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Tiktok v State [2010] PGNC 35; N4040 (11 May 2010)

N4040

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No. 34 OF 2010

IN THE MATTER OF AN APPLICATION FOR BAIL UNDER
S. 42(6) OF THE CONSTITUTION AND S.6 OF THE BAIL ACT

BETWEEN:

VICTOR GORU TIKTOK

Applicants

AND:

THE STATE
Respondent

Kimbe: Kawi, J
2010: 10th & 11th May

CRIMINAL LAW - Practice and Procedure – Bail application – Practice and – Offence of rape contrary to Section 347(1)(2) of Criminal Code. – Bail Act – State Objection based on Section 9 (1)(c)(i)(ii)(iii) and section 9(1)(f) No factual basis to lay foundation for legal conclusions to be drawn. – Duty of Police to ensure that appropriate and supporting facts are adduced by way of affidavit evidence or through Police brief on facts – Objections based on section 9 have not been established – Court left in a factual and legal vacuum – Bail is hereby granted with strict conditions.

Cases cited:
Re Fred Keating -v- The State [1983] PNGLR 133
Re Herman Kagl Diawa [1980] PNGLR 148

Counsel:

Mr Pun Paraka, for the Accused/Applicants
Mr C. Sambua, for the Respondent

RULING

11th April, 2010

1. KAWI, J: Victor Goru Tiktok is charged with one count of sexually penetrating one Grace Gambu then an 18 year old female without her consent at Pangalu village, Talasea, West New Britain Province on the 22nd day of July 2009. He has since been remanded in custody awaiting trial of his case. He applied for bail under sections 4 and 6 of the Bail Act.

Application

2. In making this application he filed an affidavit dated 16th April 2010 which he relies upon. Two further affidavits which he also relied upon are deposed to by the two persons that he nominated as guarantors: Mr. Joe Simu and Mr. Darius Uma.

Grounds Relied Upon

3. The applicants own affidavit lists out all the grounds that he relies upon in this bail application: These grounds are as follows:

(a) His concerns about the welfare of his five children;

(b) His concern about his two hectares of his of oil palm, Cocoa and coconut trees;

(c) He says he is a first time offender and does not want to be in the company of habitual and hard core criminals;

(d) Finally he argues that the Lakiemata detention center is overcrowded and is not conducive for his health.

The Statement of Facts

4. There is no Police Statement annexed to the Affidavit of the applicant. The only document annexed is the official Information charging the accused with one count of rape. But the facts giving rise to this charge is not annexed in order to give an appreciation of just how and the factual circumstances detailing how the crime was allegedly perpetrated. Whether this was a deliberate act or a simple omission I cannot tell but it is a serious omission.

The Arguments by Defence Counsel

5. The main ground which the accused rely upon is that he argues that bail is really a constitutional entitlement and so it must be granted as a matter of course. In this regard heavy reliance was placed upon section 42(6) of the Constitution and the presumption of Innocence provision under section 37(4)(a) of the Constitution. Reference was also made to the often cited case of Re Fred Keating –v- The State [1983] PNGLR 133 for the proposition that even if one or more of the considerations under the section 9 of the Bail Act exists, the Court still has the overriding discretion to grant bail.

Objections by the State

6. Counsel for the State objected to bail being granted. His objection was all based on the section 9 considerations particularly section 9(1)(c)(i)(ii)(iii). It is argued that during the sexual penetration of the vagina, force was used to subdue the victim in order for the penetration to be effected. There were actual threats and actual violence used. The other objection is based on section 9(1)(f). From the Information Sheet annexed to the affidavit, I note that this crime was committed at Pangalu village in the Talasea District. Naturally the victim who is also from Pangalu village along with other state witnesses will have to come from Pangalu village. Because of this fact it is argued that the accused may try to interfere with other state witnesses who may also come from the same village.

THE LAW ON BAIL

7. The law on bail is trite law which has been the subject of countless judgments of both the National and Supreme Courts in this jurisdiction in many cases. Since it is trite law, I need not repeat minute details of it save to reiterate the following summary of the legal principles which has been said many times:

(i) A person arrested and charged with an offence is entitled under section 42(6) of the Constitution to bail at anytime except for wilful murder and treason but a bail authority still has the discretion to refuse bail “if the interest of Justice otherwise requires’’. See Re Herman Kagl Diawa [1980] PNGLR 148.

(ii) Section 9 of the Bail Act prescribes circumstances in which bail may be refused. These section 9 prescriptions qualify the right to bail under Constitution section 42(6).

(iii) The existence of one or more of the considerations under section 9 of the Bail Act may operate as a bar to or form the basis for the refusal of bail but that is not automatic. There is a discretion vested in the Bail Authority to grant bail if any applicant for bail is able to show by appropriate evidence that his continued detention in custody is not justified. The existence of one or more of the considerations under section 9 is no reason to refuse bail - See Re Fred Keating [1983] PNGLR 133.

(iv) The burden to produce appropriate evidence to form a foundation for a grant of bail is not a difficult and complicated one because by virtue of section 9(2) of the Bail Act, the application of strict and technical rules of evidence and procedure are excluded.

(v) The list of circumstances under section 9 of the Bail Act are not exhaustive and conclusive and the court has the discretion to take into account any other considerations forming the basis of a particular bail application.

9. BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS

(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;
  

(d) that the person is likely to commit an indictable offence if he is not in custody;

(e) it is necessary for the person’s own protection for him to be in custody;

(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings;

(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;

(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody;

(j) that the alleged offence is one of breach of parole.

8. Let me address the objections put forward by learned counsel for the State and the submissions in reply by the learned counsel for the accused.

9. In relation to the constitutional arguments raised by Defence Counsel I am not convinced at all that because of the constitutional entitlement an accused person is entitled to bail as a matter of course or that bail is automatic. The very Constitution that provides for a presumption of innocence under section 37(4)(a)also provides for a legitimate process to be set in motion once a person is taken into custody. The constitutional entitlement to bail under section 42, is not an absolute, self executing and automatic right. It is a qualified right qualified by the prescriptions enumerated under section 9 of the Bail Act. To argue that bail can be given as a matter of course is therefore misconceived and erroneous. As a grant or refusal of Bail is also dependent on the State establishing the considerations under section 9 of the Bail Act, I must therefore consider the objections by learned counsel for the State.

10. In relation to the objections based on sections 9(1)(c)(i)(ii)(iii) and 9(1)(f) of the Bail Act, the court is being asked to draw legal conclusions on some factual basis. However before I can do that I must be satisfied that there are some facts to lay the factual foundation on the basis of which I can draw legal conclusions. The only factual matter here appear to be contained in the Information sheet which alleges that the sexual penetration of Grace Gambu occurred at Pangalu village in the Talasea District. Other than that the State has not produced at the very least an iota of facts to lay the factual foundations needed to draw legal conclusions and inferences. The burden to produce appropriate evidence to form a foundation for a refusal of bail on the basis of the objections as argued by the State, is not a difficult and complicated one because by virtue of section 9(2) of the Bail Act, the application of strict and technical rules of evidence and procedure are excluded. Section 9(2) is stated in the following terms:

"In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it."

11. In absence of any evidence from the State or the Police Investigating Officer, I am left in a factual and legal vacuum and will not draw the legal conclusions which were submitted by the prosecution. It is the duty of the Police, in particular the Police Investigating Officer to adduce sufficient facts to assist the court hearing a bail application. I find that the Police have failed in their duty to place before the court sufficient facts that the court can use in determining this application for bail. On this basis I find that all the objections raised by the State based on the section 9 considerations have not been established right from the outset. The legal effect of finding myself in such a factual and legal vacuum and making a finding, is that the accused would have to be granted bail. The case of Re: Fred Keating –v- the State [1983] PNGLR 133 stands for the proposition that even if one or more of the section 9 considerations are present the court still has the discretion to grant bail with the accused bearing the burden of satisfying the Court that his continued detention in custody is not justified.

12. The accused has given reasons as to why I should grant bail. I am not convinced at all that those reasons are sufficient for the accused to discharge the burden of so satisfying the court. But in the absence of the State adducing sufficient facts and evidence to justify the objections I will exercise my discretion to grant bail. And bail is hereby granted subject of course to the following conditions:

(a) The accused pay a cash bail of K1,100.00 before he can be released subject to Orders (1) and (2) below.

(b) The guarantor Joe Simu pays K550.00 upfront and produce necessary receipts to the National Court Registrar here in Kimbe first before the accused can be released.

(c) The guarantor Darius Uma pays K550.00 upfront and produce the receipts to the National Court Registrar here in Kimbe first before the accused can be released.

(d) Bail Certificate is to be released only upon compliance with Order (1), Order (2) and Order (3).

(e) The accused is to report to the Registrar of the National Court every Monday between 9:00 am and 3:00 pm.

(f) The accused is not to touch any liquor, drugs or other intoxicating substances while out on bail.

(g) The accused is not to interfere with or even talk to any State witnesses, or possible State witnesses.

(h) The accused is not to leave Pangalu also known as Rakabuku village, Talasea or Kimbe, West New Britain Province without seeking permission and being granted leave of the National Court.

_______________________________________
Paul Paraka Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent