N5174

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO. 36 OF 2013

MANBEI NEIPIA
Applicant

V

THE STATE
Respondent

Alotau: Toliken, AJ
2013: 13th, 14th March

BAIL – ruling on bail application – applicant charged and detained for the offence of rape - matters to be taken into consideration in granting or refusing bail – consideration of – production of guarantors in bail – payment of cash surety by applicant and guarantors – circumstances and conditions of bail considered – bail granted to applicant – s42 (6) Constitution, s6 Bail Act

Cases Cited
Nil

Counsel

M. Arua, for the Applicant
R. Auka, for the State

RULING ON BAIL APPLICATION

14th March, 2013

1.	TOLIKEN, AJ: The applicant applies for bail pursuant to Section 42 (6) of the Constitution and Section 6 of the Bail Act.

2.	The brief background to the matter is that the accused was alleged to have raped the complainant in the matter on 26th of June 2010. He was arrested sometime in June 2011 and subsequently charged for rape contrary to Section 347(1)(2) of the Criminal Code Act (as amended). He had been in custody for some 20 months now. He was committed for trial on 8/8/11.

3.	The applicant is 24 years old, married with 2 children and comes from Galubwa village on Furguson Island, Esa'ala District of Milne Bay Province.

4.	The applicant relies on the following grounds for this application:

1.	He has a defence on the merits (this ground was, however, abandoned at the hearing yesterday by Counsel for the applicant).

2.	He is the only carer for his elderly parent (father recently deceased), two sisters and his wife and children.

3.	That he is willing to pay K500.00 cash surety.

4.	If granted bail, he undertakes:

1.	Not to abscond bail and leave the Milne Bay Province until his case is concluded.

2.	To reside at his Galubwa village with his family.

3.	Attend all National Court Sittings if and when required.

4.	He will fully comply with any other conditions imposed by the Court.

5.	The applicant has also nominated two guarantors, Ridley Napoleon, a Village Constable at Galubwa village and Robert Wilson, a Seventh Day Adventists Pastor of Begasi village, Salamo, Milne Bay Province. Both men pledged to pay K100.00 as surety and to ensure that the applicant complies with bail conditions if he is granted bail.

6.	Mr. Arua submitted that bail is a constitutional right and that a bail authority has the discretion to grant or refuse bail.

7.	Anticipating that the State will (and in fact it did), oppose the application, Mr. Arua conceded that Section 9(1)(c)(i) and (f) (serious assault and interference) are present in this case. However, he submitted that the likelihood of interference will be unlikely as the alleged victim who is a school teacher has been transferred out of the applicant's community. There is, therefore, no likelihood that the applicant will interfere with her or any other State witnesses.

8.	Finally, he submitted that bail may only be refused if it is clearly in the interest of justice to do so.

9.	Mr. Auka on the other hand opposed bail under Section 9(1)(c)(i)(ii)(iii) (f) of the Bail Act.

10.	He submitted that the applicant used violence and was intoxicated when he allegedly committed the offence. He said there is no guarantee that the applicant will not similarly behave if he is granted bail.

11.	Mr. Auka also submitted that there is likelihood that the applicant will interfere with the victim in this matter. He said that the victim became pregnant from applicant after the alleged rape and now has a child. He said the applicant may use the child as an excuse to get to the victim.

12.	Furthermore, the applicant has not undertaken not to interfere with the victim as a condition of his bail.

13.	Now, bail as is trite or settled law, is a Constitutional right - albeit, a qualified one. It is qualified principally by the Bail Act and other legislation that regulate the grant or refusal of Bail for instance the District Courts Act, Ch.40, SS81, 82; Part VI Div.2 (Bail). The power to grant or refuse bail is also discretionary – the over-riding consideration being the interest of justice.

14.	Section 9 of the Bail Act as we all know provides for some grounds under which bail may be refused. The presumption to bail as is also settled is in favour of the applicant and the State must satisfy the Court or bail authority that the interest of justice demands that it be refused. As such, the presence of one or more of the grounds enumerated under Section 9 of the Act does not necessarily mean that bail should therefore be refused.

15.	In this matter, the State opposes bail under Section 9(1)(c)(i)(ii)(iii) and (f) of the Act.

16.	I accept that, yes, the alleged offence is a very serious one, indeed, consisting of a serious assault on the alleged victim and that force some of violence may have been used.

17.	However, I think that it must be shown to the Court that there will be a likelihood - that is a real likelihood - that there continues to be threat of violence on the victim or that the applicant will interfere with State witnesses. This is particularly so in non-capital offences such as this.

18.	I do not think, therefore, that in the circumstances of this case, bail should be refused on these grounds.

19.	The State says that there is a likelihood of interference of the victim by the applicant. Mr. Auka suggested that the applicant will try to get at the child to ultimately get at the victim.

20.	I accept that the alleged victim no longer lives in the applicant's community so there might not be opportunity for easy contact between them.

21.	In any case, it is not sufficient for the State to merely submit from the bar table that an event - in this case some form of interference - might or is likely to take place. This must be supported by evidence though such evidence need not comply with the strict rules of evidence (see Section 9(2) of Bail Act).

22.	I am, therefore, not satisfied that it is in the interest of justice that bail should be refused. I will grant the application with strict conditions. One of the conditions will be for the accused to report.

23.	I am mindful of Section 18 of the Act, that I must be satisfied, amongst other things that the conditions will not cause financial hardship to the applicant or be unreasonable. Hence, I shall take this into account when setting reporting conditions.

24.	Finally, I shall also approve the nominate guarantors.

25.	I, therefore, order as follows:

1.	That the applicant, Manbei Neipia be admitted to bail on the following conditions:

(i)	he shall pay a cash surety of K500.00;

(ii)	he shall not interfere with the State witnesses and in particular he shall not communicate with the complainant, Ms. Airie Leo in whatever form or manner;

(iii)	he shall not leave the Milne Bay Province without leave of the National Court;

(iv)	he shall reside at Galabwa village, Ferguson Island, Milne Bay Province until his case is determined;

(v)	he shall attend all call-overs of the National Court at Alotau.

(vi)	he shall report to the Criminal Clerk of the National Court at Alotau on the last Friday of each month commencing on the last Friday of March 2013.

2.	The nominated guarantors namely Robert Wilson of Begasi village, Salamo, Milne Province and Redley Napoleon of Galabwa village, Ferguson Island, Milne Bay Province are approved.

3.	The said guarantors shall each pay cash sureties of K250.00.

4.	Until the above cash sureties are paid, the accused shall be remanded in custody.

______________________________________________________________
Paraka Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State