N11506

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BA NO 652 OF 2025

MATTER OF BAIL ACT CHAPTER 340

IN THE MATTER OF BAIL APPLICATION BY
JOHN JIMORY

WEWAK: MESA AJ
23, 30 SEPTEMBER, 1 OCTOBER 2025

PRACTICE AND PROCEDURE – Bail – Applicant to be released on bail pending committal – Persistent Sexual Abuse – Abuse of Trust – Serious Assault – Strong likelihood of interference with witnesses – Bail refused – Constitution, s. 42 (6) - Bail Act, ss.4, 6 and 9 (1)

Cases cited
Re Fred Keating v The State [1983] PNGLR 133
Bernard Juale v The State [1999] N1887
Mark Gunua v The State (2010) N4136
Triga Kakarabo v The State [1999] N1891
Kuku Hayara v The State (2008) N3488
The State v Beko Job Paul [1986] PNGLR 97
Steve Lester v The State (2001) N2044

Counsel
Mr. W. Kamba, for the applicant
Ms. D. Ambuk, for the respondent

RULING

1.	MESA AJ: This is an application for bail, made pursuant to Sections 4 and 6 of the Bail Act (Act) and Section 42 (6) of the Constitution.  

2.	The Applicant is charged with a count of persistent sexual abuse of the complainant, who at the time was a child aged under 16 years. The charges allege a breach of a position of trust as the Applicant is the complainant’s stepfather.  

3.	It is alleged that in the period 1 January 2023 to 31 July 2025, the Applicant persistently sexually abused the complainant. In that material time, the Applicant was the stepfather of the complainant and was in a position of trust. The complainant’s mother is the second wife of the Applicant; they all live together in the same house with the Applicant’s first wife and their children.

4.	It is alleged that the Applicant perpetrated sexual acts and acts of sexual penetration on the complainant on several occasions at different locations. These acts are alleged to include – 

•	Indecently exposing his penis to her.
•	Telling her to touch his penis while he sexually penetrated her vagina with his fingers.
•	Grabbing her and pushing his hand into her trousers and sexually penetrating her vagina with his fingers.
•	Isolating her in a room, removing her trousers and underwear then sexually penetrate her with his fingers.

5.	These events are alleged to have started when the complainant was seven (7) years old. 

6.	It is alleged that on 30 July 2025, when the Applicant again tried to sexually assault her, the complainant feigned the need to use the bathroom and ran away. She reported the assaults to her maternal uncle on 31 July 2025.  

7.	The State opposes bail, having filed its objection in Form 3 (filed 23 September 2025) of the Bail Rules 2021 (Rules).

Law on Bail

8.	Beginning with the Constitution, Section 42 (6) provides that – 

‘42. LIBERTY OF THE PERSON
...
(6) 	A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.’ 

9.	The Constitution then entitles detained persons to bail at all times, which is captured in Section 6 of the Act. Section 4 of the Act provides that the National Court is the bail authority for serious offences, amongst others, wilful murder.

10.	Section 9 of the Act provides that bail should not be refused except where one or more of the grounds it sets out in Section 9 (1) of the Act exist.

11.	However, it is settled law in our jurisdiction that even where grounds under Section 9 (1) of the Act are made out, the Court still has a discretion to grant bail. The question of the use of discretion turns on whether, in the interests of justice, there are exceptional circumstances demonstrated that do not justify an applicant’s further detention (Re: Bail Application Fred Keating v The State [1983] PNGLR 133 (Keating) and Bernard Juale v The State (1999) N1887) (Juale). 

12.	I am satisfied on the material in the Police Information and Statement of Facts before the Court, and I note that I am not bound by the technical rules of evidence (Section 9 (2) Act), that grounds for a serous assault exist, pursuant to Section 9 (1) (c) (i) of the Act.      

13.	I now consider the grounds for bail to determine if there is basis for the Court to exercise its discretion to grant bail. 

Grounds for Bail

14.	The Applicant relies on Sections 4 and 6 of the Act, as well as Section 42 (6) of the Constitution in bringing this application. 

15.	The Applicant submits that Section 9 (1) (a) (d) (e) and (f) of the Act do not apply to him.

16.	In consideration of Section 9 (1) (c) of the Act, the Applicant referred the Court to the authorities of Keating and Juale, and submitted the following grounds for the Court to exercise its discretion:  

(i)	A record of interview has not yet been conducted by the police since his detention.
(ii)	The Applicant is a reputable citizen, with no criminal record and is not a flight risk.

