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State v Tarukal [2020] PGNC 320; N8532 (25 June 2020)

N8532

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 360 OF 2020

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

BETWEEN
THE STATE

AND
PHILIP TARUKAL

Kokopo: Suelip AJ
2020: 12^th & 25^th June

CRIMINAL LAW - Bail application - applicant charged for persistent abuse of a child - applicant and victim are first cousins - bail application pursuant to s.42(6) of the Constitution ands. 4 and 6 of Bail Act- bail discretionary bail should not be ref used except on certain grounds pursuant to s. 9 Bail Act.

Cases Cited:

Kunumb v The State [2009 J PGNC 269, N4207
Michael Aiav. The State [2001] PGNC 116; N2124
Re: Fred Keating [1983] PNGLR 133.
Re: Kou Duo [1984] PNGLR 22.
Samuel Arnold and Amon Ka/ex v The State [2010] PGNC 249, N4039
The State v. Phil Undaba [2010] PGNC 95; N3990

Legislation and other materials cited:

Section to Section 42(6) of the Constitution Section 229D(l) of the Criminal Code.
Sections 4, 6, 7(b), 9(l)(c)(ii) and 9(l)(f) of the Bail Act

Counsel

Mr. Katosingkalara, for the Applicant
Mr Rangan, for the State

RULING ON BAIL APPLICATION

25^th June, 2020

1. SUELIP AJ: The applicant filed an application for bail pursuant to s.42(6) of the Constitution and Section 4 and 6 of the Bail Act.

Charge

2. The applicant is charged for persistent sexual abuse of a child, a female aged 13 years old, thereby contravening s229D(1) of the Criminal Code. He was charged on 30 October 2018 and has been committed to stand trial. He appears from custody.

Facts

3. In the Summary of Facts, it is alleged that between 22 September and 3
October 2018, in the absence of the defendant's mother, who was the aunt and guardian of the victim, the defendant sexually abused the victim and on three occasions, defendant managed to sexually penetrate the victim. The defendant is the first cousin of the victim. The defendant's mother, Maria and victim's father, Michael are biological brother and sister. The defendant's mother (Maria) took care of the victim since she was little when her parents got separated and left her alone. The victim lives with disabilities and grew up with the defendant's family.

Issue

4. Whether or not the applicant should be granted bail?

Applicant's bail application

5. The applicant's Bail Application and Notice of Motion applying for bail, both filed 4 June 2020 is supported by his two affidavits and the two affidavits of his guarantors.

6. The applicant's affidavits in support of his application gives a background of his age and family which comprise of his wife, 2 children, 6 siblings and an old aged mother. He says he is a chainsaw operator and operates his business entity of ripping timbers at home until he was arrested. His reasons for asking the Court to grant him bail include that he is a first-time offender and has no prior conviction. He denies the allegation laid against him and he wants to be out on bail so that he can properly prepare his defence to prove his innocence in trial. He adds that his children who are 7 and 1 years old respectively, together with his wife all need his fatherly care and support at home and since he is eldest son in his family, his mother and sisters need his support and care. He also says that he has clients who have paid him to rip their timbers, which he is yet to do. He says his business of ripping timbers sustains the financial needs of his own family and that of his sister's family. He says that he is not a threat to the community where his is from and he is also not a threat to the victim. He says that after the complaint in the substantive matter was laid to the police, he did not escape or evade police, but waited for police at home until he was apprehended. He says he has one hectare of young cocoa and coconut trees and needs to clean them because if they are left unattended in the bushes, they risk dying. He concluded that should this Honourable Court grant him bail, he will live with his wife and children in their home at Watwat Ward, Bitapaka LLG; Kokopo District. He is prepared to pay Kl000.00 bail fee and he promises to comply with other bail conditions.

7. In his guarantors' affidavit of Don Mirargai and Camillus Tape, both know the applicant personally. The former is a distant nephew and the latter a resident of Watwat Ward in the Bitapaka LLG of Kokopo. Further, the former is a Youth Representative for Tapo Catholic Parish for 15 years whilst the latter was once a former ward member from 2006 to 2019, for 2 terms. The first guarantor says the applicant was initially of Catholic faith but is now converted to Seventh Day Adventist. The second guarantor says the applicant is a good person and runs his chain saw business and helps pay for his nieces and nephews school fees. Both are in support of the applicant's application and both will ensure that he complies with bail conditions with each pledging to pay K 100 - K200 surety.

8. The applicant submitted that he is mindful that Don Mirragai is related to him but the fact that the nominated guarantor is an elder person in the applicant's community and the applicant respects him is sufficient to approve him as one of his guarantors. The applicant relies on Kunumb v The State N4207 where Sagu AJ (as she was then) held that where some family members posses reputable status and character and whom the community have high regard for can become safe and secure guarantors as it imposes a greater degree of obligation and respect on the part of the applicant to answer to bail.

9. The applicant further submitted that the granting of bail is a discretionary matter. He says the Court should consider that he is a young person of 29 years of age and has a young family and his siblings to take care of. He also has the sawmill business and the cocoa and coconut trees to attend to.

10. He says the prison at Kerevat is overcrowded, and it is in the interest of justice that he is released on bail pending prosecution of the charge which he denies wholly. This is on the presumption of innocence until proven guilty.

11. The applicant says at the end of his submission that since he was charged on 30 October 2018, he spent all this time in prison and because there is only one judge available to hear all the cases at the moment, the chances of having his case heard sooner is slim.

State's position

12. The State opposes the bail application pursuant s. 9(l)(c)(ii) ands. 9(l)(f) of the Bail Act. These sections are reproduced hereunder:

9. Bail not to be refused except on certain grounds.

(1) Where a bail authority is considering a question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:-

( c) that the alleged act or any of the alleged acts constituting the

offence in respect of which the person is in custody consists or consist of -

(ii) a threat of violence to another person; or

(f) that the person is likely to interfere with witnesses or the person

who instituted the proceedings; or

13. The State submitted that the alleged act constituting the offence by the applicant consist of a threat of violence to another person. The Summary of Facts show that the victim was looked after by the applicant's family and during that time, the victim was subjected to threats of violence where the applicant threatened to kill the victim. The State says the applicant was in fact raping his first cousin on those three different occasions thus, using violence.

14. The State further submitted that the applicant is likely to interfere with the victim. The State says since the commission of the offence by the applicant, the victim has been moved away from the applicant's family to the adjoining Ganai Ward, which is easily accessible to the applicant. If the applicant is released on bail, he cannot be trusted and can directly or indirectly interfere with the victim.

15. The State rebutted the applicant's submission that the applicant can prepare his defence properly if he is granted bail. The State says the applicant's denial of the allegation is the subject of a trial and cannot be taken into account at this stage.

16. The State further objected to the guarantor, Don Mirargai on the basis that the guarantor is not a suitable person as he is related to the applicant and therefore, the guarantor is biased in supporting the applicant's application for bail. This is evident in the case of Samuel Arnold and Amon Ka/ex v. The State [2010] PGNC 249, N4039 where Kawi J refused to approve the nominated guarantors as they were all related to the applicants and therefore, bail was refused.

17. The State further submitted that if the Court is mindful to grant bail to the applicant, the applicant can report directly to the ward recorder and attend at call overs as and when required because of the remoteness of the applicant's ward. The State finally submitted that the guarantor, Camillus Tape pay the sum of K300 as surety under s. 7(b) of the Bail Act.

Law

18. Section 42 (6) of the Constitution provide as follows:

A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

19. Sections 4 and 6 of the Bail Act provide:

4. Bail only by National or Supreme Court in certain cases.

A person charged with wilful murder, murder or an offence punishable by death shall not be granted bail except by National Court or the Supreme Court.

6. Application for bail may be made at any time.
   

(1) An application for bail may be made to a court at any time after a person has been arrested or detained or at any stage of a proceeding.

(2) A court shall consider an application for bail at the time it is made unless it is satisfied that no steps that were reasonable in the circumstances have been taken to advise the informant that the application would be made.

(3) Subject to Section 4, the court shall grant or refuse bail in accordance with Section 9.

20. It is clear from these provisions that an application for bail may be made to a Court at any stage of the proceedings. As bail is a right, it should not be refused unless at least one of the considerations under s.9 of the Bail Act is present. Even if one or more of the considerations exist, the court still has a discretion whether to grant bail or not, the onus being on the applicant to show why his detention in custody is not justified. See Re: Fred Keating [1983] PNGLR 133 and Re: Kou Duo [1984] PNGLR 22.

21. In the case of Michael Aia v. The State [2001] PGNC 116; N2124 (21 September 2001), the late Davani, J gave some examples of what would amount to exceptional circumstances where an applicant is charged for wilful murder and applied for bail. They were first, the adverse effect or prejudice to the applicant's defence due to prolonged detention, secondly, the prejudice to the applicant's social activities, thirdly the prejudice to the welfare of the applicant and family and finally, the prejudice to the employment and business welfare of the applicant.

22. In The State v. Phil Undaba [2010] PGNC 95; N3990 (15 March 2010), Makail J, in differing from the views expressed by Davani J in Jin Michael Aia (supra) expressed that prejudice to the welfare of an applicant's family is not an exceptional circumstance or ground upon which the Court may grant bail where an applicant is charged with wilful murder.

Application of facts to the law

23. The applicant is charged for persistent sexual abuse hence, the applicant can apply for bail pursuant to s.42(6) of the Constitution as of right subject to considerations under s.9 of the Bail Act.

24. The applicant is a 29-year-old man and has a young family. He is the eldest son in his family and runs a sawmill which provides for his family and siblings and their families. He also has a hectare of young cocoa and coconut trees which requires his attention to clean. He has an old aged mother and therefore has family responsibilities.

25. He is of good character and has converted to the Seventh Day Adventist faith. His appearance in Court is of a clean and attentive person.

26. The applicant's counsel pleaded that consideration be given to his client for bail because Kerevat jail is overcrowded.

27. On the other hand, the victim is living in the adjoining ward which is· easily accessible to the applicant. There is a likelihood of the applicant interfering with the victim or the witnesses. After all, both are from the same family. There is also the possibility of the victim being subjected to violence again from the applicant.

28. The mere fact that the applicant denies the charge does not support his application for bail as this is a matter for trial proper.

29. As to the issue raised by the State not to approve Don Mirargai as a guarantor because he is a distant uncle, he is a person of high regard in the community as he was a Youth Representative for Tapo Catholic Parish for 15 years.

30. The reference to the issue on "interest of justice" is not to be considered only in favour of the applicant but also the interests of the society to see offenders are dealt with promptly and effectively according to the law.

Conclusion

31. Having considered all that has been presented by the applicant and the response by the State, I have taken into account that the offence alleged to have been committed by the applicant does not bar the applicant's right to apply for bail. He was not charged with wilful murder, murder or an offence punishable by death.

32. In considering the submission by the State that the applicant is likely to interfere with the victim despite the victim living away from the applicant's family to the adjoining Ganai Ward, which is easily accessible to the applicant, I am of the view that this may not be likely because the applicant's family and community are now conscious of the applicant and the allegations against him, and it will be difficult for the applicant to have any direct interaction with the victim. It is also on this basis that is unlikely that if the applicant is released on bail, he will cause more threats of violence to the victim.

33. I am also comforted by the fact that the applicant is a converted Seventh Day Adventist and his faith should restrict or detain him from committing the same offence or any other offence again, or not complying with conditions attached to his bail.

34. The overcrowding at Kerevat is a pressing concern for the Correctional Services and for this Court, sitting as a lone judge.

35. I accept both Don Mirrargai and Camilus Tape as approved guarantors as they both are of reputable status despite the former being a distant uncle.

36. In conclusion I make the following orders.

Orders

(1) Bail is granted to the applicant for the sum of Kl,000.00.

(2) Both Don Mirrargai and Camillus Tape are approved as guarantors and they shall each pledge K500.00 as cash surety, which sums shall be levied against them in the event that the Applicant fails to comply with any conditions of his bail.

(3) The applicant shall report to the National Court Registry at Kokopo fortnightly on Fridays any time between 9:30am and 3 :30pm.

(4) The applicant does not interfere with the victim or any witnesses whose name appears in the committal depositions.

(5) The applicant does not commit any other offence.

(6) The applicant does not live elsewhere except in his family home with his wife and children.

(7) The applicant does not leave the province unless he seeks permission from the Court.

(8) The Applicant shall appear at every call over of the National Court at Kokopo and at such other times as required by the Court.

_______________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State