N6376
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (Ap) NO. 120 OF 2015

	MANUEL SINGERI	

V

THE STATE

Lae: Murray J
                   2016: 20 July & 01 August 

CRIMINAL LAW - PRACTICE AND PROCEDURE - Bail Application- National Court - Offence of Sexual Touching - s. 229B Criminal Code- Victim - Biological child of Applicant - Presence of s. 9 (1) (f) Bail Act - Grounds for bail - overcrowding of cell - family welfare - Not grounds for bail - Applicant's intended address- Family home - Not in the interest of Justice - Application refused.

Cases Cited:
Francis Potape vs. The State (2015) SC1419
Re Fred Keating [1983] PNGLR 133
Wari Vele vs. The State (2004) N2701
Yausase vs. The State [2011] PGSC 15; SC1112

Counsel:
Ms. Sabenu Katurowe, for the Applicant
Mr. Joel Done, for the State

DECISION

01 August 2016

1.	MURRAY, J:	The Applicant/Accused is charged with 1 count of Sexual Touching contrary to Section 229B of the Criminal Code Act.  The alleged incident occurred on 22nd February 2014.  He was arrested and charged with the said offence on that date.  On 15th April 2015, he filed his application for bail.  This application was heard on Wednesday 20th July 2016 and I reserved my ruling to today.
	
2.	The application is made pursuant to Section 4 and 6 of the Bail Act, and Section 42 (6) of the Constitution.

3.	In support of the application, the Applicant relies on the following affidavits.

1)	His own affidavit sworn 8th April 2015, filed 15th April 2015;

2)	Affidavit of Masakai Kikiaup, (first proposed guarantor), sworn 8th April 2015 and filed 16th April 2014;

3)	Affidavit of Batson Aring, (second proposed guarantor) also sworn 
8th April 2015 and also filed 16th April 2016. 

4.	In essence the applicant seeks an order that, pending his trial, he be released on bail.

Law

5.	More relevant to the application before me are Sections 6 (1) of the Bail Act and Section 42 (6) of the Constitution.  Section 6 (1) of the Bail Act reads:

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 and

Section 42 (6) of the Constitution reads:

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.

6.	The Court’s power to grant bail under these provisions is a discretionary one.  The exercise of that discretionary power should be used readily unless one or more of the considerations under Section 9 of the Bail Act is established 
(Kapi DCJ as he then was in Re Fred Keating [1983] PNGLR 133).

7.	In the present case, State objects to the grant of bail on the ground of Section 9(1) (f) of the Bail Act.

8.	Mr. Done submitted, the victim is the biological daughter of the Applicant.  Given that fact, it is highly likely that if bail is granted, the applicant will return to his family home, where the victim is, and will interfere with her, as a state witness and so bail must be refused. 

9.	In response, Ms. Katurowe submitted, State has not adduced any evidence to establish interferences and argued, this objection by the State must be rejected, and relied on the case of Wari Vele vs. State (2004) N2701.  

10.	Section 9(1) (f) of the Bail Act, reads:
	
(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)	...................

(b)	...................

(c)	...................

(d)	...................

(e)	...................

(f)    That the person is likely to interfere with witnesses or the person 		        who instituted the proceedings.

11.	In the present case, the allegations are that.  The Applicant is the biological father of the victim.  On 22nd February 2014 between 8.00am – 4.00pm, he was at Busu Mountain, Nawaeb District, Morobe Province.  There took the victim and his younger son to the garden.  On the way he told the son to wait, while he and the victim went ahead to collect bananas.  Whilst on the way he told the victim to stand, remove her clothes and hold his groin.  However, when the victim refused he grabbed her and tied both her legs and hands and forced her to lie on the ground.  The victim still refused and he kicked, forcing her to fall onto the ground. Whist she was on the ground, he went over her with his erected penis and rubbed his penis on her skin, then later tried to insert his penis into the victim’s vagina.  She struggled with him and he let her go.  The victim went and reported the matter to her mother, and then her mother reported the matter to the community leaders.  He was then apprehended by the Community Leaders and brought to the station.  At the station he was arrested and charged for the offence committed.

12.	I have read case of Wari Vele cited by Ms. Katurowe and find it has no application to the present case as the offender in that case was charged with wilful murder and not a sexual offence as in this case.  

13.	Given the allegations, I agree with Mr. Done that, there is present in this case section 9(1) (f) of the Bail Act which is a ground for refusing bail.  The question now is, should I refuse bail given there is the presence of section 9(1) (f).

14.	In Re Fred Keating (supra) the Supreme Court said, even if the one or more of the Section 9 considerations are present, bail is not automatically refused.  It is still a discretionary matter for the Court.  The applicant would need to show it is in the interest of justice that bail should not be refused, or that his continued detention in custody is not justified.  This was followed and applied by Supreme Court in the case of Yausase vs. The State.  So the next question for me to answer is, has the Applicant shown that it is in the interest of justice that bail should not be refused.  To answer that I will now consider his grounds for bail.

15.	The applicant’s grounds or reasons for seeking bail are set out in paragraph 7 of his affidavit.

They are:

a)		There is overcrowding in the jail cells and is very difficult to sleep in the nights.  I have to sit up and wait for my cell mates to sleep until they wake up.  The overcrowding poses great risk of contagious diseases and with my current health status, I am in a life threatening situation should there be an outbreak. 

b)	I am concerned about the welfare of my family considering my prolong detention pending trial.

16.	With respect to the first ground, Mr. Done submitted, it is not a proper ground that one can rely on for bail.  In support of this, he referred me to the case of Francis Potape vs. The State (SC1419).  I have read it and agree with 
Mr. Done.  In that case, in determining a bail application by Potape who had relied on a medical condition as ground for bail, at paragraph 12, the Supreme Court said; “Welfare of a detainee or prisoner, by virtue of sections 7, 13 and 67 of the Correctional Service Act 1995 is a matter for the Correctional institution and the gaol commander to attend to.  A prisoner may resort to legal processes to enforce his rights in prison in the event of denial of such a right.  Bail is not a process for enforcement of rights and should not be used as such.”

I respectfully agree with this view, and applying it to the present case.  I would dismiss the ground as having no merits.

17.	With respect to the second ground it is also dismissed as having no merit. The Supreme Court in Yausase case, has endorsed the view that, family welfare is not a ground for bail, and in this case, the alleged offence is a sexual offence against the applicant’s own child.  Therefore it would not be in the interest of justice to grant him bail which would allow him to go back to his family where the offence is alleged to have occurred.

18.	For the foregoing reasons, the Applicant has not satisfied me that his continued detention is not justified.
Accordingly I refuse bail.

19.	Having ruled that, bail is refused, that is not the end for the Applicant.  He can still apply again for bail before this Court if the circumstances change such as his address of residence.

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