Paki v Independent State of Papua New Guinea [2018] PGSC 101; SC1774 (22 June 2018)

SC1774

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC NO. 10 OF 2018

BETWEEN
BRUCE JEFFERSON PAKI
Applicant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Dingake J
2018: 6^th June

SUPREME COURT – Application pursuant to Sections 42(6) of the Constitution and Sections 6 and 13(2) and (4) of the Bail Act – held detention of the applicant not in the interest of justice – bail granted.

Cases Cited:

Felix Kange v The State (2016) SC1530

Counsel:

Mr. David Sopane, for Applicant
Ms. Dusava, for Respondent

22^nd June, 2018

1. DINGAKE J: This is an application made pursuant to Section 42(6) of the Constitution of the Independent of State of Papua New Guinea and Sections 6 and 13(2) and (4) of the Bail Act.
2. The Applicant was charged with the offence of sexual penetration pursuant to Section 347(1) of the Criminal Code Chapter No. 263.
3. The State alleges that on the 18^th of October, 2014, while the alleged victim was sick from overdosing herself with panadol tablets and alcohol the previous night, the Applicant sexually penetrated her without her consent.
4. The application for bail dated the 31^st day of May, 2016, was filed with this Court on the same day.
5. The evidence in support of this application consists of:
   • 3.1 Affidavit in Support deposed to and sworn by the Applicant on the 31^st of May, 2018 and filed on the same day;
   • 3.2 Affidavit of Guarantor deposed to and sworn by Pr.George Paki on 31^st May, 2018 and filed on the same day; and
   • 3.3 Affidavit of Guarantor deposed to and sworn by Mark Paki on 31^st May, 2018 and filed on the same day.
6. The Applicant was arrested on the 12^th of May, 2016, charged and detained at Boroko Police Station cells for alleged offence of sexual penetration.
7. He was granted bail by the Police on the same day following payment of a bail fee of K2,000.00.
8. The Applicant avers that the only bail condition was that he must attend Court when required. He avers that he complied with that requirement faithfully up to the date of his committal on the 10^th of October, 2016.
9. On the 10^th of October, 2016, during committal, the Applicant was advised by the Committal Court to attend Court on 24^th October, 2016.
10. He avers that although he attended, and owing to the absence of his lawyer on that date, compounded by his unfamiliarity with the Waigani National and Supreme Court premises, he missed attending the first mention as required.
11. On the 16^th of August, 2017, the National Court revoked his bail and the Applicant was detained at the Boroko Police Cells. It would seem that the warrant of his arrest that was issued or obtained on the 16^th of August, 2017 was effected on the 20^th of March, 2018.
12. On the 29^th of March, 2018, the Applicant made an unsuccessful application to have his bail reinstated before by the National Court (per Manuhu J).
13. On the 30^th of March, 2018, the Applicant upon fresh application by his lawyers was granted bail by the National Court (per Salika DCJ) and the bail fee of K2,000.00 was reinstated.
14. On the 20^th of April, 2018, the National Court (per Manuhu J) reviewed and revoked the Applicant’s bail.
15. The Applicant avers that the bail was recalled without affording him a hearing. Following the revocation of the bail, the Applicant was arrested. He avers that the reason for the revocation was that he had failed to appear in Court, although he was not notified.
16. The Applicant avers he is not a flight risk and that if granted bail he will abide by the bail conditions.
17. He has also attached a purported email from the alleged victim that seems to exonerate him of the offence. There is no affidavit from the alleged victim confirming that she is the author of the email referred to above.
18. The application for bail is opposed by the Respondent.
19. The Respondent did not file any affidavits in opposition but submitted that the Applicant was ill-suited for bail because as per the provisions of Section 9(1) c(i) the alleged acts by the Applicant consist of a serious assault.
20. In terms of Section 42(6) of the Constitution, a person arrested or detained for an offence (other than treason or wilful murder) as defined by an Act of Parliament is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise requires (Felix Kange v The State (2016) SC1530).
21. Section 9(1) of the Bail Act permits the Court to refuse bail if any of the circumstances or a combination of circumstances and or factors listed in Section 9(1) exists, which include that the alleged act or any alleged acts constituting the offence in respect of which the person is in custody consists or consist of “a serious assault”.
22. Section 9(2) of the Bail Act provides that in considering a matter under Section 9, a Court is not bound to apply technical rules of evidence but may act on such information available to it.
23. I have considered the combined effect of Section 42(6) of the Constitution and Section 9(1) of the Bail Act; and in doing so I cannot pay lip service to the emphatic Constitutional injunction that: “a person arrested or detained for an office is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice so required.” (emphasise mine)
24. On the evidence before me there is nothing to suggest that the interests of justice require that the applicant be denied bail.
25. On the uncontested evidence of the Applicant, I do not think his detention in the face of the Constitutional injunction in Section 42(6) of the Constitution is justified. On the uncontested evidence of the Applicant, that he is not a flight risk, that he has not, without justification, breached any conditions of bail, it is clear to me that his continued detention would be contrary to the interest of justice.
26. The Applicant avers that the allegations against him are a fabrication. He has attached a purported email from the alleged victim, which may not pass muster on the strict application of technical rules of evidence. However, the Court is enjoined by Section 9(2) of the Bail Act not to apply technical rules of evidence, in considering any matter before it but may act on such information as is available to it.
27. On the face of the Applicant’s averment that the allegations against him are a fabrication, this tends to dilute the significance of Section 9(1) c(i) of the Bail Act – or may suggest the contrary.
28. On a consideration of the totality of all the circumstances of this case, the contested evidence of the Applicant, the combined effect of Section 42(6) of the Constitution and Section 9(1) c(i) of the Bail Act, I am satisfied that the continued detention of the Applicant is not in the interest of justice.
29. In the result it is ordered that:
    1. Bail is granted;
    2. K2,000.00 police bail is reinstated;
    3. The Applicant to appear in Court whenever notified without fail;
    4. The Applicant to report at Waigani National Court Registry every Monday between 9:30am and 3:30pm of every month;
    5. The Applicant shall not leave NCD without leave of the Court;
    6. The Applicant shall not interfere with any State witnesses under any circumstances;
    7. Applicant’s guarantors to pay K500.00 each should applicant breach his bail conditions;
    8. The Applicant is to be released from custody forthwith.
       

___________________________________________________________
Kandawalyn Lawyers: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondents