N7739

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 1333 OF 2017

THE STATE

V

JACK PIPILAK

Kimbe: Miviri J
2019: 08th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail – application –State – Section 21 (2) (b) Bail Act – revocation of Bail – affidavit violence breach of peace police barracks – respondent affidavit filed – denial no consumption of alcohol – admission swearing – noise breach of peace – consumption of alcohol – breach of peace – breach of orders bail – application granted – bail revoked – remanded – guarantors ordered to pay surety.
Facts
State moved to revoke the bail of the respondent on basis that he had breached condition set breaching peace.

Held
Application made out on material filed
Bail Revoked 
Sum paid as sureties forfeited to the State
Remanded forthwith.

Counsel:

E. Kave, for the State
D. Kari, for the Respondent

RULING
08th March, 2019
1.	MIVIRI J: 		This is the Ruling on the State’s Application pursuant to Section 21 (2) (a) of the Bail Act by Notice of Motion dated and filed the 04th March,  2019 for revocation of the bail of the Respondent granted by this court on the 26th May, 2017.

2.	Section 21 (2) (a) basically empowers this court based upon reasonable grounds to revoke the bail granted discharging the person from obligations of bail and committing the person to a place of confinement. Reasonable grounds are a question of fact invoking the discretion of the court. Bail is not outright but is based upon conditions imposed by the court and in this instance there is allegation of breach of peace a condition precedent that was issued by this court. 

3.	Coupled with that, the State further seeks forfeiture of the bail surety of K1000 to the State, the guarantors Andrew Arua’s and Pastor Willie Peter’s pledges each individually of K500 as guarantors be paid forthwith to the State under section 19 (7) (b) of the Bail Act.

4.	Section 19 (7) (b) empowers this court to order the guarantor to pay the surety pledged under that law should the conditions or a condition set for bail are breached. Here it is pleaded that that has happened here by the affidavit material and therefore the guarantors because of the breach by the respondent be ordered to pay.
Short Facts
5.	The facts upon which the motion and application sits is the affidavit of Alexander Isouve dated and filed the 04th March 2019. He is the informant in the criminal charge laid against the respondent of wilful murder. And is a Detective Senior Constable of Police 2IC or second in charge of the criminal investigations Branch, Kimbe.

6.	He deposes that the respondent was seen on Friday the 1st February 2019 at section 15 Police Single Barracks under influence of liquor in the early hours of the morning. And was reported to be using insulting words against one Germaine Rangit who is a policeman with the Public Safety of the Kimbe Police Station holding the rank of probationary Constable for three years.

7.	This witness also has deposed an affidavit dated the 4th March 2019 filed on that day confirming that, “…I was awoken by the footsteps of Policewoman Yvonne Kumasi on the veranda. That a few seconds passed and I heard Constable Jack Pipilak who was so drunk said to Policewoman Kumasi, Go na Slip ya. Policewoman Kumasi replied and said, “How bai mipela silip time yupela wok long mekim planti noise ya, em barracks blong Tolai ya. Constable Pipilak then shouted towards her and said, Kan yupla bai yupla mekim wanem? And kept on repeating himself with the same swear words.

I came out on the veranda and saw the drunken police Constable Pipilak went into the kitchen and then heard a loud noise in the kitchen in which he damaged the kitchen utensils belonging to Police Constable Ian Homine and Probationary Constable Maxwell Mahuvu. 

I walked towards the kitchen and saw the properties all lying on the kitchen floor and saw that Constable Pipilak’s hand was bleeding. He then walked over to Constable Hillary Someri’s small kitchen and damaged all his properties, then kicked a red bucket toward his and Policewoman Kumasi’s room, smashed a container on our second step and walked toward the kitchen area and down the first step and onto the ground where his drunkard mates were. He then said dispel circuit breaker ya blong mi ya mi baim and went up into the kitchen with an iron rod and damaged the circuit breaker and the whole barracks came to a complete black out.”

8.	Particularly paragraph 12 and 13 of this affidavit depicts swearing and assault and injury of the deponent at the hands of the respondent. It also shows the drunken status of the respondent observed by this witness.

Respondent’s affidavit

9.	Respondent has filed in response an affidavit dated the 8th March 2018. In fact he has through counsel requested time to respond and so that was done this morning allowing completion of his affidavit and filing. 

10.	He recalls Friday 1st February 2019 and had played pokies won some money and bought drinks for his friends that he never ever drank as contended in the affidavit of the Complainant and the State. He only provided music and was singing and says in so doing disturbed the peace within the community. He says that the policewoman Germaine Rangit has some problems with them married couple living at the barracks and uttered obscenities at the Police Station for which he responded to on that night. That he swore at her in response and was provoked to.

Issue

11.	Whether or not there have been reasonable grounds made out that in all the circumstances the respondent’s bail be revoked?

Observation

12.	Since the service of this motion upon the respondent on the 4th March 2019 he has not responded and has waited until the eve of the moving of the motion and has filed an affidavit that has not been properly sealed dated at the registry. The affidavit has been handed up with leave of the court from the bar table. State has not objected to its tender. It reflects upon the respondent that he would not wait as he did here if indeed he was not doing what is alleged against him. It does not mean that what the State says is the truth. It will be weighed out and given due consideration.

13.	He has not challenged the affidavit that has been filed and its veracity nor has he disputed his whereabouts on that night as contended by the complainant and the State. He places himself at the scene and acknowledges that indeed he swore at Germaine Rangit because of a dispute amongst them. If he was not effected by alcohol as contended by the state he would not have behaved as is set out by the evidence of the arresting officer Alexander Isouve and that of Germaine Rangit. He corroborates her in the argument and the swearing but not the assault which he leaves out. He also agrees that his friends were drinking as set out by this witness. And there was disturbance and noise as set out by this witness. He does not challenge in material what he did to the kitchen and the barracks circuit breaker. 

14.	Which means this evidence stands un-contradicted. It is evidence of breach of peace and disorder set out in the affidavit of Germaine Rangit that he has corroborated in all material particulars of the assertions that are made by the state. That there was breach of the order to keep the peace and be of good behaviour at all times during the course of bail. The annexure “B” the bail certificate of the respondent in the affidavit of Alexander Isouve is clear of the conditions imposed upon the respondent and guarantors named.

Ruling

15.	In my view there has been established by this reasonable grounds by this affidavit materials that there has been breach of the conditions of bail imposed upon the Respondent he has breached condition 3, that you shall keep the peace and be of good behaviour at all times whilst on bail until the disposal of the applicants matter accordingly to law. 

16.	Materially and substantially Respondent agrees with Germaine Rangit he swore at her and it is established un-contradicted that he indeed acted as described by this witness. By itself I find there was a breach of peace in the way described by this witness. I further find that the respondent was drunk and behaved in the way described. 

17.	I am satisfied on the material presented that the application by motion meets the burden required. I grant the motion in the terms sought. That pursuant to section 21 (2) (a) of the Bail Act the respondents bail is revoked forthwith. His surety of K1000 is forfeited forthwith to the State under section 22 (1) of the Bail Act pursuant to the findings above.

18.	I further order that by Section 19 (7) (b) of the Bail Act the guarantors Andrew Arua and Pastor Willie Peter’s pledges each individually of K500 as guarantors be paid forthwith to the State. And those receipts of payment are filed with the National Court Registry by or before Monday 18th March 2019. The State is granted liberty to move should no payment be received by both guarantors.

19.	Remand warrant will be issued for the immediate remand of the respondent forthwith. 

Orders accordingly.

Public Prosecutor:  	Lawyer for the State	
Public Solicitor   : 		Lawyer for the Defendant