Akai v Police [2021] PGDC 194; DC7051 (12 July 2021)

DC7051

PAPUA NEW GUINEA.

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN IT’S CRIMINAL JURISDICTION]
DCC NO: 192 /2020.

In the matter of Bail Application pursuant to Section 42 (6) of the Constitution and Section 4 and 6 of the Bail Act

IN THE MATTER BETWEEN:

1. DARREN AKAI
2. MICHAEL BOA
3. MALCOLM MOMOKOPA

Defendant /Applicant(s).

POLICE/STATE.
Respondent(s).
.

Popondetta: Michael W. Apie’e

2021: July 07^th and 12^th.

CRIMINAL LAW. Objections to Bail Applications-Bail Applications pending committal to Trial-Offence of Rape-Onus of Proof-State/Police to establish/Show one or more of considerations under section 9 of Bail Act exist. Applicability of Section 4 (1) (b) of the Bail Act where no firearm is used in offence.

Cases Cited:
Re Fred Keating v. The State [1980] PNGLR 133.
State v. Kelly Mua [1997] PGNC 51; N1548

References:
Constitution of Papua New Guinea
Bail Act of Papua New Guinea.

Representation;
Mr. E. Yawisa for the Applicants.
Senior Constable M. Konte for the Respondent.

RULING ON BAIL APPLICATION(S).

Background.

1. The Defendant were each and severally Charged with one Count of Rape Contrary to Section 347(1) of the Criminal Code Act chapter 340.
   
2. The Defendants were taken into custody and charged and thereafter brought to court on the 30^th of June 2021.
   
3. They now seek bail pursuant to Section 6 of the Bail Act whilst awaiting their Committal Process in the District Court.
   

Bail Application.

4. The Defendants rely on Their Application dated and filed the 02/07/21 and also their Individual Affidavits and also the Affidavits of their Proposed Guarantors Mr. Natalis Naimo and Mr. Luke Jambara all filed deposed and filed on the 02/07/21.
   
5. There is no ‘Statement or Summary of Facts’ Produced by the Informant or the Prosecution to assist the Court in assessing ‘Potential Background issues’ that might be deemed relevant in assessing whether or not to allow the Bail Application.
   
6. The essence of Applicants Applications submissions on bail is as follows;
   
   1. The Alleged ‘Victim’ is Defendant Daren Akai’s girlfriend.
      
   2. No ‘Rape’ ever took place. (This it seems, does not exclude any potentially consensual activities that might have taken place).
      
   3. The Defendants each have permanent residential addresses in Popondetta courtesy of their Parents working and living in Popondetta.
      
   4. They will comply with any and all conditions imposed.
      
   5. Applicant Malcolm Momokop is a Juvenile age 16 years old doing Grade 9 at Popondetta Secondary School.
      
   6. They have proposed two Stable and reasonable members of the Popondetta Community to guarantee their bail.
      

Prosecutions Response.

7. The Prosecution via Senior Constable M. Konte opposed bail and submitted a Submission in opposition to the Bail Application on the 07/07/21, and apart from the considerations in Section 9 of the Bail Act, the essence of the objections to bail are that;
   
   1. That as per section 4(1) (b) of the Bail Act, for the Crime for which the Defendants are charged, only the National Court can allow bail.
      
   2. Defendants are not likely to attend or appear in court if allowed on Bail
      
   3. That Applicant Michael Boa was on bail for another Criminal Offence of Break, Enter and Stealing when he allegedly committed this offence.
      
   4. That at the time of the Offence the Defendant Darren Akai had in his possession a bush-knife with which he threatened and took the ‘Victim’ out of her house whereupon the other Defendants joined in to threaten and take turns in Raping her.
      
   5. All these are matters raised from the bar table, no affidavits or Witnesses being produced to attest to these contentions.
      
8. Observations /Assessments. Having heard the Submissions in respect of this Bail Application, I make the following observations and assessments;
   
   1. Section 42 (6) of the Constitution provides as follows that;
      

‘A person arrested or detained for an offence (other than treason or willful 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.’

2. The right of persons charged with willful murder or treason to apply for bail is afforded by s. 4 of the Bail Act 1977.
   
3. Section 4(1) (b) of the Bail Act reads;
   

4. ONLY NATIONAL OR SUPREME COURT MAY GRANT BAIL IN CERTAIN CASES.

1(1) A person– (a) charged with willful murder, murder or an offence punishable by death; or

(b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or breaking and entering a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence, shall not be granted bail except by the National Court or the Supreme Court.

(2) For the purposes of Subsection (1), “firearm” includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile.

4. As the many preceding cases in Papua New Guinea like RE: Fred Keating, have established, in charges that carry the death penalty and also for offences including rape for which a firearm is used (Section 4(1) (b) of the Bail Act), bail can only be considered in the National or Supreme Court.
   
5. In this current case and Application before this court, No-matter how one ‘Dress it, cut it or slice it’ this case does not fall under section 4(1) (b) of the Bail act as there was no firearm being allegedly used in the commission of this offence. Full stop.
   
6. The District Court therefore in this case has jurisdiction to hear this bail application.
   
7. Other allegations made by the Prosecution about the Requirements under section 9 of the Bail Act, are mentioned as follows;
   
   1. The possession of a knife by one of the defendants, wherein threat of violence or actual violence might have being used against the Victim,
      
   2. That the Defendants are a flight risk and might not attend court should they be allowed on bail
      
   100. That they might interfered with witnesses given approaches already supposedly made to the Victim by relatives of the Defendant.
        
   4. Or that one of the Defendants Michael Boa was on bail when he committed this other offence, which is denied by counsel saying he was actually discharged of that Charge after prosecution failed to produce hand-up briefs in time.
      
8. Regarding these Allegation’s, I will observe as follows;
   
   1. First of all, No Statement or Summary of Facts is before the Court, disclosing any aggravating factors for the court to note on face value.
   2. Also, in the unreported case of The State v. Kelly Mua N1548, as per Batari J, the Onus is on the State (In this case Police) to show or establish that one or more of the considerations under section 9 of the Bail Act Exists, in order for the Court to refuse bail.
      
   100. Even though Strict Rules of Evidence might not apply in regards to objections to Bail, it is still incumbent on the Opposing Party to produce oral or material evidence to sustain their objections to bail, rather than offering or proposing evidence from the bar table, such as in this case.
        
   4. Even any suggestion of violence or approaches made to the victim by relatives of the Defendants, must be properly put before the Court by affidavits or people willing to come to court to testify on names, places, times and incidences rather than by statements from the bar table by Litigants, in this case the Police Prosecutor.
      
   5. The Standard of Proof in bail cases is that One or more of the contentions/elements in Section 9 exists pertaining to the Application before the Court. The Prosecution has not discharged that requirement in its objections to this Bail Application.
      
   6. The Proposed Guarantors relied on seem to be stable and reliable members of the Popondetta Community.
      
   7. Any concerns the Prosecution might have regarding the Defendants absconding bail or breaching any condition of bail could easily be cured in the opinion of this court with the imposition of appropriately tailored conditions of Bail.
      

9. Since I have ruled that Section 4(1) (b) of the Bail Act did not apply to this case, the Defendants will therefore be deemed at Law to have the automatic right to bail under section 42 (6) of the Bail Act in this instance.
   
10. In the final Analysis, the Court finds and Rules as follows that;
    
    1. The Objections to Bail are not made out.
       
    2. The Application for bail by the Defendants are made out.
       
    3. The Proposed Guarantors Messrs Natalis Naimo of Section 23 Allotment 3 at Oveta Street in township of Popondetta and Luke Jambara of Independence Ovel, township of Popondetta, are hereby approved as guarantors for the Defendants.
       
11. Accordingly, the Court will allow bail and Order Conditions of Bail as follows;
    
    1. The Defendants are each and severally allowed bail in the sum of K500.00 each.
       
    2. The Guarantors Mr. Natalis Naimo and Mr. Luke Jamabara of addresses listed above are each approved as Guarantors for the Applicant with Non-Cash Sureties of up to K1000.00 each in the event of any breach of Bail Conditions.
       

CONDITIONS OF BAIL

3. The Defendants are further ordered as follows;
   
   1. They are hereby ordered not to Directly or Indirectly Interfere or attempt to Interfere with Witnesses or Potential witnesses against them in the matter before the Court.
      
   2. The Defendants are to Report to the District Court Clerk of Court Every Working Wednesdays between the hours of 9.am to 3.pm, until their matter is finalized before the District Court, their first Reporting to be this week Wednesday the 14/07/21.
      
   100. They are ordered not to Leave Popondetta or the Northern Without first obtaining permission from the District Court, until their matter is finalized before the District Court.
        
   4. They are not to openly consume liquor or alcoholic beverages or any other intoxicating substances whilst on bail.
      
   5. They are to be confined to their residential addresses between 6.pm and 6.am every day until their matter is finalized as follows;
      
      1. Applicant Darren Akai at his Parents Residence at Isivi Street in Popondetta.
         
      2. Michael Boa at his Parents Residence at Section 13, Allotment 6 at Isivi Street Popondetta.
         
      3. Malcolm Momokopa at his Parents residence at Section 37 Allotment 9, at Isivi Street Popondetta.
         
4. The Approved Guarantors are to sign their Non-Cash Sureties and leave their Contacts including Postal, Electronic mail details and also Telephone and or Current Mobile Phone Numbers with the clerk of Court.
   
5. Once released on bail, the Defendants are to each attend every mention date of their case before the District Court without fail, and they are to next appear on the 26/07/21 before the District Court to answer their bail and be further dealt with according to Law.
   

Public Solicitors for the Applicant.
Police Prosecutions for the Respondent.