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Siwi v State [2023] PGNC 141; N10250 (11 May 2023)

N10250

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
BA (APP) NO. 180 OF 2023

OSCAR SIWI
Applicant

V

THE STATE
Respondent

Ialibu: Miviri J
2023 : 11^th May

CRIMINAL LAW – PRACTICE & PROCEDURE – Bail Application Section 42 (6) Constitution – Section 4 & 6 Bail Act –Section 229A (1) CCA – S9 (1) (c) (i) (ii) (iii) & (e) Bail Act – Objection to Bail – Teacher – Offence Alleged at School Against Student – No Guarantee of Like Conduct School – Guarantors No Guarantee – Bail Refused – Remanded.

Facts:

Accused is charged with sexual penetration of his pupil in the school pursuant to section 229A (1) Code.

Held:
Application refused remanded CIS.
Guarantors inadequate.
Treat of Violence.
Use of violence.
Teacher.
Victim Student.
No guarantee Interference.

Cases Cited.
Lester v The State [2001] PGNC 148; N2044
State v Paul [1986] PGNC 46; [1986] PNGLR 97; N537

Re—Fred Keating [1988] PNGLR 133
Counsel:

P. Tengdui, for the State
Joshua John, for Applicant

RULING

11^th May, 2023

1. MIVIRI J: This is the ruling on an application for bail by the applicant charged with sexual penetration of a student in the school that he teaches as a teacher.
   
2. The application is made in reliance upon section 42 (6) of the Constitution which allows for a person arrested or detained for an offence as is the case here as being entitled to bail at all times. That is from arrest, detention to acquittal or conviction as the case maybe. Unless the interest of Justice otherwise requires. The applicant is entitled to bail as it is an offence not restricted by that section. His application is reinforced by section 4 of the Bail Act which empowers only the National Court to consider and grant bail in cases of offences that it sets out therein. For all intent and purposes section 6 of the Act, determines that he can make the application at any time. The application so made as here is subject to section 9 of the Act as to the grant or refusal of Bail, section 6 (3) of the Act.
   
3. So, for the application of the applicant to succeed the Court must be satisfied on reasonable grounds as to one or more of the considerations set out by section 9 of the Act. Which says:
   

BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

(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) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;
(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody;
(j) that the alleged offence is one of breach of parole.

(2) In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.

(3) For the purposes of Subsection (1)(i), “narcotic drug” has the meaning given to it in the Customs Act 1951.”

4. This is the law that the applicant has to satisfy. And to do so the applicant relies on his own affidavit filed as of the 09^th May 2023. He deposes that he is 32 years old employed as the chemistry Geology and Biology Teacher at Mendi Day Secondary School. He also assists in the teaching of Physics. The allegation made against him the subject of the charge for his incarceration in the information Annexure “A “and “B” the statement of facts pertaining to the charge.
   
5. The former reads, that it is laid as of the 04^th May 2023 that on the 22^nd day of April 2023 at Unjamap, Mendi Secondary School Area, Oscar Siwi, 32 years old of Koglai Kundiawa Chimbu Province did engage in an act of sexual penetration with a minor under the age of 17 years old, namely Jacquina Jack then 17 years old by inserting his penis into her vagina and at that time there was an existing relationship of trust, authority and dependency in that Mr Oscar Siwi was her teacher. There by contravening section 229A (1) (3) of the Criminal Code Act.
   
6. And the latter is as follows; On the 22^nd April 2023 around 7.30pm to 08.00pm the defendant Oscar Sivi was at Unjamap, Mendi Secondary School area of Imbongu Electorate in Southern Highlands Province. He is a teacher teaching at the Mendi Secondary School and on that date and time, he called the victim Jacquina Jack a student at the said school on her cell phone telling her to come over to a trade store located at Unjamap village near the school area so he would buy her a soft drink.
   
7. Without suspecting anything, she went to the location requested by the defendant, however at that location the victim did not sight him. So, she stayed there for about 4 to 5 minutes and later left the area. She left the area and walked down towards the school area towards a junction which separates the road leading up to Unjamap village where the store is located, and the other into the residential area of all the Staff teaching at Mendi Secondary School and met the defendant.
   
8. As soon as the victim met up with the defendant, the light (PNG Power) went off leaving them in complete darkness, seeing that the victim left the defendant behind and tried to go home, but from behind the defendant came and put one hand on her breast and the other on her mouth and started to drag her back to his house, victim tried to struggle but couldn’t because the defendant was stronger than her. Defendant Mr Siwi dragged her all the way and into his house and then pushed her inside.
   
9. Inside the house the victim asked the defendant what was he trying to do but the defendant said nothing in respond and started to remove the victims’ trousers and at the same time removing his trousers also and then pushed his penis in to the victims mouth. Victim refused to do that and the defendant removed his own trousers completely off and then put a condom and spread her legs apart and sexually penetrated her once. After releasing his sperm, he got up dressed himself and send victim away. Victim then went to her house, told her parents and they took her to Mendi General Hospital for medical check-up.
   
10. On the 24^th of April Defendant was arrested by Police and was detained in the Cells at Mendi Police Station. Defendant was later cautioned given his Constitutional rights under section 42 (2) of the Constitution of Papua New Guinea, charged with one count of sexual penetration pursuant to section 229A (1) (3) of the Criminal Code Act.
    
11. This is clear evidence falling under section 9 (1) (c) (i) (ii) of the Bail Act upon which bail can be refused here. And there is no evidence filed by the applicant that refutes what is set out by section 9 (1) (c) (i) (ii) of the Bail Act, and the evidence supporting here. He may be a teacher in that School and for all intent and purposes, the students will miss out in school whilst he is in custody. But there is really no guarantee for the safety of the alleged victim who is a pupil also at the subject school. He teaches Chemistry, Biology, Geology, and physics so if the victim is in those classes that he teaches, there is no guarantee that he will not interfere with her in the evidence that she will be giving to Court on the allegation. There is really no guarantee filed by the material here that he will not interfere with her. And that he will come to associate with her principal witness to this allegation. Her safety is not guaranteed because he remains a teacher there where she is also at the School, Mendi Secondary School.
    
12. In this regard therefore the proposed guarantors, firstly, Minister Iso Kila, Pagahill Ward 3 Seventh Day Adventist Church really will have no bearing guaranting her safety in the school. She being the primary and principal witness to the allegation. The same observation is made in respect to the second proposed guarantor, Oliver Kerry also of that residence but a councillor. There is nothing in his affidavit that addresses what is raised above. It is the same for the first proposed guarantors.
    
13. This is an offence where there is a threat of violence and the use violence to attain sexual penetration of the victim. She is said to have immediately after the offence gone to her parents and reported the matter. Which eventually has ended up with the police. It is rightly there not in the school. Children in the schools must be protected from abuse and like conduct alleged here from teachers and any others. It is important that this offence, which involves the threat of use of violence and the use of violence is not granted without due consideration. The letter annexure “B” written by the Student Representative Council has not authority over the process of law now instituted and proceeding against the defendant applicant. Further that letter does not guarantee that She the Victim will be safe, not interfered in the School where he is a Teacher in Chemistry, Biology, Geology, and physics. If she is in his class in any of the subject, there is really no guarantee as to her safety and the evidence she poses which would be in the domain discretion of the Applicant as Teacher there.
    
14. In my view this letter does not address and will not guarantee release in that way it is set out. The Character reference by Chris Kaia PNGTA Representative does not contribute any substance to the above matter. He is a self-serving reference not qualified to address what is set out above. Hence his reference has no bearing to swear the application prayed.
    
15. In all the circumstances of the case set out above considered in the light of State v Paul [1986] PGNC 46; [1986] PNGLR 97; N537 (7 April 1986) where bail was refused because on the basis of section 9 (1) (c) (i) (ii) (iii) of the Bail Act. Here it is section 9 (1) (c) (i) (ii) of the Bail Act that is relied. There is no basis substantially demonstrated to grant bail. It is in the interest of Justice that the Application is refused because of the significance of the offence. I am not bound by the technical rules of evidence in determining this application, section 9 (2) of the Bail Act. It may act on “such information as is available to it.” And the information available does not give the aggregate that bail be allowed as applied.
    
16. The aggregate is that “before the discretion to refuse bail arises the court has to be satisfied that there are substantial grounds for believing that one or more of the matter described in section 9 (1) (a) to (g) are present It is the existence of substantial grounds for the belief not the belief itself which is the crucial factor see Rv. Slough Justices; Ex Parte Duncan and another [1982] 75 Cr. App. R384,” In Re—Fred Keating [1988] PNGLR 133.
    
17. In my view the applicant is yet to convince that his application has the basis to be granted. And the interests of society also to deal with offenders once before the courts and therefore stricter and higher terms maybe imposed, Lester v The State [2001] PGNC 148; N2044 (22 January 2001).
    
18. Here it is a very serious and grave offence by the facts set out above. A serious breach of trust between the Teacher and the Student. It is important that evidence now accessible if the teacher is granted bail and goes back to that school where the victim girl is also in Mendi Secondary School, Section 9 (1) (f) of the Bail Act. He is bound to interfere with her as a teacher there. She being a pupil there. It is not conducive by the material relied here to release him on Bail. His application therefore fails.
    
19. Application is refused, he remains remanded forthwith.
    

Ordered accordingly.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Defendant