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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR (AP) 675 OF 2020
In the Matter of a Bail Application pursuant to Sections 4, 6 and 9 of
the Bail Act, Chapter 340 and Section 42(6) of the Constitution
ISAAC YAKI
V
THE STATE
Waigani: Tamate, J
2020: 20th, 27th October
PRACTICE AND PROCEDURE - Application for bail pursuant to Section 42(6) of Constitution and Sections 4 & 6 of the Bail Act, Ch. 340 – whether bail is readily available as of right – each case to be determined on its own facts and circumstance.
The applicant is allegedly charged for two counts of rape pursuant to section 347(1) of the Criminal Code and 7 counts of sexual penetration. He was alleged to have committed these offences when he and few (3) victims engaged in a Tiktok video challenge which involved the respective victims to try and unzip applicant’s trousers zipper and when he asked, what she is trying to do she would respond and say ‘I want to eat the belt. As a result of the video going viral on social media, the applicant was arrested and beaten up by Police and civilians and relatives of the victims.
Held
(1) Bail is a Constitutional right and is readily available to a person in custody
or charged for a criminal offence other than wilful murder or treason.
(2) Applicant is allowed bail on humanitarian grounds with conditions.
Cases Cited
Fred Keating v The State [1983] PNGLR 133
Counsel
Mr. Emmanuel Isaac, for Applicant
Ms. Tapas Kametan, for State
DECISION ON BAIL
27th October, 2020
1. TAMATE, J: This is an urgent application for bail brought pursuant to sections 4 and 6 of the Bail Act. The applicant is making this application on humanitarian and health grounds as a result of been severely beaten up and abused by Police officers and members of the public including relatives of the alleged victims.
Charge
2. Applicant is allegedly charged for two counts of aggravated rape (under Section 347(1) of the Criminal Code as amended and 7 counts of sexual penetration pursuant to section 347 of the Criminal Code as amended.
3. These charges are provided in the charge sheets instead of proper information on the respective charges. The Statement of facts
has given the brief allegations as follows:
‘That on the 2nd and 9th of October, 2020 the accused Alex Buka from Api village in South Wahgi, Jiwaka Province was arrested for two sexual offences. The accused pretended to be a white man on Facebook and made friends with the young girls and has involved with two separate female victims on two separate dates and did aggravated rape and sexually penetrated both by dating them. The accused was arrested and charged for these offence and detained at Boroko cells awaiting court’
Issue(s)
4. Whether applicant can be granted bail in the interest of justice?
Law
5. The Law on Bail is provided for under the Constitution and the Bail Act, Chapter 340.
6. Section 42 (6) of the Constitution provides:
“A person arrested or detained for an offence (other than treason or wilful 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”
7. Section 3 of the Bail Act provides:
“OBJECT OF PART II.
The object of this Part is to give effect to Section 42(6) (liberty of the person) of the Constitution which provides that a person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention and to acquittal or conviction unless the interests of justice otherwise require.”
8. Section 6 of the Bail Act provides:
“(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.”
BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.
9. Section 9 of the Bail Act provides:
(1) Where a bail authority is considering the question of granting or refusing bail under this Part, it shall 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;
(b) that the offence with which the person has been charged was committed whilst the person was on bail;
(c) that the alleged act or any of the alleged acts constituting 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, other offensive weapon or explosive;
(d) that the person is likely to commit an indictable offence if he is not in custody;
(e) it is necessary for the person’s own protection for him to be in custody;
(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings;
(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;
(h) ....”
Evidence in support of Application
10. The applicant has relied on his affidavit and affidavits of his two proposed guarantors who have supported him in his application.
11. The Applicant is 22 years old and comes from Unjamap village, Mendi in the Southern Highlands Province. He is married and has a 2 year old child. He is self- employed and lives at Talapia Street, Morata One in Port Moresby, NCD.
GROUNDS FOR BAIL
12. The applicant has relied on the following grounds why bail should be granted:
(a) He urgently needs medical attention and treatment for the severe injuries he had sustained at the hands of Police and civilians brutal attack on him during his arrest and detention at Badili and Boroko Police Stations. He has stated that the kicks and assaults to his body and his groin area including his penis and testicles has resulting in his private parts been swollen beyond expectation and recognition. He needs urgent treatment as the injuries may be life threatening.
(b) He is concern about his wife and child’s safety as the people in his neighborhood have threatened them as a result of the incident which they do not understand. Furthermore, he is the only bread winner and is concerned about his family’s welfare.
(c) He says he is innocent of the charges as the victims consented to the Tiktok videos and the videos and the photographs speak for themselves. They each agreed in making these videos with him and there was never any force or threats issued against them for sex.
Evidence in Support of Application
13. The applicant has deposed in his affidavit that he was called by Franklyn (one of the girls in the Tiktok video challenge to meet her at Waigani. Unknown to him there were two Police officers and 4 civilians waiting in a blue Toyota Landcruizer (10 seater). As soon as he arrived the Police and the others assaulted the Applicant and threw him into the vehicle and started assaulting and punching him as they were taking him to Badili Police Station.
14. When they got to Badili Police Station there was another group of Police and civilians and relatives of the alleged victims who continued assaulting, punching and kicking him indiscriminately and even beating him with iron and belt buckles. He was also forced to chew the belt which he did and swallowed what he chewed. He said the beatings lasted for about 4 hours from 10.00 am to about 6.00 pm on 14th of October, 2020.
15. He was kicked on his groin area including his penis and testicles repeatedly resulting in severe pain and subsequent swelling to his private parts.
16. As he was been assaulted no Police officer came to his rescue or assistance. The Police officers and public and relatives were allowed to continue assaulting the applicant inside the cells and outside in the view of the Public. Members of the Public and relatives were allowed to take videos and photographs of the assaults and his naked body after he was stripped off his clothes at Badili Police Station.
17. After been severely beaten up he was thrown into the cells while bleeding from his wounds. He was denied any medical treatment during the last 10 days since his arrest and his injuries have become very serious especially the pains and swelling in his groin area and the private parts.
18. The videos have gone viral on the social media on Facebook, Instagram and YouTube. He has attached photographs of the victims involved in the alleged Tiktok videos and also tendered a video of his beatings at Badili Police Station.
19. The applicant deposed that he had been held in custody without any charges for 6 days. He was stripped naked and had to isolate himself from the other cellmates out of shame and had to spend the night in the toilet block which was not unfit and unpleasant for a human being to sleep in.
20. He has stated that his dignity was taken from him by the assailants and this has caused him embarrassment at the same time.
SUBMISSIONS
21. The Applicant’s lawyer has submitted that he has written to the Internal Investigation Unit with RPNGC raising a complaint into the abuse and a case of Police brutality that needed to be investigated.
22. He also requested and pleaded with the Arresting Officer and other Police officers to take the Applicant to the hospital for medical treatment. His pleas were totally ignored thus this application for bail so that the applicant can receive or be given proper medical attention and treatment.
23. Mr. Isaac for the applicant submitted that the applicant needed to be allowed on bail so that he can also prepare his civil suit against those involved in his unlawful beatings. There is no way he is going to abscond bail because he has a case that he needs to file and pursue against the Police and others implicated. Mr. Isaac submitted that his client had been abused and his rights had been breached which he needs to pursue.
Response by State
24. Ms. Kametan for the State has opposed the application. She submitted that the applicant has not been truthful about his name when questioned by Police therefore there is a strong likelihood that he may abscond bail.
25. Furthermore, that the health condition or ground is not a good reason for bail to be granted.
26. She has also objected on one of the guarantors Ms. Maureen Reu on grounds of conflict of interest as a result of her employment with the Royal Papua New Guinea Constabulary.
