Pang v State [2022] PGNC 81; N9472 (8 March 2022)

N9472

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA 88 OF 2022
JAMIE DAVID PANG

V

THE STATE

Waigani: Wawun-Kuvi, AJ
2022: 7^th & 8^th March

CRIMINAL LAW – Bail – Applicant charged with Rape, under s.347(1) of the Criminal Code and Disobedience of a Migration Obligation under section 16(1)(d) of of the Migration Act – Exceptional circumstances not established – Application refused.

Cases Cited:
Undah v The State (2016) N6574
Paul Mupe v The State (2012) N4754
Yausase v The State (2011) SC1112
Re Bail Application by Hombi [2010] PGNC 84; N4080
Fred Keating v The State [1983] PNGLR 133

Legislation:
Bail Act 1977(Ch 340)
Criminal Code (Ch 262)
Migration Act (Ch 16)

Constitutional Law
The Constitution

Counsel:

Mr J Gubon, for the Applicant
Mr G Sheppard, for the Respondent

DECISION ON BAIL APPLICATION

8^th March, 2022

1. WAWUN-KUVI, AJ: This is an application pursuant to sections 6 and 13(1) of the Bail Act 1977 and 42 (6) Constitution.
   
2. The Applicant applied to the District Court for bail and was refused. He now applies to the National Court pursuant to section 13 (1) of the Bail Act.
   
3. The applicant is charged with one count of Rape contrary to section 347(1) of the Criminal Code and one count of Disobedience of a Migration obligation under section 16(1) (d) of the Migration Act (Ch 18).
   
4. The State opposes bail.
   
5. It is well established in this jurisdiction that where a person is charged for an offence other than wilful murder and treason, there is a presumption of bail.
   
6. Where the State opposes bail, it must show that there exists one or more consideration under section 9 of the Bail Act. However, even if one or more of the considerations are present, the Court may in the exercise of its discretion still grant bail. In such a circumstance, the applicant is required to show that exceptional circumstance make his continued detention unjustified: Fred Keating [1983] PNGLR 133 and Yausase v The State (2011) SC 1112.
   
7. In determining this bail application, I am reminded that the Court is not bound by technical rules of evidence and may act of such information available to it: Fred Keating v The State [1983]^[1]
   
8. The State has submitted there are considerations under section 9 (1) (c) (i). The charge of rape consists of a serious assault. This is not disputed by the Applicant.
9. I also find that there are considerations under section 9 (1) (c) (iii). The applicant was charged, although with a migration offence, with an offence that involves having or possessing a firearm.
   
10. As I am satisfied that there exist considerations under section 9 of the Bail Act, the applicant must establish that there are present in his case, exceptional circumstance that make his continued detention unjustified.
    
11. The applicant sets out his grounds for bail at paragraph 10-12 and 14- 19 of his affidavit sworn on 25 February 2022.
    

Family Welfare

12. The applicant submits that his prolonged incarceration would be detrimental to his family. There is no evidence presented before the Court. The applicant does not depose in his affidavit that his family will suffer hardship because of his incarceration. He only states at paragraph 17 that he is employed by the Sanctuary Hotel and Resort and his family lives with him. In any event, the case of re Bail Application by Hombi [2010] PGNC 84; N4080, cited by the applicant’s counsel, is one of the mostly commonly cited cases in reference to family considerations. In re Bail Application by Hombi [2010]^[2], Kirriwom J held that family situations do not justify the release on bail. Family suffering are consequences of being arrested and detained for an offence and do not form a ground for bail.
    
13. In Applicant by Hombi[2010]^[3], the applicant was charged with Rape and Abduction. In refusing bail, Kirriwom J stated that bail was refused primarily because the offence consisted of a serious assault. In Paul Mupe v The State (2012) N4754, also referred to by counsel for the applicant, bail was refused because of the consideration under section 9(1) (c) (i). The Applicant in that case was also charged with rape.
    
14. Counsel for the Applicant also refers the Court to the case of Undah v The State (2016) N6574 where the applicant also argued family welfare. Ipang J, in referring to Benson Titus v The State [2001] N2043, Maru and Oa v The State [2001] N2045 concluded that family welfare should not form the basis to grant bail. Bail was refused.

Employment

15. The Applicant in his affidavit simply states that he is employed.
    
16. Employment was considered in the cases of Application by Hombi [2010] and Undah v The State. In those cases, the Court found that employment was not a ground for bail. Kirriwom J in Application by Hombi stated:
    

“Having a steady and full-time employment has been considered as supportive of a person's bail. But it has never been accepted as a good ground for bail except in very rare circumstances where public interest demanded it.....”

25. The misfortune of losing one's job if he was detained relative to these allegations is not a consideration for bail. It also raises another public interest question. A person who valued his integrity and his profession or job must not by his own deliberate conduct place himself in any conflict where such of his personal values are exposed to risks of being compromised.”

Medical Condition

17. In paragraph 10 of the Applicant’s affidavit, he deposes that on 23 January 2022 he underwent surgery to have his appendix removed and he is still recovering. He attaches his medical bill and receipts in annexure marked as “JDP-3”.
    
18. Counsel for the applicant submits that the applicant’s condition requires management and medication. There is no evidence before the Court to support this contention. If the applicant relies on medical grounds for bail, the applicant must provide proper medical evidence and that evidence must be current. Whilst the strict rules of evidence do not apply, the Court must be presented with evidence by a medical doctor as to factors such as diagnosis, treatment, and seriousness of the illness.
    
19. As it is, there is very little before the Court in support of this ground.
    

Other grounds raised by the Applicant

20. The Applicant deposes at paragraph 11 of his affidavit that he was denied access to see him lawyer.
21. In Yausase v State [2011] PGSC 15; SC1112, the Supreme Court stated at paragraph 9, stated:
    

“9. We agree with the views of Kariko J in the National Court that the normal practice of the Correctional Service is to allow remandees to have access to their lawyer for the purposes of preparing their defence. There is no evidence to suggest that that practice is not being adhered to in the applicant's case. If the applicant is refused reasonable access to his lawyer he would be able to make an application to the National Court for enforcement of his human rights, one of which is conferred by Section 42(2)(c) of the Constitution: a person who is detained "shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained".

22. This is not such a case where the applicant has been refused his right to see a lawyer. The Applicant at paragraph 12 confirms that he had spoken to his lawyers.
    
23. Further factors such as the applicant not being a flight risk and that his passport has been surrendered to the District Court are not grounds for bail.
    
24. In relation to his previous case where he complied with bail conditions. The applicant does not state the nature of the charges and the date and time he was charged and acquitted. And more importantly drawing a comparison between those charges and the present case. I do accept that this forms a basis for granting bail.
    
25. Having regard to the matters stated, it is my view that none of the matters raised, alone or in combination, constitute an exceptional basis on which bail can be grant bail.
    
26. The application is refused.
    
27. In passing, this application was made pursuant section 13(1) of the Bail Act because the application for bail at the District Court was refused. The Applicant is charged with Rape. The District Court did not have jurisdiction to determine the bail. Section 4 (1) (b) of the Bail Act is clear. Only the National and Supreme Court have jurisdiction: see also re Bail Application by Hombi [2010] PGNC 84; N4080 (20 July 2010).
    

Orders

28. The Order of the Court is:
    1. The Application for bail is refused.

________________________________________________________________
Young and Williams Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State

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^[1]supra
^[2] [2010] PGNC 84; N4080 at paragraph 26
^[3] supra