17.	     The Applicant also undertook to: 

(i)	Attend Court when required.
(ii)	Not commit any offence while on bail.
(iii)	Not interfere with any state witnesses related to his case.
(iv)	Comply with any conditions set by the Court.

18.	In the Applicant’s filed Form 1 (filed 9 September 2025) pursuant to the Rules, I noted the grounds he advanced for bail as being – 

(i)	The poor hygiene and overcrowding of the jail.
(ii)	He is being threatened by relatives of the complainant.
(iii)	He needs to attend to his business as a private electrician. 

19.	Further in Form 1, I noted two (2) persons had signed to be guarantors for the Applicant:

(i)	Tom Kawi, a Ward Councillor and related to the Applicant as a nephew; his residential address was not given.

(ii)	Moris Yengei, an Ambunti District Land Mediator and the father of the Applicant; his residential address was also not given. Mr Yengei based the issue of the Applicant’s SME and the welfare of his (the Applicant’s) wife and children as reasons why he supported the Applicant’s bail. 

20.	The Applicant, however, in his affidavit supporting the bail application (filed 8 September 2025), had nominated two (2) other persons to be his guarantors – 

(i)	Henry Ariro, who is presently the incumbent President of the Maprik Wora Local Level Government (LLG).

(ii)	Tom Sikali, a former policeman.

21.	As submissions were made by Mr. Kamba, Counsel for the Applicant, on the reliance of the latter two (2) persons, I will take it that these are the preferred guarantor nominees. I will return to the guarantors later below. 

22.	I understood from submissions that the Applicant intended to reside at his home in New Town, Maprik, if bail was granted.

23.	In response, Ms. Ambuk for the State opposed bail pursuant to grounds made out under Section 9 (1) (c) (i), (f) of the Act, that there was a serous assault and that there was a high likelihood of the Applicant interfering with the witnesses. However, she agreed that the Court still had a discretion to grant bail, depending on whether exceptional circumstances were provided by the Applicant.   

24.	For that matter, she took issue with the Applicant’s ground relying on the loss of business as it was purely a commercial interest, and that the applicant’s denial of the charges was an issue for trial as all accused persons carry the presumption of innocence.   

25.	After having heard Counsel, I raised the question of where the complainant was residing. This was important as in the event the Applicant was granted bail, he intended to reside at his home in New Town, Maprik; where would the complainant live? I directed the State to obtain an affidavit from the investigating officer to speak to this issue. The matter was adjourned to 30 September 2025.

26.	On returning on 30 September 2025, the State handed up a type-written statement from the investigating officer, Detective Policewoman First Constable Deborah Giwarkun, who is the Officer in Charge, Sexual Offences Squad, Maprik Police Station. The statement was signed and dated 24 September 2025 on the letterhead of the Office of Criminal Investigation Division – Maprik Police Station.

27.	Although it was not in an affidavit form as argued by Mr. Kamba, I accepted the statement on the basis that the author is the investigating officer directly involved in the matter, a fact that is not disputed. Further, and more pertinently, this Court is not bound by the technical rules of evidence to refrain from receiving the statement as material to the application.   

28.	What I found from Detective Giwarkun’s statement to be relevant to the question the Court asked was:

(i)	The complainant’s biological mother is Belinda Jimory; she is the second wife of the Applicant, and lives with the Applicant together with his first wife and children.

(ii)	The complainant lives with her uncle at Yelehine village. 

29.	In turn, Mr. Kamba handed up an affidavit deposed by Belinda Jimory (dated 30 September 2025).  Amongst others, I note the affidavit deposes that – 

(i)	Belinda Jimory still resides in the Applicant’s home at New Town, Maprik.

(ii)	The complainant is residing with her (Belinda Jimory’s) distant cousin, Ron Waso. 

30.	I am satisfied on the statement and affidavit that the complainant did not currently live at the Applicant’s house but resided elsewhere with her maternal uncle. 

Consideration of Guarantors

31.	I have taken some time here to speak of guarantors for a bail application.

32.	Pursuant to Section 19 of the Act, the Court may approve two (2) guarantors as a condition of bail. 

33.	One must appreciate the import of becoming a guarantor, and the extent of responsibility it carries. The guarantor essentially makes an agreement with the Court, with the Court’s trust, that they guarantee that the person released on bail into their supervision will comply with the Court’s bail conditions. 

34.	‘Guarantee’ is defined by the Collins English Dictionary (Harper Collins Publishers 2016) as ‘something that makes a specific outcome or condition certain’.

35.	‘Guarantor’ is defined by the Collins English Dictionary as a ‘person who gives or is bound by a guarantee’.   

36.	By definition then, there must be no doubt as to the certainty of duty to the Court one accepts as a guarantor. In practical terms, this is the guarantee: that where or when a guarantor knows or reasonably suspects that the person on bail has breached a term of their bail conditions, the guarantor will take all reasonable steps to notify the police. 

37.	The independence of the guarantor to do this without fear, persuasion or impediment is therefore an important consideration. This gives an assurance of objectivity and clarity to the duty of being a guarantor. 

38.	This brings me to the proposed nominees as guarantor for the Applicant. 

39.	The first nominee is Mr. Henry Ariro. I note from his affidavit (filed 9 September 2025) that he is the adjacent neighbour of the Applicant, both of whom live in New Town, Maprik, East Sepik Province. He is the President of Maprik Wora Local Level Government and is an active member of the East Sepik Provincial Assembly.

40.	In my view, having lived near each other for a while, it would not be unreasonable to assume that over time Mr. Ariro and the Applicant would have grown a close relationship between them as neighbours do. 

41.	From the evidence of the Applicant in his affidavit, he deposes that Mr Ariro knows him very well, and so it would be fair to say that there is a friendship that exists between them both. Suffice it to say, I took Mr Ariro’s nomination as a guarantor to be an arrangement of convenience for the Applicant rather than the Applicant giving it any genuine meaning.   

42.	To my mind, acquiescing at the convenience of the Accused questions Mr. Ariro’s independence and his fortitude to act as a guarantor. What’s to say it would be convenient for him to overlook a bail condition breach by the Applicant in the future?  

43.	This is important in the context of my discussing above the real sense of being a guarantor and the responsibilities it carries.

44.	I also have a concern that with being an active member of the East Sepik Provincial Assembly and his duties as the President of the Maprik Wora LLG, Mr. Ariro would not have a real focus on his duty as a guarantor. There was no evidence to assist the Court as to how he would manage being a guarantor while being a busy public official.  

45.	For these reasons, I have doubts that Mr. Ariro would make a good guarantor. 

46.	In passing, I make a general comment, which is my view only, that active public officials ought not be placed in a position to be a guarantor for an accused person in bail applications. This is for the sake of avoiding potential controversy to their Office and duties, and includes members of the disciplined forces like Police, Defence and Corrections officers. 

47.	The second proposed guarantor is Mr. Tom Sikali. He deposes in his affidavit (filed 9 September 2025) that he is the brother-in-law of the Applicant, and that he is a self-employed farmer who lives at Aupik village, Maprik. He currently also does consultancy work with lawyers and is a trained former policeman. 

48.	Mr. Sikali is directly related to the Applicant as his brother-in-law, and immediately to my mind there is a question of his allegiance. Would he be able to clearly carry out the duties of a guarantor without being biased to his family relation? The influence of the family dynamic is a real consideration, in my view. 

49.	Further, in terms of supervision, Mr. Sikali lives at Aupik village whilst the Applicant lives at New Town in Maprik. Neither he nor the Applicant have provided evidence as to the proximity of these two locations from each other and how Mr. Sikali will adequately supervise the Applicant given the distance.   Again, I am of the view that this is a guarantor nomination at the convenience of the Applicant.  

50.	Similarly, I have doubts in the ability of Mr. Sikali to be an independent guarantor to ensure that the Applicant complies with any or all bail conditions.  

51.	For these reasons, I reject both Mr. Ariro and Mr Sikali as suitable guarantors. 

Consideration of Grounds for Bail

52.	Having carefully considered the evidence and submissions in support of the Applicant, I find that there are contrasting priorities in the grounds for which the Applicant seeks bail. 

53.	In the Applicant’s Form 1, his grounds at “Why Should You Get Bail?” are-

•	‘Overcrowding, Poor Hygiene’;
•	‘I was threatened by the relatives of the victim’;
•	‘I am a private electrician and to complete my projects awarded to me (my company)’. 