27. The law on bail is clear in that a person charged with a criminal offence (other than treason or wilful murder) is entitled to bail at all times. Bail is readily available to him unless the interest of justice otherwise requires.
28. Section 9 of the Bail Act clearly states that bail shall not be refused unless one or any of the considerations exist. However, in the case of Fred Keating v The State (supra) the Court held that even if one or any of the considerations under section 9 exists the Court still has discretion to grant bail.
Exercise of Discretion
29. How should this Court exercise its discretion when considering the circumstances of this case?
30. According to the facts and circumstances of this case the applicant has been severely beaten up upon his arrest and detention. There is overwhelming evidence that the Police and members of the Public have been allowed to indiscriminately abuse and beat up the applicant and stripped him naked and even forced him to chew his belt. There is no dispute that videos and photographs have been circulated on social media showing the beatings of the applicant who was already arrested and in the custody of the Police.
31. A Police Station or a CS facility is a place where a suspect is remanded and is supposed to provide a safe and secure place for a suspect’s protection from any retaliation from relatives or persons having an interest in a case. When he is arrested and in custody, he has his Constitutional rights that need to be observed and accorded to him by the Police officers or CS officers who are in charge of a suspect’s detention.
32. An accused person in custody has the following rights under the Constitution:
(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.
(1). Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.
(2)...
(3)...
(4. A person charged with an offence–
(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; an
(17). All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”
Findings of fact
33. From the evidence provided about the beatings and the abuse on the applicant, I find that the Police officers and relatives of the alleged victims had applied excessive force which was unnecessary and unlawful on the applicant when he was already in Police custody.
34. The Constitution protects an accused person from torture or any treatment which is inhuman, or is inconsistent with respect for the inherent dignity of the human person.
35. The videos and photographs clearly show the abuse and unlawful beatings and degrading acts inflicted on the applicant. Allowing Public into Police Stations to assault and harm an accused is in contravention of his rights. He is innocent until proven guilty by a Court of law. He will pay for his crimes when found guilty by the Court and sent to jail. No one has the right to pass sentence on him by beating him up and telling him to chew his belt because of the Tiktok videos that he and the victims had agreed to create in the first place.
36. I am satisfied that the Applicant has been severely beaten up and has sustained swelling to his private parts which needs immediate medical attention and treatment. This is not a pre-existing health condition but one that has recently been inflicted on him.
Decision on bail
37. In the interest of justice, it is only fair that he be allowed bail so to go and get medical treatment since the Police have failed to take him to hospital to get medical attention and treatment.
38. For these reasons I am inclined to grant the application.
Orders of the Court
39. In the exercise of my discretion I hereby grant the application for bail and thus make the following orders:
(1) Bail is granted to Isaac Yaki in the sum of K1000.00 in cash with the following conditions:
(a) The applicant is to report to Waigani Committal Court every Monday between 8.00 am and 4.00 pm;
(b) The applicant is not to interfere with any State witnesses whilst on bail;
(c) The applicant is to keep the peace and be of good behavior whilst on bail;
(d) Applicant is to live at his home at Talapia Street Morata No. 01 whilst on bail;
(e) He is not to leave Port Moresby without the leave of the Court;
(f) The following persons shall act as Guarantors for the applicant namely: Pastor Peter Aglum and Maureen Reu with a surety of K500.00 each.
(g) The Lawyer for the Applicant shall ensure that the guarantor Maureen Reu be replaced by another reputable guarantor within the next two weeks from today.
(h) The arresting office shall provide copies of the information for each of the charges laid against the applicant within the next 2 weeks.
(i) In light of the assaults and beatings on Applicant the members of the Police Force and the relatives of the alleged victims are restrained from causing further assaults on the applicant whilst he is on bail.
Decision on bail accordingly.
__________________________________________________________________
Emmanuel Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State
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URL: http://www.paclii.org/pg/cases/PGNC/2020/333.html