Michael v State [2010] PGNC 86; N4092 (22 July 2010)

N4092

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 725 OF 2009

IN THE MATTER OF AN APPLICATION FOR BAIL PURSUANT TO SECTIONS 4 AND 6 OF THE BAIL ACT,
CH 340 AND SECTION 42(6) OF THE CONSTITUTION

BETWEEN:

JACK MICHAEL
Applicant

AND:

THE STATE
Respondent

Mount Hagen: Makail, J
2010: 20th & 22nd July

PRACTICE & PROCEDURE - Bail application - Applicant charged for rape - Grounds of - Security of applicant - Alleged threats of assault and harassment by CIS officers following revelation of identity of CIS officers involved in mass jail break out - Assisting police in investigations and revelation of identities of CIS officers allegedly involved in mass jail break out - Whether sufficient reasons for grant of bail - Bail refused - Constitution - Section 42(6) - Bail Act, Ch 340 - Sections 4, 6 & 9.

EVIDENCE - Admissibility of evidence - Affidavit of Gaol Commandant given in support of bail - State official giving evidence for person accused of committing a serious crime - Gaol Commandant obliged to serve and protect interest of State - Evidence self serving - Unreliable and rejected.

No cases cited:

Counsel:

Mr N Nagle, for Applicant
Mr J Waine, for the State

RULING ON APPLICATION FOR BAIL

22nd July, 2010

1. MAKAIL, J: The applicant Jack Michael was charged by police for rape under section 347 (1) of the Criminal Code and has been in custody since his arrest on 24th April 2009. Pending trial, he applies for bail pursuant to section 42(6) of the Constitution and sections 4 and 6 of the Bail Act, Ch 340. He relies on two grounds for the application and they are, first, he had assisted Correctional Institute Service (CIS) officers and police in their investigations with crucial information in relation to the identity of the CIS officers allegedly involved in the mass break out at Baisu CIS in April 2010. Secondly, as a result, his life is under threat from those CIS officers allegedly involved in the organizing of the mass break out.

2. The evidence of his claim of threats to his life may be found in his affidavit in support sworn on 15th July and filed on 16th July 2010 and supported by the Gaol Commandant of Baisu CIS, Chief Superintendent Simon Sobaim who gave an affidavit sworn on 15th July 2010 that the applicant was one of those who escaped during the 13th April 2010 mass break out and was re-captured after he voluntarily surrendered on 19th June 2010. He revealed names of CIS officers allegedly involved in the conspiracy and mass break out. He has been threatened by those CIS officers. As a result, he has been locked up in a separate confinement cell block to avoid being assaulted or harassed by those CIS Officers. He will be a witness for the State against those CIS officers alleged to have been involved in the conspiracy and mass break out.

3. The State does not oppose bail. It however asked for strict bail conditions should bail be granted. Although bail is not opposed, that does not mean that bail should be granted as a matter of course. The Court, as one of the bail authorities under sections 1, 6 and 9 of the Bail Act, Ch 340 must consider the application on its merit and decide whether or not the applicant has made out a case for grant of bail and the onus is on the applicant to make out a case.

4. It is noted with interest the applicant does not rely on any of the consideration under section 9(1) of the Bail Act, Ch 340 for the application although his counsel made brief submissions on them, saying they do not apply in this case. I will return to consider them later in the ruling. But first, his main grounds for seeking bail are that first, he assisted CIS officers and police in their investigations by revealing the identities of the CIS officers allegedly involved in the mass break out and secondly, his life is under threat from those CIS officers allegedly involved in the mass break out. Are these sufficient reasons for grant of bail?

5. The first point I wish to make is in relation to the evidence of the Gaol Commandant. This witness is an officer of the State as he is employed by the State to serve the interest of the State. He is a CIS officer. As an officer of the State, he is obliged to protect the interest of the State. However, he has given evidence for the applicant, a person who has been accused of committing a serious crime against the State, namely, rape.

6. While I accept that there is no property in a witness, I ask, under what authority or law does he have to give evidence for the applicant? Even though I asked this same question to both counsel during the hearing, neither of them have referred me to any law or case authority on point. Counsel for the State seemed to concede that this witness has no authority to swear an affidavit for the applicant but raised no objection to its admissibility and reliance. This makes me ask the following further questions, isn't it this officer's duty to serve and protect the interest of the State? Isn't it his duty to ensure that persons accused of committing serious crimes against the State and its people are kept away from the community until the trial, unless bail is given?

7. No satisfactory reasons or convincing arguments have been put forward by both counsel although it seemed, both counsel have accepted that this officer gave evidence for the applicant in return for valuable information the applicant gave in relation to the identities of the CIS officers allegedly involved in the mass break out. But still, I fail to see the legal basis for this officer to give evidence for the applicant. In my view, his conduct is tantamount to a serious breach of his duty to the State and undermines the authority and functions of the very institution (CIS) he promised to serve. It is inconceivable and an "unpardonable sin" that an officer of his standing and authority has gone to the extent of giving evidence for an applicant accused of committing rape in a bail application. Such conduct brings disrepute and tarnishes the image of an institution of State.

8. I make these observations because I believe we must protect and strengthen institutions of State, especially where they are institutions established under the Constitution of this country. The CIS is established as a State Service under section 188(2) of the Constitution and section 4 of the Correctional Service Act, 1995. The very fact that this institution is established by and under the Constitution and an Act of Parliament signifies its importance in our system of government and the maintenance of the rule of law in this country in particular, the administration and dispensation of the criminal justice system. The CIS is charged with corrective and rehabilitative powers and functions under section 7(1)(c)&(d) of the Correctional Service Act, 1995. It is the end of the administration of the criminal justice system. It is therefore, of paramount importance that officers serving in this institution must serve the State without fear or favour and in accordance with their constitutional and statutory duties. I am therefore, astounded that this officer saw fit to give evidence for the applicant in this case.

9. If anything, he should have given evidence for the State in relation to what measures he has put in place to ensure that the applicant's safety and security is protected from threats of personal violence. He should have also given evidence of the CIS officers tasked to provide extra protection to avert any threat of violence to the personal safety of the applicant and more importantly, what disciplinary actions he has taken or will be taking against those alleged perpetrators. I mean, the CIS facilities should be the best place for remandees to be at peace and safe from threats and harassments while awaiting trial, and CIS officers who are alleged to have abused remandees should be disciplined by their superiors.

10. I should also state here, in case the CIS officers do not know, by law, a CIS facility is a place considered safe and secured for human habitation for remandees and prisoners. This is implicit in the preamble of the Correctional Service Act, 1995 which states, "Being an Act to (d) provide for the custody, status, care, welfare and discipline of detainees" and section 7(1)(b) which expressly states "The function of the Service are to provide secure, efficient and humane facilities......" Not the other way around. For the foregoing reasons, I find the affidavit of Chief Superintendant Simon Sobaim self serving and unreliable. I reject it.

11. This leaves only the evidence of the applicant to consider. Whilst I appreciate his assistance in the investigations in relation to the mass break out and identification of CIS officers allegedly involved in it, and such information may be crucial to the State's case for obtaining a successful prosecution against those perpetrators, first, I am not persuaded that it is a sufficient reason to grant bail. I have not been referred to any law or case authority to persuade me to accept that persons accused of committing crimes who give information to police in the investigations that may lead to arrests and prosecutions of other persons is a sufficient reason to grant bail.

12. Secondly, I have not been referred to any law or case authority to support the applicant's submission that bail may be granted in circumstances where an applicant who gives information to police in their investigations that may lead to further arrests and prosecution of other persons and his life is under threat is a ground for bail. I am therefore, not satisfied that it is a ground for bail. Bail is refused for these reasons.

13. Even if I am wrong on this last ground, and it is said that, threats to the personal safety of an applicant by CIS officers following revelation of identities of the alleged perpetrators in investigations into mass jail break out is a sufficient reason for grant of bail, there is insufficient evidence before me to establish threats to the personal safety of the applicant in this instance. In my view, the applicant does not state in his affidavit when he was threatened, assaulted or harassed, how many times he was threatened, assaulted or harassed, nature of the threats and assaults, where he was threatened, assaulted or harassed and very importantly, who threatened, assaulted or harassed him. It seemed his claim of threats is based on an assumption and pure speculation. I am therefore not satisfied that the applicant has been threatened, assaulted or harassed by CIS officers. He has failed to make out a case for grant of bail on this ground and it is refused.

14. I return to his counsel's brief submissions on the considerations under section 9(1) of the Bail Act, Ch 340. I consider that even though I have refused bail on the two grounds advanced by the applicant, it is still open to me to consider whether he is a suitable candidate for bail under section 9(1) of the Bail Act, Ch 340. In other words, is he not disqualified for bail by the considerations listed in section 9(1) of the Bail Act, Ch 340?

15. The allegations in the statement of facts annexed to his affidavit are these: on 22nd April 2009 at about 2 o'clock in the morning, he was with a relative, the victim and another female in a room at Yumi Yet Guest haus. He got excited and attempted to harass the victim and the other female companion. They became apprehensive and tried to leave the room. He went after them and pulled the victim back into the room while the other escaped. He threw her on the bed, removed her laplap and underpants and pushed his hand (fingers) into her vagina. She felt pain but managed to remove his hand and called out for help. People heard and came to her rescue.

16. I must make it clear that I am not deciding the guilt of the applicant at this stage. I am only considering whether he is a suitable candidate for bail and on that premise, from these allegations, first it is obvious that there is presence of violence to a person because it is alleged that the applicant forcefully held the victim against her will and secondly, raped her by inserting his hand or fingers into her vagina. He is therefore disqualified by section 9(1)(c)(i)&(ii). Secondly, there is no evidence from the applicant that no threats have been or will be made to the State witnesses including the victim if he is released on bail. In the absence of such evidence, the applicant has not established to my satisfaction that there has been or will be no threats made to the State witnesses including the victim. He is therefore disqualified by section 9(1)(f).

17. Finally, there is no evidence from the applicant in relation to whether he will be safe if he is released from custody. At least some evidence of a peace ceremony held between him and his line and the alleged victim and her line, as is the usual customary practice in the Highlands to broker peace between two conflicting parties is not too much to ask of him. Such evidence would assure me that all will be well for him when he is released from custody and await his trial to further strengthen his case. Again, in the absence of such evidence, he has not established to my satisfaction that he will be safe outside Baisu CIS. It is therefore necessary for his own protection and safety that he be held in custody under section 9(1)(e).

18. In the end, I have reached the conclusion that the applicant is also not a suitable candidate for bail under section 9(1) of the Bail Act, Ch 340. Bail is therefore refused.

Ruling accordingly.

_________________________________________
Paul Paraka Lawyers: Lawyers for the Applicant
Acting Public Prosecutor: Lawyers for the State