N10283

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 135 OF 2023

BETWEEN:
AKO TOUA
- Applicant-

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Respondent-

Waigani: Tamade AJ
2023: 28th April, 1st May

BAIL – second application for bail in the National Court – change of circumstances – offence of abduction, rape and deprivation of liberty – Criminal Code – Sections 350 (1)(i), 347(1) and 355(b) – Bail Act – Section 9 considerations exist – tendency to interfere with State witnesses – narcotic drug – serious charge – bail refused

Cases Cited

Fred Keating v The State [1983] PNGLR 133
Theo Yasause v The State [2011] PGSC 15; SC1112
Nombri v Kadai [2014] PGSC 75; SC1569
Re Thomas Markus [1999] PGNC 82; N1931
Naika Viri v The State (2023) N10320
Kum v The State (2017) N7002

Legislation

Bail Act
Constitution of the Independent State of Papua New Guinea

Counsel	

Mr Frederick Lunge & Mrs Lanna Assaigo Kami, for the Applicant 
Ms Susan Patatie, for the State

1st May, 2023

1.	TAMADE AJ: The Applicant Ako Toua is applying for bail for the second time after the National Court through Justice Theresa Berrigan had refused him bail on 3 March 2023. A copy of Her Honour’s decision in proceedings BA 85 of 2023 is attached to the Affidavit of Mr Frederick Lunge filed on 25 April 2023.

2.	The Applicant is charged with abduction pursuant to section 350(1)(a)(i), rape pursuant to section 347(1) and depravation of liberty pursuant to section 355(b) of the Criminal Code.

3.	The facts upon which the State relies on in support of the charges against the Applicant is found in the Summary of Facts and previously delved into by Justice Berrigan. On 14 February 2023, it is alleged that the Applicant in the company of others arrived where the complainant and one other were located and threatened and assaulted the Complainant and another. It is alleged that the Complainant was taken to the Applicant’s house into the master bedroom and offered methamphetamine to smoke. The Applicant and his partner by the name of Vanessa Ako Gami sexually touched and violated the Complainant. The Complainant was kept against her will for five days before being rescued by police who apprehended the Applicant, his partner Vanessa Ako Gami and others. There were weapons being an MP 5 rifle and smoking paraphernalia were also confiscated at the scene. 

4.	In Justice Berrigan’s decision, she had considered the Applicant’s right to bail under section 42(6) of the Constitution and the considerations under section 9(1) of the Bail Act. The State had submitted the presence of considerations under section 9(1) of the Bail Act, that the charges against the Applicant concern threat of violence, possession of a firearm and alleged use of a narcotic drug, all under section 9(1)( c)(i)(ii) and (iii) and 9(1)(i) of the Bail Act. Her Honour referred to the case of Fred Keating v The State where the Court stated that where there is a presence of considerations under section 9(1) of the Bail Act, the Court should refuse bail unless the Applicant shows that his continued detention is unjustified.

5.	Her Honour had considered the Applicant’s submissions as to his innocence as to the charges and had quoted the case of Theo Yasause v The State where the Court said “though the reasons advanced by the applicant are relevant considerations, none of them, either considered alone or in conjunction with each other, amounted to exceptional circumstances that make his continued detention unjustified.” Her Honour also considered the medical reasons advanced by the Applicant that he was diagnosed with Type 2 Diabetes and high cholesterol in October of 2021 and is being treated for those medical conditions and found that those conditions were not life threatening. Her Honour went further to find that there were very serious allegations concerning the use of firearms, abduction and the deprivation of the Complainant’s liberty in which she was forced into consuming methamphetamine over extended period of days and was raped on two occasions. Her Honour found that the Applicant had failed to satisfy the Court that his continued detention was unjustified and therefore refused to grant bail.

6.	The Applicant is applying for bail again to the same Court stating that there is a change of circumstance. Mr Lunge for the Applicant has submitted that the change of circumstance is in regard to the Applicant’s medical condition that there was a new medical report. Mr Lunge also submits that the Applicant’s Co-Accused have been granted bail and therefore his client should be granted bail.

7.	Pursuant to section 16 of the Bail Act, the National Court through Justice Berrigan has given a written decision of refusal of the bail applied for by this Applicant and I have read that decision. 

8.	I have read the Affidavit of Dr Kapua Kapua. Dr Kapua first assessed and diagnosed the Applicant in 2021 in which his report was used in his first bail application. Dr Kapua has again assessed the Applicant’s medical condition and states that the Applicant needs constant and regular medical observation to avoid any regress, ill health or fatality of his condition. I am of the view that the Applicant’s medical condition is not a life-threatening condition, and he is able to manage through medication whilst in custody. I am of the view that there is no serious change in medical condition as submitted by Mr Lunge. Of course, a person in custody is restricted from his movement and can not have a walk in the park so to speak but those are the restrictions that come with being held in custody.

9.	In Nombri v Kadai, the Supreme Court said that:

“Where lack of medical services at the jail is relied upon, the applicant must provide evidence of lack of medical facilities at the place of detention provided by the jail authorities in conjunction with health services offered by health authorities outside the jail.”

10.	 The Applicant has not provided any evidence of lack of medical facility specific to his medical need. Where his medical need is dependent on medication and diet, that can be managed in custody. As to the Applicants reasons that his Co-Accused have been granted bail and therefore, he should be granted bail, I find that, that is not a consideration in section 9(1) of the Bail Act. The Court in Re Thomas Markus said these:

“At the hearing, I invited the applicant’s counsel Mr Siminji to cite to me any authority for the proposition he advanced, that is that the granting of bail to the applicant’s co-accused by another judge of the Supreme Court since the earlier refusal of bail by still another judge of the National Court is a change in relevant circumstance.  He was unable to cite any.  Mr M. Peter who appeared for the State also did not cite any authority.  In my view, it is not.  Bail is a matter that affects the liberty of an individual “person” and not persons in groups.  Although several persons may be charged jointly or severally with the same charge in relation to a particular crime, the nature and extent of the participation of each co-offender in the crime is always different as are their individual personal circumstance.  Therefore, bail is always considered on an individual basis.”

11.	 I adopt those views that bail is considered on an individual basis and in this case, the Applicant was already denied bail, if there is a change of circumstance after the National Court had denied bail, he should show to the Court those changes in circumstances. He has not done that so far. The Court in Re Thomas Marcus also said these:

“In considering whether there has been a change in circumstances, the change or changes in circumstances must be relevant.  In determining what changes are relevant circumstances, it is necessary to re-visit the judge’s earlier reasons for refusing bail with reference to S.9(1) of the Bail Act.  Any circumstances which did not form part of the reasons pertaining to the grounds upon which bail was refused under the criteria in S.9(1) is not a relevant circumstance for which the Court should re-consider its earlier decision to refuse bail.  Indeed it would amount to abuse of process of the Court for a person refused bail by a judge of the National Court to re-apply for bail to the same judge or different judge of the National Court simply for the purpose of taking another bite at the same application before another judge, without providing evidence of any change in relevant circumstances or with evidence of change in irrelevant circumstances.”

12.	I am of the view that the Applicant has done exactly that, he has attempted to take another bite at the cherry (or the same application for bail) so to speak to re-ventilate his arguments again before the same Court without showing any change of circumstance, a change of circumstance that is relevant to grounds in which the initial Court had denied him bail. The medical reasons advanced by the Applicant through evidence are not a serious change of his medical condition, they are complaints about the restricted conditions in jail in managing his ailments which the State has submitted that it is not life threatening and in which I uphold those submissions by the State.

13.	The Applicant’s complaints about his Co-Accused being granted bail are not reasons for considerations for the Applicant’s bail. His case is considered individually and therefore I refuse those submissions by Mr Lunge. I also uphold the submissions by the State that there still exists the consideration under section 9(1) of the Bail Act that the allegations against the Applicant concern a serious assault, a threat of violence to another person, the presence of a firearm or offensive weapon and the use or possession of a narcotic drug under the Bail Act. I refer to my decision in Naika Viri v The State (2023) N10320 that in my opinion, a narcotic drug refers to the drug methamphetamine which is a highly lethal and illicit drug destroying people and whole communities.

14.	In the Affidavit of Constable John Pii who is the investigating Officer in the Applicant’s case, he opposed the Applicant’s bail and states that the Applicant has been charged with very serious offences. He also states that the Applicant and the witness know each other, and he believes there is a strong possibility that the Applicant will interfere with State witnesses if out on bail. He also states that the Applicant should remain in jail for his own safety as well until the substantive hearing. This therefore raises the existence of two other consideration for refusal of bail under section 9(1)( e) and (f) of the Bail Act. I accept these considerations from the investigating officer that the Applicant is a person of influence. I formed this view after reading the decision of Justice Berrigan refusing bail the first time, the Applicant is a director of Water PNG and the Deputy Chairman of the Water PNG board. There is a high likelihood of interfering with State witnesses in my opinion. 

15.	I am reminded by the case of Kum v The State, that bail is never about punishment against the Applicant. The Applicant’s guilt or otherwise are matters for the substantive Court. The facts and allegations against the Applicant if they raise the considerations under section 9(1) of the Bail Act are persuasive and guide the Court in its exercise of discretion in granting bail. There therefore exists grounds 9(1) (c)(i)(ii)and (iii), (e), (f) and (i)  of the Bail Act.

16.	The Court, therefore, makes the following orders:

i)	As the Applicant has not shown any change of circumstance since the National Court denied him bail on 3 March 2023, the Applicant’s bail application is refused as being an abuse of the Court’s process and that there still eaxists the considerations under section 9(1) (c)(i)(ii)and (iii), (e), (f) and (i) of the Bail Act which bail shall also be refused on these considerations.

Ninerah Lawyers: Lawyers for the Applicant
 Office of the Public Prosecutor: Lawyers for the State