DC8038
Papua New Guinea
 
[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION
 
COM 304 OF 2022
CB NO 444 OF 2022
 
BETWEEN:
 
RACHAEL PINDA
[Informant]
 
AND:
 
JAMIE PENG
[Defendant]
 
Waigani: Paul Puri Nii
 
24th February 2022
 
COMMITTAL PROCEEDINGS: -Charge- Sexual Penetration -Section 347 of the Criminal Code Act. Application for Bail-Guarantors Affidavit-Notion of motion and Affidavit with the Defendant’s reason for bail.
 
PRACTICE AND PROCESS: Application for Ball under the Bail Act and Constitution –Summary of facts containing Aggravated assault- Application for Bail not in the interest of Justice-Application for bail refused.
 
PNG Cases cited:
 
Nil
 
Overseas Cases cited:
Nil
 
References
 
Legislation
 
Nil
 
Counsels

Police Prosecutor:                        Chris Iga                           For the Informant
Young and Williams Lawyers:       Philip Tabuchi                    For the Defendant

DECISSION ON BAIL APPLICATION

24th February 2022
 
INTRODUCTION

NII, P. Paul Magistrate. This is a bail application filed pursuant to Section 6(2) of the Bail Act and Section 42(6) of the Constitution to dispense with the requirement of service and Section 3 and 6 of the Bail Act and Section 42(6) of the Constitution to grant bail to the Applicant/Defendant. The Application for bail is supported by the Affidavits of the accused filed dated 21st February 2022 and two (2) guarantors namely James Pang and Hillary Wong filed on 21st February 2022.
 
FACTS
 
1.	Defendant is aged 43 years and from Sydney in Australian who was alleged to have sexually penetrated with his penis the mouth of another person, namely, Maki Jack, without her consent and subsequently ejaculated his semen on her head.

2.	Defendant is charged under Section 347(1) of the Criminal Code Act for Sexual Penetration. Police information says on 12th October 2021, Defendant did sexually penetrate with his penis the mouth of another person namely Maki Jack without her consent. Police statement also says victim was dropped off after being sexually penetrated by the Defendant inside his room at Sanctuary hotel at Waigani.

3.	Police says Defendant forcefully sexually penetrated the victim on her mouth after she was forcefully given cocaine and ice and when she was high on drugs. Police says there were firearms and drugs also found inside the Defendant’s hotel room as alleged by the victim.

4.	Police further went on to allege as specified on the statement of facts that after the encounter with the Defendant, the victim was taken out to the main road by the Defendant’s driver and one other man for her to be taken home to Vadavada on a taxi. The time was around 2.30am in the morning these two man gave the taxi driver a K200 and 5x marijuana rolls and asked him to rape and kill her. Police says the taxi driver took the victim to garden hill road side and raped her. He left the victim there and drive away.

5.	The victim was then taken by the police fox unit to Town police station to lodge her complaint after the two policemen were told of her ordeal. At town she was handed over to a police officer who was at town police station between 7am and 8am on 13th October 2021 by the first name of Sergeant Danley. Police says this policeman took the victim away on a black Mahindra to Motukea and forcefully raped her. This named policeman dropped her off at manu at 5pm in the afternoon.

CHARGE
                                    
6.	Defendant is arrested and charged under Section 347 of the Criminal Crime Code Act and Defendant’s charge is proved in the resulting mode:
 
“347(1).        RAPE.
(1)  A person who sexually penetrates a person without his consent is guilty of a crime
 
ISSUE
 
7.	Whether bail shall be granted to the Defendant in the circumstances
 
THE LAW
 
The Laws of Bail Application
 
8.	Section 3 and 6 Section of the Bail Act and Section 42(6) of the Constitution.
 
Section 3-Bail Act
3.       Object of Part II.
The object of this Part is to give effect to Section 42(6) (liberty of the person) of the Constitution which provides that 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 and to acquittal or conviction unless the interests of justice otherwise require.
 
Section 6-Bail Act
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.
 
9.	Section 9-Bail Act

9.	Bail not to be refused except on certain grounds.
[1](1) Where a bail authority is considering the 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: –
(a)      that the person in custody is unlikely to appear at his trial if granted bail;
(b)      that the offence with which the person has been charged was committed whilst the person was on bail;
(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–
(i)       a serious assault; or
(ii)       a threat of violence to another person; or
(iii)      having or possessing a firearm, imitation firearm, other offensive weapon or explosive;
 
10.	Section 42(6)- Constitution-Rights of all persons
 
42. Liberty of the person.
 
(6) 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.
 
RULING
11.	I have considered the Defendant’s application for bail and the reasons why the defendant should be granted bail. I have also noted the guarantors’ affidavits in support and how they are describing the Defendant and to pledge their sureties.
12.	Defendant in his Affidavit says he is the Manager for the Sanctuary hotel here in NCD and his passport was confiscated by CIA officials and also he is not a flight risk. Would bail be granted based on the Defendant’s reasons? Let me go further and discuss the laws and facts.

13.	Right to Application for bail is provided by the Constitution as well as the Bail Act but the grant of bail is not automatic nor an accused’s rights. Both the Constitution Section 42(6) and Section 9 of the Bail Act provides reasons upon which the court should be satisfied by exercising its judicial discretion on whether to grant or refuse bail.

14.	 I have gone through the Statement of facts and noted that Defendant was arrested for the alleged offence of Sexual penetration which occurred on 12th October 2021. The statement says the victim was forced by the Defendant to smoke a pipe. Police statement also says when the victim was high on drugs, Defendant got a blood sample out from one of her fingers without her consent and tested for HIV/HIDS but the result was negative. Subsequently Defendant forced the victim to suck his penis.

15.	Moreover, on the morning of 14th October 2021, victim was forcefully raped by a taxi driver and later by a policeman who is only described as Sergeant Denley of the Port Moresby Police station between 7am -8am on 14th October 2021.

16.	Section 3 of the Bail Act gives effect to Section 42(6) of the Constitution that (other than treason or wilful murder as defined by an Act of the Parliament) an accused is entitled to bail at all times from arrest or detention and to acquittal or conviction unless the interests of justice otherwise require.

17.	Section 6 of the Bail Act provides that bail can be made at any time and Section 4 of the Bail Act also says only the National and Supreme Court to grant bail on certain cases. I am gratified Section 6(1)(2) of the Bail Act is met by the Defendant because of the fact that the Bail Application was already filed and service was effected on the prosecution. However, Section 6(3) of the Bail Act says reference must be given to Section 4 and 9 of the Bail Act.  Section 4 of the Bail Act says only the National and Supreme Court may grant bail on certain cases. I have gone section 4 and was pleased that the offence in which the Defendant alleged to have been committed can be given bail and moreover there was no firearms involved even though there were some firearms seen inside the Defendant’s hotel room.  Finally let me look at Section 9 of the Bail Act since Section 6(3) gives effect to Section 9 of the Bail Act.

18.	Section 9 of the Bail Act says Bail not to be refused except in certain cases. What are these exceptional cases where bail could be refused? Section 9(1)(c) (i)(ii) and (iii) of the Bail Act explain these cases. 
9.       Bail not to be refused except on certain grounds.
[2](1) Where a bail authority is considering the 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–
(i)       a serious assault; or
(ii)       a threat of violence to another person; or
(iii)      having or possessing a firearm, imitation firearm, other offensive weapon or explosive;
 
19.	While looking at the statement of facts, it says the victim was forced by the Defendant to smoke pike and forced her to suck his penis. Not only that but statement also says the taxi drive took her to a place called Garden hill and forcefully raped her and later threatened by a policeman by the name of sergeant Denley of town police and raped her after the ordeal at sanctuary hotel on the night of 12th October 2021.

20.	 When assessing everything, I am satisfied that certain grounds for refusal of bail under Section 9 of the Bail Act are met by police through their statements of facts. There are allegations of serious assault and threat of violence to the victim by the Defendant at the time when she was sexually penetrated. There is also allegation of firearms found in the Defendant’s hotel room regardless of whether or not the fireman was used in the commission of the crime. Moreover, under Section 42(6) of the Constitution, the grant of bail to the Defendant would not be in the interest of justice since defendant’s action caused subsequent strings of Aggravated sexual assault involving the taxi driver and sergeant Denley which was initially started off by the Defendant.
 
CONCLUSION

21.	 Defendant’s application for Bail filed on the 21st of February 2021 is refused and matter shall proceed for mentions on the adjourned date while Defendant remains in custody.
 
ORDERS
 
22.	My Final Orders

a.	Application for Bail is refused.
b.	The date for the substantive matter still remains.
c.	Warrant be issued for the Defendant to be remanded and kept in custody until the mention date. 

Young and Williams                                        For the defendant
Police Prosecutor                                           For the State

[1]          Section 9 amended by No. 11 of 1982, s1.
[2]          Section 9 amended by No. 11 of 1982, s1.