Ainui v The State [1999] PGNC 46; N1888 (8 June 1999)

Unreported National Court Decisions

N1888

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP NO. 249 OF 1999
IN THE MATTER PURSUANT TO SECTION 6 OF THE BAIL ACT
BETWEEN: LUCAS AINUI
APPLICANT
AND: THE STATE
RESPONDENT

Goroka

Kirriwom J
4 June 1999
8 June 1999

Counsel

Mrs C. Ashton-Lewis for the State

Mr B. Tabai for the Applicant

8 June 1999

KIRRIWOM J: The applicant was charged with rape of a girl estimated to be aged 15 years old. The applicant is a married man aged 30 years or thereabouts with a daughter now attending school in East New Britain where he hails from. He resides at Seigu with his wife and operates a PMV business.

The circumstances of the alleged offence are very serious. The applicant and another person allegedly took the victim to Madang for sight-seeing. Victim has never been to Madang and there is no dispute about her wanting to go to Madang but only if the accused and his pal were travelling with their respective families. On the pretext of going with their families the accused and his friend picked up the victim from her adoptive parents home at Goroka University Campus at 6 pm on the evening of 4th May 1999. It must be mentioned at the outset that the accused and the victim are from East New Britain and believed to be related. They drove that night to Madang and along the road at the junction of Brahman the accused stopped the car and forced the girl into the bushes where he had sexual intercourse with her by force. While they were in Madang he drove her to Kalibobo Beach on 6th May 1999 and again had sex with her against her will. And the following day on 7th May 1999, while they were still in Madang he drove the girl to Tappo River where he again had sex with her in the bushes. In all these occasions the victim never consented. Her resistance would have been meaningless as she was in a strange place and knew nobody else except the accused and his friend. They returned to Goroka on the 8th of May 1999 when the victim reported these sexual attacks to her parents who referred the matter to the Police. The accused is therefore charged with three counts of rape. He applies to the Court to be released on bail pursuant to section 4 and 6 of the Bail Act. The committal proceedings have just begun and at this stage it is unclear when the investigations will be completed.

The applicant can afford K200 bail and proposed his sister, Kedea Ainui, a policewoman attached to Goroka Police as his guarantor. I don’t recall hearing or being told as to how much she is willing to pledge or pay-up front in support of her undertaking to act as guarantor. The applicant denies the charges “ .. on the basis that I never had sexual intercourse with the victim nor used any force on her to attain penetration or to have sexual intercourse with her.”

His grounds for seeking bail are that he never committed these series of rape on the victim and that his PMV business is in ruins.

State does not oppose bail noting that the applicant and the victim are related as uncle and niece however stressing on a higher monetary bail instead of the K200 as the applicant is a businessman.

I have considered all the circumstances of the case and for the reasons that the applicant and the victim are somewhat related, I am reluctant to grant bail at this point in time until committal. As I noted earlier, committal proceedings are under progress so which means investigations are not yet completed. The victim and her family have decided that the law should deal with their complaint. The most crucial period for a criminal case once charges have been pressed is between charging and committal. Charges get dropped due to external pressures and where there exists certain relationship between the parties, serious discussions are held during this time which determines the existence or demise of a charge. Therefore until the Committal Court has dealt with the case, I am not inclined to release the applicant on bail. Police investigation must be allowed to proceed unhindered. In other words the applicant is at liberty to reapply to this Court should he be committed to stand trial in the National Court.

I just want to make one observation. This Court has been imposing hefty monetary bails where gravity of the offences charged warranted such amounts being levied. Defendants released on bail in this country must be thankful that no exorbitant fees are levied like in the US. For a wilful murder or rape, that is already looking at a million dollar bail. I thought I might mention this because whilst the applicant here has professed himself to be a businessman running a PMV, it seems ironical that his liberty or freedom is only worth K200. I think he can do better than this.

In all the circumstances of the case, I refuse bail to the applicant.

Lawyer for the State: Public Prosecutors

Lawyer for the Applicant: Pryke & Co.