N7983			
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 241 OF 2019

MUTI KARUKURU

V

THE STATE

Alotau:  Toliken, J
2019:  17, 23 August

CRIMINAL LAW – Practice and Procedure – Bail Application – Pending trial – Whether Applicant likely to interfere with witnesses – Whether in the interest of justice to grant bail – Nominated guarantors – Whether officers of the law are suitable or acceptable – Constitution, s 42 (6); Bail Act Ch. 340, ss 6, 9. 

The Applicant is awaiting trial for one count of sexual penetration of a child under the age of 16 years. At pre-trial the State indicated that it will also plead circumstances of aggravation at trial, namely that there existed a relationship of trust, authority or dependency, and that the complainant was aged below 12 years.  

The complainant is a niece of the Applicant and they live together in the same village. She is the daughter of the Applicant’s wife’s sister. The wife and her sister are State witnesses.

The Applicant applies for bail citing overcrowding at Giligili Corrective Institution and the welfare of his school-aged children as the main grounds for his application. The Applicant intends to stay with a relative in another village in the event that he is granted bail. He nominated two guarantors who are both officers of the law – one a Police Officer and the other, a Correctional Service Officer. 

The State objects to grant of bail citing a real possibility of interference and also to the suitability of the Applicant’s nominated guarantors. The State, however, did not call or file supporting evidence to substantiate its objection.

Held:

(1)	Bail for offences other than wilful murder and treason is readily available and unless it is in the interest of justice that it be refused. (Re Keating v The State  [1983] PNGLR 133)

(2)	Where the State alleges that there is a real likelihood or possibility of interference, a submission from the bar table is not sufficient.  The law is settled that the State must call evidence to substantiate a belief that there will be interference. (Re Keating v The State (supra.); Re Diawo [1980] PNGLR 148; Vele v The State (2003) N2701)

(3)	 In this case the State did not call or file supporting evidence. The accused’s wife is a witness for the State and the fact that the applicant would be living in another village, within the same area or vicinity, does not diminish the reality of a real possibility or likelihood that the Applicant will interfere with her and the other witnesses including the complainant.

(4)	Despite the fact that the State has not filed evidence to substantiate its objection, common sense should dictate that in circumstances such as this, particularly when the complainant and witnesses are family members including the spouse of the Applicant, there would definitely be a real likelihood or possibility of interference. Furthermore the interest of justice will not be served if bail were to be granted.

(5)	The law officers in question are not acceptable guarantors as this paints bad public perception that law officers could put themselves up to be guarantors for persons charged with this type of offence.

(6)	Bail is therefore refused. 

Cases Cited:

Re Keating [1983] PNGLR 133 
Re Diawo [1980] PNGLR 148
Vele v The State (2003) N2701

Counsel:

A Kupman, for the State
N Wallis, for the accused

RULING

23rd August, 2019

1.    TOLIKEN J:  The Applicant, Muti Karukuru applies for bail pursuant to Section 42(6) of the Constitution and Section 6 of the Bail Act Ch. 340. The Applicant was committed and is awaiting trial for one count of sexual penetration of a child under the age of 16 years pursuant to Section 229A(1) of the Criminal Code Ch. 262. 

2.  A pre-trial of the matter was done on 26th July 2019 where the State indicated that they will plead also circumstances of aggravation - that there was an existing relationship of trust and the complainant child was under the age of 12 years.

3.  The brief facts which can be gleaned from the police Summary of Facts annexed to the Applicant’s supporting affidavit are that the complainant child (then aged 6 years) is a niece of the Applicant and they lived at Watunou Village, Alotau, Milne Bay Province. It is alleged that on the date of the alleged offence the complainant (a niece of the Applicant) followed his daughter to the Applicant’s house after school. They were playing in the room while the Applicant’s wife was scrapping coconuts outside. The Applicant is alleged to have sent his other daughter and her cousin brother out to climb betel nuts for him. He then entered the room where the complainant and his other daughter were playing and chased his daughter away. He then told the complainant to lie down on a mattress and remove her trousers and then lay beside her. He removed her panties and pushed his penis hard into her vagina causing her to cry out in pain. The Applicant is alleged to have stopped only when he heard her daughter and her cousin calling each other as they were returning to the house. The complainant did not tell anyone until about 5 days later when she started experiencing pain in her genitals and discharging smelly pus. She reported the matter to her mother and this led to the Applicant’s apprehension.
  
4.   The Constitution, s 42 (6) provides that bail for all offences except for wilful murder and treason is available unless it is against the interest of justice to do so.  The Bail Act, s 9 provides for the circumstances under which bail may be refused. Notwithstanding that, the Court still retains its power to grant bail (Re Keating v The State [1983] PNGLR 133).

5.   The Applicant relies primarily on two grounds for his application:

(1)	Overcrowding at Giligili which poses grave danger
of him contracting communicable diseases.

(2)	The welfare of this school aged children.

6.  The Applicant nominates two guarantors – a Police Officer and a CIS Officer. He says there is no likelihood of interference as he will reside with a relative namely Levi Donald at Daduwe Village which is some distance from Watuno where the alleged offence took place and where the complainant and other witnesses live.

7.  The State opposes bail on the ground that there is a real likelihood of interference with witnesses because of their close relationship with the appellant. The State also takes issue with the fact that the nominated guarantors are officers of the law. Counsel, Mr. Kupmain is concerned about the public perception on law officers becoming guarantors for persons accused of and charged with the sexual offences.

8.  The State, however, has not called or filed any supporting evidence to its objection or show that there is a real possibility or likelihood that the Applicant will interfere with its witnesses. Where the State alleges that there is a real likelihood or possibility of interference, a submission from the bar table is not sufficient.  The law is settled that the State must call evidence to substantiate a belief that there will be interference  (Re Keating v The State (supra.); Re Diawo [1980] PNGLR 148; Vele v The State (2003) N2701).

9.   Notwithstanding that, in my opinion there may indeed be a real possibility of interference with the complainant and the other witnesses.  This matter had been pre-trialled and apart from the complainant child, the other witnesses are the accused’s wife Judith Tetu and her elder sister Martina Tetu.

10.   The appellant says he will reside at another village while on bail.  The State has not shown, by relevant evidence, that even if he does reside there, there would still be a real likelihood of interference.

11.   I am mindful though that the accused might want to resume his conjugal rights with his wife and this can really cause some real problem to the State’s case.  The accused’s wife is a witness for the State and the fact that the applicant would be living in another village, within the same area or vicinity, does not diminish the reality of a real possibility or likelihood that the Applicant will interfere with her and the other witnesses including the complainant. 

12. I am also equally concerned about the fact that law officers have volunteered to be guarantors for the applicant.  I agree with Mr Kupmain that this paints a rather bad public perception that law officers could put themselves up to be guarantors for persons charged with this type of offence.  Of course, it would be a different story if an officer of the law were a relative of the applicant. In this case, the officers in question are not, and so, I would think that they are not acceptable guarantors.

13.  In conclusion, despite the fact that the State has not filed evidence to substantiate its objection, common sense should dictate that in circumstances such as this, particularly when the complainant and witnesses are family members including the spouse of the Applicant, there would definitely be a real likelihood of interference. Furthermore the interest of justice will not be served if bail were to be granted. 

14.   For those reasons, bail is refused.

Ordered accordingly,

_______________________________________________________________
L B Mamu, Public Solicitor	:  Lawyer for the accused
P Kaluwin, Public Prosecutor	:  Lawyer for the State