State v Ilib [2010] PGDC 66; DC2011 (10 December 2010)

DC2011

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF CRIMINAL JURISDICTION]
Case Number Com. No 333-334/2010

BETWEEN

STATE

AND

NERO ILIB
(Defendant)

MADANG: J KAUMI, M
2010 – 10th December

CRIMINAL LAW –Bail Application– Application by applicant– Grounds or reasons for bail not substantiated by evidence – Strict rules of evidence do not apply – Long list of bench warrants following breach of bail terms considered - Court need to consider interest of society to deal with offenders according to law once before the court – Stricter and higher bail terms may now have to be imposed.

Cases cited:
Re Fred Keating [1983] PNGLR 133
The State v. Beko Job Paul [1986] PNGLR 97
The Matter of an Application for Bail, by Sergeant Pokou Steven & Others v. The State [1997] N1641
Jeffery Orasa v The State (MP.351 of 2000) (Unrept and Unnumbered)
Steven Lester v The State N2044
John Raikos v The State (MP.206 of 2000) (Unrept and Unnumbered)
Francis Kensi Pele v The State (2000) PNGLR 100

Legislation:
Constitution of PNG
Bail Act Chapter No. 340
Criminal Code of PNG

Counsel:
Applicant in person
Sgt P Nonao for the State

10th December 2010

1. Kaumi, M: This is an application for bail under s. 42(6) of the Constitution and s. 6 of the Bail Act (Chp.340) by the applicants and the reasons for my judgment to meet the requirements of s.16 of the Bail Act.

INTRODUCTION

2. The applicant was charged with one count of sexual penetration of a 16 year old girl contrary to Section 347 and one count of incest contrary to section 223 of the Sexual Offences & Crimes Against Woman & Children Act, 2002 and detained at Beon CI in the Madang Province.

3. The applicant though he has not specifically stated in his application I assume that he has applied for bail under Section 42 (6) of the Constitution and Section 6 of the Bail Act Chapter 340.

4 .The Police Prosecutor objected to the bail application as per the letter of the Informant, Detective Sergeant Ray Ban dated 23/11/10.

RELEVANT FACTS

5. The applicant filed his application for bail on the 9th of November 2010.

6. The application comprised of the Bail Application, supporting affidavits from the defendant, and two guarantors, Mr. Jack Anan (Community Policing Officer attached to the Madang Police Station Leader of Ord Village), and Mr.Ilib Ade, father of the applicant/defendant and an affidavit from Mr Asebi Joe of Iku village , Bogia who is the father of the victim and who deposes in favour of the application.

7. The allegations against the applicant are that on 26th October, 2010 at Hudini village, Madang the defendant sexually penetrated a sixteen year old girl, Lovina Asebi and that she was related to the him as a first cousin their mothers being sisters when he took her to a bush and threatened to kill and assault her causing her to give in to his demands to have sex with her.

8. The victim’s father Mr Joe Asebi Iragi laid the complaint against the defendant and he was taken to the CID office for questioning in relation to this matter and later arrested.

9. The grounds for his application are:-

1. He is a first time offender.
   
2. He is the eldest in the family.
   

100. He is the representative of his father and mother.
     

4. He is the helper to the family.
   

THE RELEVANT LAW

10. The relevant law governing the issue of whether or not bail be granted, which I adopt as a matter of practice has been considered by Kandakasi.J in Jefferey Orasa v The State ^[1] at page 2-3 and was summarized in this way:-

“A. A person arrested and charged with an offence is entitled under s.42(6) of the Constitution to bail at any time except for willful murder and treason but a bail authority still has the discretion to refuse bail "if the interest of justice otherwise requires";

B. The Bail Act (Chp.340) by s.9 sets out the circumstances in which bail may be refused;

C. The existence of one or more of the circumstances under s. 9 of the Bail Act may form the basis to refuse bail but that is not automatic. There is discretion in a bail authority to grant bail if an applicant for bail is able to show by appropriate evidence that his "continued detention in custody is not justified";

D. The burden to produce appropriate evidence to form a foundation for a grant of bail is not a difficult and complicated one because by virtue of s.9 (2) of the Bail Act excludes the application of the technical rules of evidence;

E. The list of circumstances under s.9 of the Bail Act is not exhaustive and other factors such as the following may be taken into account before deciding whether or not to grant bail:

a. The applicant being a habitual criminal;

b. Whether the applicant is a trustworthy person and will meet any bail terms that may be imposed;

c. The number of bench warrants outstanding for bail jumpers for the kind of offence the applicant is held in custody for;

d. The costs and expenses the society may be put through in trying to bring the applicant to justice if he breaches his bail terms which may mean delays in a speedy trial which may have the risk of the State, loosing vital evidence supporting the charge against the applicant;

e. The expenses and the trouble the society through the Police Force, has been put through to secure the applicant’s arrest and incarceration;

f. Whether the proposed guarantors are serious in their proposal having regard to the amount of money they are able to pay in sureties;

g. Whether the amount of cash bail proposed has any relative correspondence to the offence with which he has been charged; and

h. Whether the applicant would have already served his penalty without a trial by reference to the offence with which he has been charged and the possible date for his trial”.

11. His Honor’s summation above followed judgments in Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State ^[2] (; The State v. Beko Job Paul ^[3] Re Fred Keating ^[4]; Steve Lester v. The State ^[5] (supra); John Raikos v. The State ^[6] ; Francis Kensi Pele v. The State ^[7].

12. His Honour Kandakasi continued that Akuram J., in The Matter of an Application for Bail by Sergeant Pokou Steven & Others v. The State ^[8] and Wilson J., in The State v. Beko Job Pau ^[9] provide that the list of circumstances under s. 9 of the Bail Act do not necessarily limit the factors a Bail authority can take into account to decide whether or not to grant bail. Other factors may be taken into account in order to determine what does "the interest of justice otherwise requires". In other words, bail authorities should not proceed to grant bails as a matter of course. Instead as already stated above, it should carefully consider the interest of the applicant to be left out on bail and the interest of the society to have offenders dealt with according to law once brought before the Courts in a manner that is prompt, effective and less expensive. This may involve the bail authority taking into account all of the factors under s. 9 of the Bail Act and such other factors the bail authority considers appropriate before deciding whether or not to grant bail

13. Section 6(2) of the Bail Act provides that:

"A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.

THE PRESENT CASE

14. In consideration of these principles discussed above and applying them to the present case, the application is refused. The relevant factors which have a bearing on my decision are in the following paragraphs.

15. Firstly, S.9 (2) does away with the strict application of the rules of evidence and the applicant has not taken advantage of this by providing evidence in support of the grounds advanced for their application.

16. Secondly, the applicant did not produce any evidence and show that his continued detention in custody was unjustified.

17. Thirdly, when I consider the circumstances of and number of offences the applicant has been charged in comparison to the amount of money proposed for cash bail and surety which was a mere K100:00 and K200:00 respectively plus the fact that the applicant has not proposed any amount of money as bail, surely they do not correspond and are insignificant and by this I mean he needed to show some seriousness about his need to comply with any bail terms that may be imposed. As Kandakasi.J stated in Jeffery Orasa v The State (MP 351 of 2000), “A higher cash bail and surety may make an accused person who is granted bail to comply with the terms of the bail if any, to protect or save guard against their forfeiture. This may eliminate the risk of him breaching his bail conditions, which is a risk a bail authority has to consider and if satisfied that there will be no breach of bail conditions, bail may be granted”.

18. Fourthly, that the defendant did not produce any evidence that the victim being a close blood relative would not be interfered with; I mention this in light of the moves highlighted in Mr Joe Asebi’s affidavit and the deadline he set for compensation to be paid on 10/01/11 and it would seem from the overtones of Asebi’s affidavit that the interest of the victim is being deliberately sacrificed in favour of the interest of the extended family and monetary gain.

19. The applicant/defendant has not produced any evidence to show that he is a trustworthy person and would meet any bail terms that may be imposed and the third and fourth factors cast a shadow of doubt on the applicant’s trustworthiness to comply with all bail conditions and for that matter the sincerity of the whole application.

20. In the immediate case I have considered all of the above as well as the need to be more cautious in view of the long list of outstanding bench warrants for people who have been granted bail and have breached the terms of their bail In the Madang Province alone as at 06/07/2009 there were 399 Bench Warrants outstanding of which a significant number were for Rape and dating back to 1987. The trend in this province seems to be that a grant of bail is taken as a one way ticket into oblivion and are never seen again in Court. The large number of bench warrants in this province alone is testimony of the failure of bail authorities to carefully assess the trustworthiness of applicants to adhere to all conditions that accompany the bail granted. This has been possible because the terms more particular the cash bail amounts and sureties have been almost negligible.

21. I find that the “interest of justice otherwise requires” that the defendant be detained further.

Applicant unrepresented
Police Prosecutor for the State

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^[1] (MP.351 of 2000) (Unrept and Unnumbered)

^[2] The Matter of an Application for Bail, by Sergeant Pokou Steven & Others v. The State (1997) N1641

^[3] [1986] PNGLR 97

^[4] [1983] PNGLR 133

^[5] [1983] PNGLR 133

^[6] (MP.206 of 2000) (Unrept and Unnumbered)

^[7] [2000] PNGLR 100

^[8] Supra Note 2

^[9] Supra Note 3