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Eric v State [2012] PGNC 195; N4755 (19 June 2012)

N4755

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO.147 OF 2012

SAFINKO ERIC
Applicant

v

STATE
Respondent

Goroka: Ipang, AJ
2012: 15 & 19 June

PRACTICE & PROCEDURE – Bail Application – Constitution – s. 42 (6) and Bail Act – s. 6 – Applicant/Accused charged with 2 counts of the offence of Rape pursuant to s. 347 (1) of the Criminal Code Act – Applicant committed to the National Court on the 16th of January, 2012 and seeks bail to pursue his education

Cases cited

Re Herman Kagl Diawa [1980] PNGLR 148

Counsel

Mr N. Nagle, for the applicant
Mr T. Ai, for the respondent

19 June, 2012

1. IPANG, AJ: The applicant applies to be admitted to bail. He says he has been in custody since the 22 of October 2011. He has been remanded in custody for the alleged offence of two (2) counts of rape contrary to s. 347 (1) of the Criminal Code Act.
   
2. The applicant has filed his affidavit sworn on the 21st March, 2012 and filed on the 26th March 2012 in support of his bail application. He relies on the following grounds:
   
   • (i) He says he has missed out on his education. In paragraph 9 of his affidavit, he deposed that he was upgrading his maths and English subjects. There were two (2) scheduled exams but he says he has missed out. The Madang Teachers College had accepted his enrollment but he says this is subject to his current charge.
     
3. The above is the applicant's main reason for seeking to be admitted to bail. He says he has two (2) guarantors and these are:
   
   • (i) Otto Aiwa – is a Church Elder with the Seventh Day Adventist Church (SDA). This elder is the applicant's village neighbor and pledged K300 cash surety;
     
   • (ii) Lui Lopi is the Head Teacher at a Primary School. He comes from the same village as the applicant.
     
4. The applicant submitted that s.9 (1)(c) bail consideration should stop the court from exercising its discretion to grant him bail. He submits that his rape case is not a serious case for rape. He also said if allowed bail, he will reside with his grandfather.
   
5. The Respondent through Counsel Mr T. Ai objected the applicant's bid to be admitted to bail. Counsel submitted that under s. 9 (1) (c) of the Bail Act,(serious assault), he says the crime of rape is a serious charge. Mr Ai submitted that the grounds raised for bail are missed opportunities and are "way passed" for the exams, he submitted that Correction Institution Service could arrange that.
   

Law

6. In Re Herman Kagl Diawa [1980] PNGLR 148, we are reminded that bail should be readily available to a person arrested and charged unless otherwise. In his very own words, Kapi J (as he then was) said and I quote:
   

"The right to bail is a constitutional right (s.42 (6) and must be given readily unless the interests of justice require otherwise. The Constitution puts the onus on those who oppose bail to show why bail should not be granted. Section 9 (1) sets out the considerations upon which the court may refuse bail."

Bail Act, Chapter No. 340

7. The section 9 of the Bail Act, Chapter No. 340 sets down certain criteria upon which Bail Authority will take into account when determining the question on whether to refuse or grant bail to the applicants. There are:
   

"9. Bail not be refused except on certain grounds

(i) Where a bail authority is considering the question of granting or refusing bail under this part, it will not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:

(a) that the person in custody is unlikely to appear at his trial if granted bail; or

(b) that the offence with which the person has been charged was committed whilst the person was on bail; or

(c) that the alleged act or any of the alleged acts continuity of the offence in respect of which the person is in custody consists or consist of-

• (i) a serious assault; or
• (ii) a threat of violence to another person; or
  
• (iii) having or possessing a firearm, imitation firearm, or other offensive weapon or explosive; or
  

(d) that the person is likely to commit on indictable offence if he is not in custody; or

(e) it is necessary for the person's own protection for him to be in custody; or

(f) that the person is likely to interfere with the witnesses or the person who institute the proceedings; or

(g) .................................................
(h) ..................................................
(i) ...................................................
(j) ..................................................."

9. For the purpose of this bail application, State had invoked s. 9 (1) (c) (1)...... a serious assault when opposing the bail application. The information and brief facts annexed and marked with letters "A" and "B" contain the charge upon which the applicant was charged with and these are two (2) charges of Rape under section 347 (1) of the Criminal Code Act. Part of the allegation contained in the statement of facts (Annexure B) reads and I quote:
   

"In the night (26th October, 2011) he forced her to remove her clothes and he had sex with her. Then after some minutes, he forced the victim to lie on top of her and he had sex with her. She did that repeatedly for three times. Towards the morning of Thursday, 27th October, 2011 between 2.00 am to 5.00 am, he then had sex with her and after some minutes later, he had sex with her in her anus."

10. There is evidence of serious assaults on the nights of 26th October, 2011 and early hours of 27th October, 2012 in that the victim was alleged to have been raped (2 counts of rape). The offence of rape constituted prior battery and assault. So there is presence of ground 9 (1) (c) (i) of the Bail Act, Chapter No. 340.
    

Pursue Studies as reason for Bail

11. In paragraph 9, 10, 11 & 12 of the applicant's affidavit (supra) he raised issue with the need for him to continue on furthering his education. I agree that education is an important tool in one's life. We cannot deny this fact of life. In paragraph 9, I confirm the applicant is a student enrolled at PNG University of Technology – Department of Open and Distance Learning at Goroka Secondary School in 2011 at the time of his arrest and detention. In paragraph 10 of his affidavit, he confirms missing out on exams. I consider that his remand at Bihute will not adversely affect him. He can still study and do his exam whist being a remandee. All he needs to do is make necessary arrangements with Corrective Institution Service Officers so they could facilitate for him to do his examinations.
    
12. In paragraph 11 of his affidavit, he deposed of being accepted for enrollment at Madang Teachers College early this year, 2012. That event has now gone passed the applicant at the time of making this bail application. This event cannot be paused or reserved. This ground for bail is a little too late and cannot be sustained. Supposing if in future if the applicant is accepted and prior to the end of registration at whatever College, he is at liberty to file another bail application.
    
13. For the foregoing reasons, I refuse the applicant's application for bail.
    

______________________________________

Paraka Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent