N11539

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BA NO. 649 OF 2025

IN THE MATTER OF BAIL APPLICATIONS BY FELIX SEPHA

MADANG: NAROKOBI J
14 OCTOBER, 20 OCTOBER 2025

BAIL –Constitution, Section 42(6) – Bail Act, Section 4, 6 and 9 – exercise of discretion whether to grant bail – interests of justice-length of period awaiting trial – s 37(3) and (14) of the Constitution- 10 months awaiting trial - human rights considerations- bail granted.

The applicant has been charged under s 347(1) of the Criminal Code for rape. The allegation is that on 26 November 2024 at Gum Village, Madang District, Madang Province, he raped a woman. He applies for bail stating he is sick with gastroenteritis and malaria, remanded in cell blocks that are too crowded, and there is an outbreak of TB. He has been detained since 10 December 2024, and has not been committed to stand trial by the District Court.

Held

Giving much weight to the right of the applicant to a speedy trial, and that it is highly unlikely that his case will not reach trial, within four months after committal as required by s 37(14) of the Constitution, the applicant is granted bail, subject to standard bail conditions.

Cases cited
Fred Keating v The State [1983] PNGLR 133 
Kange v Independent State of Papua New Guinea (2016) SC1562

Counsel
C Momoi, for the applicant
J Kasse, for the State

RULING ON BAIL APPLICATION

1.	NAROKOBI J: The applicant applies for bail under ss 4 and 6(1) of the Bail Act Ch 340 and s 42(6) of the Constitution.

2.	The bail application is objected to by the State.

3.	The applicant has been charged under s 347(1) of the Criminal Code for rape. The allegation is that on 26 November 2024 at Gum Village, Madang District, Madang Province, he raped a woman. He was detained on 10 December 2024, and still has not been committed to stand trial in the National Court.

4.	Section 42(6) of the Constitution states:
(6) 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.

5.	Evident in s 42(6) is an entitlement to bail, unless the interests of justice otherwise require. This presumption in favour of bail does not apply to a person charged with treason or wilful murder.

6.	Rape is an offence that falls under s 4 of the Bail Act where a person charged with that offence can only apply for bail to the National Court or Supreme Court to consider the bail application.

7.	Section 6 of the Bail Act allows an applicant to apply for bail at any time following detention.

8.	Section 9 of the Bail Act states that the bail authority shall not refuse bail unless one of the following conditions exist:
•	that the person in custody is unlikely to appear at his trial if granted bail;
•	that the offence with which the person has been charged was committed whilst the person was on bail;
•	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;
•	that the person is likely to commit an indictable offence if he is not in custody;
•	it is necessary for the person's own protection for him to be in custody;
•	that the person is likely to interfere with witnesses or the person who instituted the proceedings;
•	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;
•	that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;
•	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;
•	that the alleged offence is one of breach of parole.

9.	In this case, the commission of the alleged offence involves serious assault and threat of violence. In the case of Keating v The State [1983] PNGLR 133, the Supreme Court held that the bail Court still has a discretion, even if one of the conditions set out in s 9 of the Bail Act exists.

10.	    The applicant applies for bail for the following reasons:
•	He is sick with gastroenteritis and malaria.
•	Remanded in cell blocks that are too crowded.
•	There is an outbreak of TB.
•	Pledge K500.00 bail.
•	He will reside in Yabob Village, Madang District, Madang Province, during the course of the trial.
•	His guarantors are responsible persons.

11. The State submits that bail should not be granted as the medical report is not recent, and there is a medical clinic at Beon. Further, the State relies on the case of Kange v Independent State of Papua New Guinea (2016) SC1562 and submits that issues of threats of assault, intimidations, harassments, or personal injury or death to a prisoner or a remandee by other prisoners or remandees is not a circumstance that warrants the grant of bail but appropriate measures to be taken by the Correction Services.

12.	I begin on the premise that the applicant is entitled to bail, or there is a strong presumption in favour of granting bail unless the interests of justice requires otherwise, because the offence is not one of treason or wilful murder. What are the interests of justice militating against the grant of bail? In my view they are as submitted by the State. Factors in s 9 of the Bail Act, are present in this case, that is serious assault and threat of violence.

13.	The second legal factor in the applicant's favour is that he is presumed innocent until convicted by a court of competent jurisdiction.

14.	The reasons advanced to support the application on their own is not sufficient to grant bail, as Kange v Independent State of Papua New Guinea suggests. There is also serious assault and threat of harm surrounding the commission of the alleged offence, showing the existence of considerations in s 9 of the Bail Act.

15.	I however, give much weight to the right of the applicant to a speedy trial, and that it is highly unlikely that his case will not reach trial, within four months after committal as required by s 37(14) of the Constitution. The detainee has been detained since 10 December 2024. It is almost one year now, and he still has not been brought to trial.

16.	The circumstances of Kange v The State relied on by the State can be distinguished from the present one, that is that the accused has been in custody for over a year and has not been brought to trial. This fact, taken together with the reasons he raises for bail, has persuaded me to grant bail. 

17.	I will therefore in the exercise of my discretion grant bail at K500.00 to the applicant, and order that their guarantors, that is Luke Banag and Aibun Bahude, each pay K250, per applicant as surety, and the standard bail conditions apply, including that the applicants reside at Yabob Village, Madang District, Madang Province, whilst going through their court process.

18.	     Ruling accordingly.

_________________________________________________________
Lawyer for the applicant: Public Solicitor
Lawyer for the State: Acting Public Prosecutor