54.	However, in his affidavit, the Applicant does not expound on his reasons for bail given in the first two (2) points in Form 1. The points remain undeveloped, which in my view, would have made for better persuasive value had they been so. The opportunity was missed here. 

55.	Aa it stands, there is no independent evidence provided in either the Applicant’s Form 1 or affidavit to support the statement that the police cells are unhygienic and over-crowded to give the Court a sense of the severity or urgency of his circumstance.

56.	 It is not enough just to make a statement; the Applicant has the onus to bring independent evidence to support his grounds, which grounds themselves must be compelling (see Mark Gunua v The State (2010) N4136). In the absence of such evidence, I reject this ground.

57.	This is also true concerning the statement of being threatened; to what extent and degree is he being threatened and by whom? Again, there is no evidence to support this ground, and the Court remains unassisted. Moreover, the Court in In re Bail Application by Hombi (2010) N4080 amongst others, discussed this ground and held that it was an unsuitable ground for bail.

58.	 For the same reason, this ground is also rejected. 

59.	It is obvious, on my perusal of the Applicant’s affidavit in support, that he seems more concerned with the commercial interest of his business and employment. Indeed, it is the only ground for bail that he deposes to. To my mind, his business disruption is a natural consequence of his being in custody on a serious charge. I find this ground untenable and inappropriate, certainly not exceptional (see Kuku Hayara v The State (2008) N3488).

60.	I reject this ground as well.

61.	I understand that the complainant is now resident with her maternal uncle, and that the mother continues to reside at the home of the Applicant. Even though there appears to be some physical distance between them, yet I must consider the real possibility that the natural maternal instinct may give rise to a circumstance where the mother will meet her daughter, who is still of very young age.  

62.	In that circumstance, there is a real possibility that the Applicant may use that relationship to interfere with the young complainant, either directly or indirectly through the mother. I find then that interference pursuant to Section 9 (1) (f) of the Act is likely to occur. 

63.	Together with my reasons above, I think it is also important here to consider the application in the context of the charges and allegations. I agree with the Court in The State v Beko Job Paul [1986] PNGLR 97 that notwithstanding the considerations of Section 9 (1) of the Act, the nature of the offence itself may have the effect of operating as a sufficient factor to refuse bail. 

64.	In this case, the evidence before the Court is one of a serous assault on a young girl, aggravated by a breach of trust. In my view, the Court has a duty to give this appropriate consideration as well in the weighing and balance of things. In that respect, this Court notes the intent of Parliament to protect children and deter offenders by passing the amendment to the Criminal Code Act with the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (amendment). 

65.	An effect of this amendment, amongst others, is that responsibilities of persons in positions of trust are appropriately placed in perspective. If anything, these responsibilities are enhanced, because the trust a child has in their parent is sacred; it is complete and innocent. This underpins the seriousness of a charge under this amendment.

66.	As I stated above, this must be taken into the balance of the grounds for bail in the interests of justice.  

67.	In the result, I find that the Applicant has failed to demonstrate his grounds as exceptional and so has not sufficiently discharged his burden to convince the Court that his continued detention is not justified. I adopt what His Honor Kandakasi J (as he then was) said in Steve Lester v The State (2001) N2044:

"The applicant therefore has the burden to show and convince this Court that his continued detention in custody is not justified, and the interest of justice requires his release on bail. If the grounds relied on for bail by the applicant is intended to discharge that burden, I have two difficulties. First, there is no evidence whatsoever in any form to prove their existence. Secondly, I fail to see how all or any of them could be regarded as a factor or factors showing his continued detention in custody is not justified and that it is in the interest of justice that he should be granted bail".

Decision on bail

68.	From the considerations above, I am satisfied that – 

(i)	The State has established the existence of a serious assault pursuant to Section 9 (1) (c) (i) of the Act.

(ii)	There are no exceptional circumstances for the Court to exercise its discretion to grant bail.  

(iii)	Both persons nominated are unsuited as guarantors. 

(iv)	There is a likely risk for interference to occur pursuant to Section 9 (1) (f) of the Act.  

69.	For the forgoing, bail is refused.  

Lawyers for the applicant: JPJ Lawyers
Lawyer for the State: Public Prosecutor