breaking and entering a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence,
shall not be granted bail except by the National Court or the Supreme Court.
(2) For the purposes of Subsection (1), “firearm” includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile”
 
Section 6- Bail Act –
 
“Application for bail may be made at any time.
 
(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.
(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.
(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section 9.”
 
5.	The application is supported by the Affidavit of Samuel Dire the Defendant and 2 guarantors namely Paul Anda and Steven Wangewa.

6.	Defendant stated in his Affidavit at Paragraph 7 by rejecting the allegation and further says all the allegations were raised by the Defendant’s wife to cover up for an extramarital affair she had with her ex-boyfriend.

7.	Defendant also says he is employed with Pacific Development Contractors and would lose his job if he was incarcerated and also wants to support his children with their school fees.

8.	Defendant says if he was released bail he would reside at the home of one of his guarantors at Taikone village, Moresby South electorate NCD.

9.	More importantly Defendant says he won’t interfere with the victim and Compliant/since they are no longer living with him but they left.
 
10. Defendant at paragraph 12 says he would comply with bail conditions.
 
a)    Not interfering with nay State witness,
b)    Not to leave NCD without leave of court
c)    To anted to court at all time
d)    Will report to the court registrar every money
 
PROSECUTION SUBMISSION
 
10.	Prosecutor strongly objects to the bail application that Defendant may interfere with state witnesses including the victim and her mother. Prosecution further objects that the victim and her mother are in Port Moresby and there is likely Defendant may interfere with them. Lastly, the Prosecutor argues Defendant has been calling his relatives to inform the victim and her mother to withdraw the allegation against him and on this basis the Prosecutor asked the court not to grant the application for bail sought by the Defendant.
 
CONSIDERATION 
 
11.	 I am qualified to hear this bail application since the subject offences against the Defendant are not categorized under Section 4(1)(b) of the Bail Act, as offenses that I don’t have jurisdiction over.

12.	I have noted that in February 2021 an application for Bail was filed but her worship Tracy Ganaii (as she then was) on 4th March 2021 refused the bail application on the grounds that Defendant may or would interfere with state witness.

13.	However, Defendant has this time submitted through his new bail application that circumstances have changed. Defendant submits the Complainant is no longer living in NCD and says if he was allowed bail it would be impossible for him to interfere with State witness.
 
ISSUE
 
14.	The issue is; do I have jurisdiction to grant another bail after the previous bail was refused by the same court?
 
Ruling
 
15.	The previous bail was refused because the court’s view at that time was that Defendant may interfere with possible state witnesses including the victim. The process and practice for bail is once when a police bail is refused for reasons under Section 4 of the Bail Act then only the National court may hear bail under Section 13(1) of the Bail Act and decide whether to refuse or grant Bail provided the reasons for refusal by the District Court. I recite the Act below:
 
“13. Further application may be made after refusal.
 
(1) Where a person is refused bail by a Magistrate he is entitled to apply for bail, immediately if he so desires, to a Judge of the National Court.”
 
16.	However, the committal court may hear bail if it does not fall under the matters described as matters in specific cases under Section 4 of the Bail Act. Once when the committal court sits to decide on a fresh bail application, the hearing is only once. If bail is granted then that is it, if however, refused for reasons then the same court cannot hear another bail application, it is an abuse of process. The next avenue could be the National court providing the reason for refusal at the committal court. There may be some National and Supreme court judgments about rehearing of Bail at the District Court after previous bail is refused. However, the tolerable weight and enforcement of these judgements may supersede only in the absence of written laws. Here, I have jurisdiction not to re-hear bail after the previous bail is refused by the same court.

17.	Nevertheless, if a Defendant is rearrested on a bench warrant for not coming to court or for breaching bail conditions after being granted bail by the committal court then the same court may rehear and determine bail on whether to revoke or reinstate. If bail was revoked, then the court may ask the Defendant to file a new bail in the same court or whatever case it may be depending on the court.

18.	In the current case involving Defendant Samuel Dire, the fresh bail application was already refused and now Defendant is taking a “second bite of the cherry” (filing the same application the second time) which is absolutely an abuse of process. Despite the change of circumstance, the same court cannot hear bail applications twice unless a person is rearrested on bench warrant.

19.	Moreover, the Application for bail does not favor the interest of justice under Section 42(6) of the Constitution given that it was an allegation involving the Defendant’s own blood and flesh where the Defendant among other allegations had abused his trust as a father and provider to his child who is the victim.
 
CONCLUSION
 
20.	Consistent with Section 13 of the Bai Act, I do not have the jurisdiction to re-hear another bail application and this is despite change of circumstance pertaining to Defendant’s conditions prior and at the time of the first bail application and any change after the previous bail is refused. The grant of the second bail application would be seen as an abuse of process and not in line with the conventional progression under the legal desires of the Bail Act.
 
ORDERS
 
1.	Application for bail filed on 4th November 2021 by the Defendant is an abuse of process.
2.	Bail is refused.
3.	Defendant be remanded/Warrant issued.
4.	Matter adjourned to the 16th December 2021 at 9.30am for ruling on Committal.

[1]       Section 229A of Part IV Inserted by No. 27 of 2002, s. 1.
[2]                Section 229E of Part IV Inserted by No. 27 of 2002, s. 1.
[3]                Section 229D of Part IV Inserted by No. 27 of 2002, s. 1.
[4]                Section 223 Amended by No. 27 of 2002, s. 1.
[5]          Section 4 repealed and replaced by the Bail (Amendment) Act 1993 (No. 11 of 1993).