Dae v The State [2000] PGNC 14; N1911 (18 August 2000)

Unreported National Court Decisions

N1911

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP NO. 326 OF 1999
IN THE MATTER OF A BAIL APPLICATION PURSUANT TO SECTION 6 OF THE BAIL ACT CH. 340
BETWEEN: BON DAE
APPLICANT
AND: THE STATE
RESPONDENT

Goroka

Kirriwom J
7 July 1999
14-15 July 1999

Counsel

Ms R. Johnson for the State

Mr M. Apie’e for the Accused

15 July 1999

KIRRIWOM J: The applicant Bon Dae is committed to stand trial on one count of armed robbery and one count of rape. He is one of the four men who allegedly held up a family at night at Kainantu High School and apart from ransacking the dwelling house of all its contents including TV, beddings and mattresses, they also raped the owner of the house, Mrs Taro Mallicki, a high school teacher. Three of the four have been arrested and have been committed to stand trial together with the applicant.

The applicant is a married man aged 25 years old and has a son now only monthly old. At the time these offences were committed he was unemployed and living in his village at Anona, near Kainantu. However he was previously employed by Kainantu High School as a security Guard in 1993 and by Kainantu Lodge from 1995 - 1997 also as security guard.

He denies the offences alleged against him although the Statement of Facts state quite explicitly that the applicant and his accomplices upon arrest admitted committing the robbery and rape and that some of the properties stolen were recovered a few days later. According to early indications on pre-trial review, the accused and his accomplices will deny the charges notwithstanding their admissions which they claim were involuntary and voire dire is expected at the hearing. The trial has been estimated to last one week and until further review the case is now set down for 14, 15, 16, 17 and 18 August 2000.

Defence Counsel submits if the accused is not given bail he will wait for over a year before his trial is heard. He said the applicant will not abscond as he has a guarantor who is prepared to pledge K200 in support of his undertaking to ensure that accused complies with his bail conditions.

This bail application is pursued on the promise that the applicant is charged with one count of armed robbery. But the statement of facts clearly discloses another serious indictable offence of rape. Defence counsel has a duty to not mislead the Court. The fact that Committal for trial in the National Court only relates to arm robbery does not obviate counsel’s duty to advise court on the evidence at hand that there is possibility of a further indictment of another serious crime as disclosed.

The allegations against the applicant and his accomplices is very serious. There were guns involved with live bullet in them that could have killed. The school teacher was held-up in her house at night and raped in her bedroom in the presence of two young relatives. Statement clearly shows admissions by the accused and a number of properties recovered. Whilst the accused’s instructions to lawyer are that their admissions were involuntary, this Court can only go by what is on record. Whilst presumption of innocence is paramount when considering bail, Court will be irresponsible in not bearing in mind that admissions have been made and a number of properties have been recovered. This is an early indication of the strength of the persecution’s case. Thus given this possibility the chances of the accused absconding land not turning up for his trial are real and not speculative. The evidence show strong case of two very serious crimes committed against a defenceless woman at night in her own home, robbed and raped. This is the very kind of case that prompted tightening of law on bail and courts must not be too legalistic and insensitive to public perceptions of what is just and lawful.

In the exercise of my discretion therefore I refuse bail to the applicant.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor