N4080

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No 272 OF 2010

MATTER OF BAIL ACT CHAPTER 340

IN THE MATTER OF BAIL APPLICATION BY
ALPHONSE SILAS HOMBI

Waigani: Kirriwom, J
2010: 08th, 14th & 20th July

PRACTICE AND PROCEDURE – Bail – Application to be released on bail pending committal – Abduction and Rape – Use of firearm – Serious Assault – Threats to person - Misuse and abuse of perceived authority – Strong likelihood of interference with witnesses – Bail refused – Bail Act, ss.4, 5, 6 and 19(1)

Cases cited:

Re Fred Keating v The State [1983] PNGLR 133
Bernard Juale v The State [1999] N1887 MP No. 215 of 1997
Triga Kakarabo v The State [1999] N1891

Counsel:

Mr. G. Haumu, for the Applicant 
Mr. N. Miviri, for the Respondent

RULING

20th July, 2010

1.	KIRRIWOM, J: The Applicant Alphonse Silas Hombi alias 'Alfie Silas' applies to be released on bail pursuant to section 6 of the Bail Act and Section 42(6) Constitution.

2.	The applicant is charged with one count of abduction and two counts of rape. Rape and abduction are crimes that bail is not automatically available to a suspect charged with those offences under section 4 of the Bail Act and bail can only be considered in appropriate circumstances by either National or the Supreme Court, hence this application. No other bail authorities has jurisdiction to release anyone charged with rape or abduction on bail.

3.	The applicant filed several affidavits deposed to by himself, his lawyer and others in support of his application. For purposes of factual background supporting the applicant's application for bail, I set out his first affidavit which was sworn 5th July 2010 wherein Alphonse Sailas Hombi of Gerehu Stage 6, National Capital District makes oath and says as follows:

1.	I am the Accused/Applicant in this proceeding and therefore can depose to this my Affidavit.

2.	I am aware that on or about 1st July 2010 I was apprehended by Police and was informed by the Police that they are arresting me in relation to MRO Gold Bar robbery and was (sic) taken to the Police Station.

3.	At the Boroko Police Station I was charged with one (1) count of Abduction and 2 counts of rape which I was never informed of prior to my arrest and I was surprised of the charge as I cannot recall any incident of such.

4.	I am also aware that the complainant who laid the complaint to the police in respect of the charges laid against me was an accessory to William Nauna Kapis and further I was never informed of the allegations and further there was no interview conducted prior to me being charged.

5.	I am also aware that the normal process of being arrested and charged is when someone is interviewed and cautioned of his or her rights before he or she is arrested, however in this case the Police never conducted an interview with me of which I can then be informed of the nature of the allegation before I could be charged.

6.	I am aware that on or about 1995, I was sentenced to jail for an offence of car theft and in 1998 I was released and I entered University of Papua New Guinea and did my Bachelor in Business Economics.

7.	During this period of time to this date of my charge I have never been involved in any criminal activities and I have been a good citizen since my last conviction to this date of my arrest in respect of the two charges laid against me.

8.	I am currently employed with the Office of Climate Change as the Asset Manager and my duties involve managing the assets of the office and keeping (sic) an inventory of the assets.

9.	In light of my duties I have been tasked (sic) by my boss to produce an inventory report relating to (sic) the assets of the Office before its closure pursuant to the National Executive Decision. Annexed herewith and marked with letter "A" is the true copy of letter from John Mosoro the officer in charge.

10.	I am also married with four (4) children and I am the only bread winner for my family. My wife is the house wife and she entirely depends on me.

11.	I have four (4) of which three (3) are in school and they are:-

-	The Elder daughter is 9 years old and she is in Grade 3 at Korobosea International School, National Capital District.

-	The Second child 7 years old and is in Grade 1 at Kokop College, National Capital District

-	The Third child is 4 years and is at Bambi Elementary, National Capital District.

-	The fourth Child is 1 year old and is with the mother at home at Gerehu, National Capital District.

12.	I also have other dependents who are depending on me and they are Isaac Hombi who is my younger brother studying at the Port Moresby Business College. My younger sister Vicky Hombi is doing her Grade 10 at Yangoru High School, East Sepik Province and they have school fees still outstanding for me to pay.

13.	I am also aware that I have to certain extent assisted the Police to apprehend the criminals who are involved in criminal activities such MRO incident and the Bank robberies and in light of that I have been threatened by those responsible and further I was given full protection by police should I face any opposition with the criminals. Annexed herewith and marked with letter "B" is the true copy of that said letter from Metropolitan Superintendent, Chief Inspector Fred Yakasa.

14.	I am very much aware that my life is threatened and I (sic) feel insecure if I continue to be detained as I have been assisting the Police to provide vital information in relation to the arrest of the criminals involved in the MRO robbery and others.

15.	Furthermore whilst I have been detained in the last few days my family has been threatened and their lives are also in danger.

16.	My continuous detention is going to affect my job and (sic) my family members.

17.	I am residing in Port Moresby and I have permanent residence which is (sic) in Gerehu Stage 6, Section 315, Allotment 17, National Capital District and (sic) all my children are attending school in Port Moresby and there is no possibility of me leaving Port Moresby should I be granted bail.

18.	I will fully comply with all bail conditions should I be granted bail and further I will not interfere with any state witnesses." 

4.	The application is strenuously opposed. Reasons for objecting to bail are set out in the affidavit of Detective Chief Inspector, Benjamin Turi sworn 7th July 2010 who deposes to the following: 

"
1.	I am a Detective Chief Inspector and Second in Command of NCD CID Operations at Boroko Police Station. I am currently leading this investigation into (sic) the alleged offences committed by the above Respondent (sic) Alphonse Sailas Hombi.

2.	I am the case officer in the matter of The State vs. Alphonse Sailas HOMBI and refuses (sic) Bail on the following reasons.

3.	The cases involved use of gun and threatening with violence by the Accused when committed these offences. The offence are very serious and that the Accused is an ex-convict and feels no fear nor remorse when threatening his Victim with gun by discharging a shot that near misses her feet before forcing the Victim into his car (sic) where he committed the offences now charged with.

4.	The Accused will definitely interfere with Witnesses and the Victim's family as he shares the same fence or boundary with the Victim and her family.
5.	The Victim's family is very vulnerable and has been suppressed in the past by the Accused before this incident was reported to police.

6.	The accused is feared by the community as he has been the source of strength and bad influence to young boys in the vicinity of his residence (sic) and the Victim/Complainant.

7.	He has been named by convicted criminal William Nanua Kapis in the MRO case as the mastermind in planning the 2007 heist and that the Victim/Complainant of this matter was accused by him (Alphonse Sailas Hombi) for being part of William N. Kapis agent and committed these offences.

8.	The three charges the Accused is now charged with are part and parcel of the ongoing investigation of the Accused's involvement and mastermind in the MRO Heist and police have good leads into this theft at MRO.

9.	The accused used his Mobile Phone to communicate with his associates inside the Police cell in Boroko on the first night in custody were police confiscated the phone and found threatening messages in the phone Inbox Message memory. Police can produce this phone with these messages as exhibits. These messages show four (4) people colluding with the Accused of where the Victim lived, where they are from and the names of her parents. The second person's message he asked the Accused of what He (Accused) wants him to do with the Witness and the Victim. The third person who communicated with the Accused was told by the Accused to pass a message to one of the Witness's brother to ask their father to drop his case and that they can solve it out of court. The fourth (4th) person message shows that the Accused and him are accomplices in the cases where William N. Kapis mentioned in the court.

10.	On the first night (01/07/10) when the Accuse spent (sic) in police custody one of his boys namely, Ron Muiap, said (sic) threatening words to the Victim and other Witness. Police intervened and went door to door in Vanesi Street where the accused lives and warned people to respect the law and let police do its job. Ron Muiap is still at large as he escaped and police did not arrest him. He still in hiding.

11.	On the second night (02/07/10) in custody the Accused's wife called out to the victim's family and threatened them. Police again intervened and strongly warned the wife at her home.

12.	The younger brother of the Accused, Isaac HOMBI got drunk on Saturday night (03/07/10) and sent threatening words that he will burn the house of the Victim and other Witness. Police again intervened and found Isaac Hombi very drunk with the Accused's relatives and strongly warned them all.

13.	Therefore, the Accused must be remanded in Correctional Services (CS) custody so he cannot interfere with the victim and other witnesses. He is a high profile Accused and thus must remain in CS custody so that key witnesses will feel free to give evidence before the court as matter for State and the Public Interest respectively.

14.	As stated in paragraph (10) the Accused has been colluding with is Associates to interfere with justice, the Witness and the Victim. There is no guarantee that should the accused be released on bail he will conform to the bail order. It will be a slap in the face to the Victim as they both live side by side in same area.

15.	Few more charges are still pending against the Accused and therefore Alphonse Sailas HOMBI should not be released as he will interfere or temper with the Victims and Complainants and also hide evidence that police are currently working on.

16.	Police have good evidence now to charge him for the Four (4) Million Kina Fraud from Finance and his connection with the 2007 MRO Robbery as the mastermind in this heist.

17.	His life is not being threatened at all in Correctional Service (CS) Bomana as there can be arrangement done by CS Management. This is because a good number of Policemen have spent time in Bomana even though their lives were at stake so that is no difference with him. Police have been well informed that in the first two nights spent in Bomana he was not harmed at all.

18.	Police have also abstracted a copy of a memo signed by NCD Metropolitan Superintendent (Met/Supt) in support of the Accused as he has been assisting police. This is not a true letter from Met/Supt as the memo was done by Police Station Commander Gerehu who is a close friend of the Accused and got the Met/Supt to sign. He has never been assisting police at all but use police to protect him from William Nanua Kapis as there is a difference between both men because of the revelation by Kapis to the media and Court on various crimes.

19.	I pray to this honorable court that the above 16 reasons are justifiable enough to convince this court that the Accused's (sic) bail be refused."

5.	The Applicant refuted these claims and allegations by filing additional affidavits rebutting or explaining those assertions by his own additional affidavits and through other witnesses. I will refer to these affidavits later in my judgment. Also relied on in opposing this application is a statement dated 12th July 2010 signed by the victim of these alleged crimes.

6.	The applicant grounds his application on a number of factors:

1.	The essence of his active engagement at his work place and working with Office of Climate Change as its Asset Manager and the nature of his work required his continue pressure.

2.	Large family of wife and 4 children, 3 of school age except one and other dependants whose up-bringing he inherited by custom who are relying on him for sustenance such as his younger brother who attends a tertiary institution in the city and his young sister who is in Grade 10 at Yangoru High School..

3.	Pressing school fee problems that he must settle for his children and his younger siblings in Port Moresby and Wewak.

4.	He had been instrumental in the capture and arrests of those involved in the MRO robbery and the William Nanua Kapis bank robberies and as such he had been threatened by those in prison for putting them behind bars.

5.	His family is unsafe at home while he is detained inside the prison.

6.	He has a permanent place of residence at Gerehu Stage 6, Section 315, Allotment 17, National Capital District where the children go to school.

7.	He has nominated two guarantors who are John Mosoro and Dr. Lawrence Sause, both of whom deposed to affidavits in support of their guarantee. John Mosoro is the applicant's boss as the head of Climate Change office and Dr Sause was the Dean of the Arts Faculty at the time of the applicant's studies at the University.

8.	A number of other affidavits were also relied upon that were deposed to in response to that sworn by Chief Inspector Ben Turi and one that annoyed me and did no justice to this case was that sworn by Inspector Steven Kapera, Gerehu Police Station Commander refuting certain matters contained in the affidavit of Detective Chief Inspector Benjamin Turi. I don't intend to state the contents of that affidavit as it was sworn in bad taste and not in the best interest of the Constabulary but driven by personal vendetta. 

9.	But the letter itself, the subject both men's disagreement as to its reliability and sincerity, is reproduced below. It is dated 15 January, 2010 and typed in official Police letterhead, directed to ALL POLICE PERSONNEL, showing S Kapera, PSC Gerehu as the action officer and purportedly signed by Mr Yakasa. The letter reads: 

"Sir

SUBJECT: Mr Alfie Silas assisting police personnel to apprehend prison escapee – William Kapris

The bearer of this letter is Mr Alfie Silas of Prime Ministers Department. He has sought permission from Metropolitan Commander NCD A/Chief Superintendent Mr Fred Yakasa to assist police in apprehending William Kapris.

Police intelligence reveals that William Kapris has escaped from Bomana maximum unit to kill Mr Alfie Silas and other unknown agendas to execute. A police section has been tasked to keep surveillance on Mr Alfie Silas in case William Kapris trails him.

Mr Alfie Silas has given 100% assurance to police that he will give vital information to police through Inspector Steven Kapera Police Station Commander Gerehu for William Kapris apprehension.

Police personnel are hereby informed to assist Mr Alfie Silas in the event of tough circumstance.

For your information

Mr Fred Yakasa
A/Chief Superintendent
Metropolitan Superintendent
Boroko Police Station"

10.	It is ethically inappropriate for police personnel of senior ranks taking sides in criminal cases prosecuted by police in high profile cases such as this which demeans the integrity of the Police Force and raises serious questions of police independence and impartiality in crime detection, investigation and prosecution of criminals when they use public forums like the courts to air their internal disagreements without observing proper protocol to settle their differences (which is much preferable in their own court yards or offices). It does not assist either party engaged in this conflict before the court nor does it do them any good. 

11.	If it needed anyone to assist the Court on this point, only Mark Yangen can tell this court that Ben Turi was not truthful or he misunderstood the circumstances in which that letter may have been written, if it is true. It is not for Inspector Steven Kapera to be defending himself in this trial when he should be doing that at Police Headquarters Konedobu.

12.	The facts pertaining to the three charges against the applicant are as set out in the reverse side of the Information dated 2nd July 2010 filed in the District Court by the Police under the heading Summary of Facts.

13.	It is alleged that between 7 – 8 pm 20th February 2010 the applicant whose house is next door to the victim's parents' house went to the premises of the victim's parents uninvited, threatened the victim with a pistol by firing a shot at her feet and forcibly took the victim away in his vehicle on the pretext of taking her to Boroko Police Station for reasons known only to himself. For purposes of this application, I shall refer to the victim by initials SP.

14.	At Boroko Police Station, instead of taking her inside the office to be dealt with for whatever reason he forcibly brought her there at gun-point, he drove out again and took her to Gabaka Street Gordons and inside the car park of Office of Climate Change, he forcefully had unprotected sex with her in the back seat of his Toyota Hilux without her consent. He then drove back to Gerehu with the victim, however instead of taking her home, he turned into the back yard of St. Paul's Catholic Church at Gerehu Stage 6 where he again forcefully had unprotected sex with the victim the second time despite her pleas and resistance. When he had finished he took her home but threatened her to keep quiet about what happened.

15.	She was scared stiff by the threats issued and did not report the incident right away but subsequently she did after some time resulting in the Applicant being charged with one count of abduction under section 350 and two counts of sexual penetration under section 347(1) of the Criminal Code.

16.	The applicant was apprehended and taken into custody on 1st July 2010 and the case is now before the Committal Court. He has been in custody for almost three weeks.

17.	Right to bail is guaranteed by the Constitution. This right is founded on the principle that every person charged with a criminal offence is presumed innocent until proven guilty by a court of competent jurisdiction. But this right is not unfettered right. This right can be regulated and restricted where appropriate by law in certain circumstances and this is why the Bail Act was enacted that governs the law on bail.

18.	Section 9(1) of the Bail Act stipulates those considerations the Court must take into account when determining a bail application. The Act precludes bail to an applicant where the following circumstances are found to exist in a case:

1.	where the person in custody is unlikely to appear at his trial if granted bail;

2.	the offence with which applicant is charged was committed whilst he was on bail;

3.	acts constituting the offence consist of –

(a) serious assault

(b) threat of violence to another

(c) armed with a firearm or other offensive weapon

4.	the person is likely to commit an indictable offence if he is not in custody;

5.	necessary for the person's own protection to remain in custody;

6.	he is likely to interfere with witnesses or person who instituted the proceedings;

7.	offence involved property of substantial value that has not been recovered and if released he would make efforts to conceal it or otherwise deal with the property;

8.	extradition proceedings in progress under the Extradition Act;

9.	offence involved possession, importation and exportation of narcotic drug;

10.	offender is charged with breaching parole.

19.	The Constitution guarantees bail in all offences except willful murder and treason. But case laws have said that even in willful murder, bail can still be considered and granted in an appropriate case. See Re: Fred Keating [1983] PNGLR 133.

20.	Bail in this case as of right does not exist. It is regulated by section 4 of the Bail Act, hence this application. Section 4 provides:

"4. Only National or Supreme Court may grant bail in certain cases.

(1) A person—

(a) charged with wilful murder, murder or an offence punishable by death; or

(b) charged with rape, abduction, piracy, burglary, stealing with violence or robbery, kidnapping, assault with intent to steal, or break and enter a building or dwelling-house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence,

shall not be granted bail except by the National Court or the Supreme Court.

(2) For the purposes of Subsection (1), "firearm" includes imitation firearm whether or not it is capable of projecting any kind of shot, bullet or missile."

21.	The applicant has given a number of grounds for seeking bail which I will be addressing shortly. But firstly I note that the same application was pursued in the District Court and the District Court refused bail for the following reasons:

•	This was an offence of serious assault;

•	There was threat of violence to another person

•	He was in possession of firearm at the time of offence and used it to commit the offences; 

•	He was likely to commit an indictable offence if he was not kept in custody;

•	It was necessary for his own protection that he is kept in custody;

•	He is likely to interfere with witnesses if released on bail.

22.	The reasons under-pinning the learned magistrate's refusal for bail appear to be overwhelmingly supported by the evidence presented in this case. Therefore the applicant must convince the Court that there are exceptional circumstances for him to be released on bail.

23.	Applicant attempted to do that by relying on those grounds he pleaded in his affidavit filed in support. In summary I address those main ones below.

Concerns about and likelihood of loss of employment

24.	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. The applicant in his affidavit states that as the assets manager for the office of Climate Change, the effectiveness of the office rested on him being at work. Is it in the interest of the public that he is released on bail for the sake of the office of Climate Change notwithstanding very serious allegations raised against him?

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.

Welfare of the family

26.	His family concerns are noted. This is one of the very common grounds raised in such applications like this. Courts have not considered family situations as justifying release on bail for the same reasons I have given earlier. Responsible people must always have the well-being and interest of the family at heart and put their interest ahead of their own selfish inclinations, consequences of which will seriously affect them. If he did not have their interest as his number one priority when he by his deliberate act or omission compromised their interest, the Court will not elevate their interest to a higher level on his behalf.

27.	Issues such as school fees to be settled are matters he should have considered them at the time, not now.

Threats to life within remand institution for assisting Police

28.	This is not a good ground for seeking bail. The Court rejected this argument in a number of reported cases I am aware of including Bernard Juale v The State [1999] N1887 - MP No. 215 of 1997 and Triga Kakarabo v The State [1999] N1891. Both accused were policemen who were responsible for many criminals getting convicted and going to prison. The Court said:

"It is unfortunate that the State had to adduce evidence of prior conviction to oppose this application for bail. On reflection there was no other way. After all there is evidence of this accused abusing his bail conditions once before when he started a tribal fight. This evidence is relevant for subsequent bail consideration for the same person. Therefore quite correctly, this Court was entitled to be provided with that information.

Applicant has not shown any exceptional reasons why he should be given bail. The grounds he relies upon are not exceptional. What does it matter if he denies the charge? There is no question about his innocence until proven guilty. That is a matter for substantive hearing.

Does the applicant being a policeman make him an exceptional case to be released on bail? It was submitted that it would be unsafe to remand the applicant in the custody of the prisons especially from other inmates. Similar argument was raised in the case of Bernard Juale v The State MP No. 214 of 1997. (Unreported) 

Bernard Juale was a traffic policeman in Port Moresby who paid or hired some 'boys' to kill his wife. In return he was to give them some money and a high-powered automatic firearm such as M15. On the day of the killing he drove his wife to 5 mile Mobil Service Station as pre-arranged where he left his wife and child sitting in the car and he walked into the store. While he waited inside the store his 'boys' arrived in another car, pulled up beside his stationary vehicle were they shot his wife on the head at point-blank and escaped. Two of the boys confessed to the killing and were sent to jail. They later gave evidence on behalf of the State against Bernard Juale. Bernard's lawyer submitted that his client's safety in prison cannot be guaranteed by the fact of him being a policeman and there would be inmates in the jail who would want to even scores with him for their arrests. His wife's relatives too, it was submitted were after him and as such he would be much safer outside the prison in the custody of his own relatives. There was also evidence of his own house being subject of constant surveillance by strange people in different vehicles driving past every now and again. In rejecting that theory of policemen defendants being vulnerable or exposed to attacks from other inmates in prison remand, I quote what I said in Bernard Juale 'I will not accept -- assertion that the applicant will be safer outside in the protection of his family and relatives than in custody. If such protection outside is to be offered by the police, that may very well be in order. But I cannot accept that a self-appointed band of tribesmen or relatives will do much better job of protecting him than CIS personnel empowered and charged by law to provide this service to those persons committed to their custody'. Consequently bail was refused."

29.	The Court rejected their arguments and said that the safest place for them is in the disciplined institution like in remand centres managed by prison authorities who are well trained to provide such specialized services. They are paid for providing that service. There is no other safer place than the prison. It is within their jurisdiction to determine and resolve questions of safety from within prison confines where it arises and it is within their authority given by law to find a solution to that. It is not a matter for the Court.

Threats to family at home

30.	This question was also addressed in Bernard Juale where the Court said that the issue of safety of family at home is also a matter for the Police, another disciplined authority entrusted by law to prevent breaches of peace and protect persons and properties. As a suspect charged with serious criminal offences, he is in no better position than the Police to provide the protection needed by the family, if true, than the Police without jeopardizing his own position getting into more serious problems.

31.	Furthermore, if it is true that his family is threatened, it already shows that his own satisfy will also be at risk if he is released on bail. This ground works in favour of detention than being at large.

32.	Reasons for opposing bail are founded in the Bail Act section 9(1). The same grounds were the basis for the District Court refusing bail as evidenced by the Certificate of Refusal to Grant Bail dated 1 July 2010. I shall briefly address these considerations below.

•	Serious Assault, Threat of Violence and Use of Firearm.

33.	There is no doubt that this is a case involving very serious assault of personal nature on anyone.

34.	The applicant is armed with a firearm and in company of another person, according to the victim's statement, smashes the security light outside the victim's parent's house and threatens them by discharging the gun at the victim's feet and forcibly takes the victim away in his vehicle and then rapes her two times in the backseat of his vehicle in the course of the night. He returns her to the family and threatens to harm her if she ever said anything about the incident.

35.	The applicant denied this allegation and said that he was a licensed firearm owner of two guns both of which have been confiscated by the Police.

•	Likelihood of committing an indictable offence if released on bail.

36.	The applicant has already demonstrated by his actions that he will stop at nothing or nothing will stop him from getting what he wants if given the opportunity to do so. Evidence from Det/CIP Ben Turi shows the amount of influence the applicant has over people with whom he comes into contact and through whom he is capable of bringing about fear upon the victim and family and in the process put himself in more serious trouble.

•	Likelihood of Interference with Witnesses

37.	On these same facts there is continuing problem of witnesses including the victim being interfered with, even with the applicant being detained. The wife of the applicant, younger brother and close friends have already intimidated her and family over his arrest and detention. So the worst fears of the victim and family have only just started, and will get a lot worse if the applicant was released on bail and was to personally join in, either directly or indirectly as evidence from Chief Inspector Ben Turi shows about the Text Messages in the In-Box of his mobile phone that was confiscated from him inside the Police Cells at Boroko Police Station.

•	Remanded in custody for his own protection

38.	The applicant is not so much concerned about his safety at large, he said he can manage his safety at large. But he is concerned about his safety in prison. I have already addressed the issue of safety in prison and safety outside the prison. In my view, safety in prison is the applicant's own figment of imagination that he conveniently orchestrated to build a strong case for bail for himself.

39.	There is no evidence of his safety at risk in prison, nor is there evidence of his safety at risk outside prison. He complains about the safety of his family at home although no evidence was tendered of them being threatened in anyway except his own assertion of them being under threat. Threat from whom? He is the one who is being feared? All the evidence is pointing in his direction as being the one who has the potential and the ability to generate fear to the victim and her family. His family has already demonstrated this aggression on the victim and family since his arrest and detention as evidenced by the statement from the victim I alluded to earlier and the evidence of CIP Ben Turi.

40.	Grant or refusal of bail is a discretionary matter for the Court, a discretion that must be exercised judicially. I have considered the circumstances of this case and the materials filed in support of this application and heard submissions from Mr. Haumu who has done much work to put this application together on behalf of his client. Nonetheless, I have reached the conclusion that this is not an appropriate case that warrants bail being considered at this early stage of Police investigation. I note from the affidavit of Chief Inspector Benjamin Turi and also that of Mark Yangen, OIC, CID, a number of factors that do not support this case as an ideal one for bail and these include –

1.	The case is undergoing committal hearing and investigations are still continuing which will assist police to possibly lay further charges on other crimes he is suspected of being involved in.

2.	The applicant is alleged to be the mastermind behind string of robberies including the MRO heist.

3.	The applicant is an ex convict who had done time for armed robbery and has contacts and links with many criminal elements in the city responsible far many major crimes that the Police are working on since the arrest of the much celebrated criminal William Nauna Kapis.

41.	Apart from those reasons highlighted from the evidence by Benjamin Turi and Mark Yangen, I am of the view that this is a case where public interest does not support bail being granted at first instance as investigations into these and related allegations are far from over. He has been named by notorious criminal William Nauna Kapis as the mastermind in the robberies that he executed around the country including the MRO heist. 

42.	Only last week 19 PNG citizens were freed by the Court after being found not guilty on charges of being accessories to William Nanua Kapis after spending two years in custody, which is the equivalent of the maximum penalty for that offence that they would have served in jail if they were convicted. All these people were present in Court awaiting their trial when the applicant presented his application for bail and I wonder what must have been going on in their minds seeing the applicant was asking for bail in a very serious case of armed abduction and two rapes in the same night at the point of a gun whose penalties if convicted can carry maximum terms of life imprisonment because of the circumstances of aggravation involved in the use of gun.

43.	In my view, the likelihood of the applicant interfering with the State witnesses, i.e. the complainant and her family, are extremely high and given the evidence presented in the affidavit of Chief Inspector Benjamin Turi and the statement from the victim herself of being warned by the wife of the applicant, I do not take these warnings lightly.

44.	It is not the question of the accused being released on bail and ordered to reside in another area far away from his residence at Gerehu Stage 6 Section 315 Allotment 16 Toliman Crescent, if that will afford any comfort to the complainant so that he can be released on bail. Court will not make ludicrous orders like ordering someone to leave his own residential home and reside elsewhere just so that he can be out on bail at considerable costs and inconvenience to him and his family who much need his presence and support at home. That will be the last thing on my mind. 

45.	The victim and her parents live in the adjoining property separated by a common boundary. The applicant chose by his own deliberate judgment to create this rift between him and the victim by this most humiliating and degrading anti-social behavior with his neighbor that has landed on him three very serious criminal charges. 

46.	And the evidence before me is that the applicant is capable of influencing and manipulating an outcome in the investigation of this and other alleged crimes that police are also collecting evidence on before further formal charges are laid with the amount of influence he has that can be counterproductive to police efforts in bringing to trial all those who are implicated in many of these organized crimes taking place in broad day-light in PNG. 

47.	As I note from some of the documents that were also filed in this application particularly annexed to the affidavit of the applicant sworn 10 July 2010 and marked as Annexure A that the police interests in the applicant go far beyond these three charges which are of most recent origin. Police investigation of the applicant goes back to July 2008 when OIC CID Mark Yangen applied for Search Warrant to search the applicant's home.

48.	The fact that the applicant could own two licensed firearms now used in the commission of these alleged crimes when the law is quite tight on new licences speaks volumes of preferential treatment given to the applicant and his ability to influence events and perhaps manipulate people in high places within the government bureaucracy and hierarchy to his advantage, notwithstanding the fact that he is an ex convict who had done time in Bomana Prison for armed robbery and car theft where he was sentenced to 10 years in 1992 and was released from custody in 1998 according to the antecedent report. 

49.	This in itself raises serious questions of Police Commissioner's exercise of discretion in a serious issue such as the issuance of firearm licences to ordinary citizens in the country, when the same firearms end up being used by persons with past criminal records such as the applicant to commit crime such as abduction and rape. The applicant's past record was brought under scrutiny of the court in this application by himself in his affidavit so it is not information unfairly used by the prosecution to gain mileage in out-smarting his request for bail. In any event, in my view, even in bail application, court must be made aware of every detail of an applicant's background when dealing with dangerous people for the sake of safety and well-being of all law-abiding people at large.

50.	While these guns have been confiscated by the police, there is no guarantee that the applicant will not come into possession of firearms again, howsoever acquired, once he is released on bail, if acquisition of these dangerous weapons by him is as easy as dialing a telephone number. This is a serious case where licensed firearms have been misused for criminal purpose and our law-makers in their wisdom saw the need for people who used firearms to commit crimes to be denied bail so that they are remanded in custody until the trial is completed. This is a case where the wisdom of the legislators has been well grounded and I say no more. It simply begs the question as to how many more people of the applicant's background who have been granted licences to carry and own firearms be they pistols, rifles or shotguns.

51.	I have noted the affidavits of the two guarantors, Dr Lawrence Sause of University of PNG, Dean of Faculty of Arts and Mr John Mosoro, CEO of the Office of Climate Change. While each has deposed to his familiarity with the applicant and how much trust each has on him, nothing in their affidavits shows any monetary sum each wishes to either pay or pledge in support of his guarantee which is a requirement under the Bail Act. Guarantees without real commitment have been broken many times in the past and courts are mindful of this. 

52.	Affidavits of Fabian Muip, Masa Kia and that of the applicant are supportive of the applicant's application for bail by portraying the applicant as a law-abiding citizen who is either wrongly or mistakenly mixed up in all these allegations. Such questions of fact are matters for the court to weigh up at an appropriate time of trial not so much on the issue of bail. 

53.	In all the circumstances, I refuse bail to the applicant primarily because this is a serious case of assault, I am convinced that the accused will interfere with witnesses and the complainant, I am also convinced that given his reputation, the likelihood of the accused committing an indictable offence in the process of frustrating police investigations into these offences and that the applicant cannot be trusted to his word.

_________________________________________
Haumu Lawyers: Lawyer for the Applicant 
Public Prosecutor: Lawyer for the State