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Wamil v State [2021] PGNC 341; N9185 (29 September 2021)

N9185

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 325 OF 2021

MICHAEL WAMIL

V

THE STATE

Waigani: Wawun-Kuvi, AJ
2021: 28^th & 29^th September

CRIMINAL LAW-TRIAL-Bail Act-Rape within marriage- Section 347 of the Criminal Code- Declaration of innocence and family considerations- Continued detention justified
Cases Cited:

Fred Keating v The State [1983] PNGLR 133
Nokue v State [2018] PGNC 451; N7566
Philip Maru and Arua Oa [2001] N2045
Re Bail Application by Hombi [2010] N4080
Re Bail Application by Paul Louis Kysely [1980] PNGLR 36
Steven v State [2019] PGNC 64; N7796
Theo Yausase v The State (2011) SC1112

Legislation

Bail Act 1977
Criminal Code (Ch 262)

Counsel

Ms Alice Kimbu, for the Applicant
Mr Dale Digori, for the State

RULING

29^th September, 2021

1. WAWUN-KUVI, AJ: This is an application for bail pursuant to section 4 and 6 of the Bail Act 1977 and section 42 (6) of the Constitution.
   
2. The applicant is charged with two counts of rape against his wife contrary to section 347 of the Criminal Code (Ch 262((the Code). The offences are alleged to have occurred on 1 March 2020 and 5 August 2021.
   
3. It is alleged that on 1 March 2020, the applicant sexually penetrated his wife without her consent by inserting an object namely a metal plate into her vagina. And that on 5 August 2021 he again sexually penetrated his wife without her consent by inserting an object, namely a gun barrel into her vagina.
   
4. The applicant has been in police custody since his arrest. He seeks bail on the ground that the State has not established any of the matters under section 9 of the Bail Act 1977.
   
5. Section 42 (6) of the Constitution provides that a person charged with an offence, other than wilful murder or treason, is entitled to bail at any time prior to acquittal or conviction. This entitlement is however subject to the interest of justice.
   
6. Section 9 of the Bail Act 1977 provides general guidance in the determination of whether, bail should or should not be granted. In the event the State opposes bail, it should show that one or more grounds under section 9 apply.
   
7. When considering factors under section 9 of the Bail Act, the Court is not bound to apply the technical rules of evidence and may act on any information available to it.^[1]
   
8. The State has established that the alleged offence concerns a serious assault with the use of a firearm pursuant to sections 9(1)(c)(i), and (iii) of the Bail Act 1977.
   
9. The allegation indicates a very serious assault against the applicant’s wife with the use of objects including the barrel of a firearm being inserted into her vagina. In Steven v State [2019]^[2] it was held that sexual penetration without consent was a serious assault. The Court stated:
   

“Serious assault” is not defined in the Bail Act 1977 but s. 243 of the Criminal Code defines an assault as the direct or indirect striking, touching or moving, or otherwise applying of force to the person of another, without consent, or with consent if the consent is obtained by fraud. In The State v Andrew Tovue [1981] PNGLR 8 it was held that the accused, a traditional healer, assaulted the victim by convincing her that sexual penetration had the ability to cause pregnant women to give birth more quickly. In the circumstances the consent was obtained by fraud and the penetration constituted an assault for the purposes of s. 243. “

10. I am also satisfied that the applicant is likely to interfere with witnesses pursuant to section 9 (1) (f) of the Bail Act 1977. The victim is the accused own wife. The applicant’s statement at paragraph 58 that “there is no threat of confrontation between him and the victim’s family”, is a contradiction to preceding pages of his affidavit. Where he states that there is animosity between, him and the victim’s father and that the victim’s father is alleged to have assaulted him at the time of arrest. And that the victim’s family have not allowed her to return to him. He is adamant that the allegations are not true and that his wife is being influenced and coerced by her family members especially her father.
    
11. The word “likely” in section 9 (1) (f) was defined to mean likely in the sense of a tendency or a real possibility and does not mean “more than likely”, “probably” or “very likely”^[3]. Considering the factors alluded above, I am of the view that there is a real possibility that the applicant will interfere with the victim.
    
12. However, the Court still has a discretion to grant bail despite one or more of the considerations being established. The Applicant must establish that his continued detention is unjustified.^[4]
    
13. The applicant protests his innocence. The question of innocence is not a matter for the Court at this stage. see Theo Yausase v The State (2011) SC112 and Nokue v State [2018] PGNC 451; N7566 (14 November 2018).
    
14. The applicant states that he has seven children that require his care and attention. Family suffering and lack of parental support are consequences for being arrested and detained for a criminal offence and is not a ground for bail. As the Court stated in Philip Maru and Arua Oa [2001]^[5]:
    

“.... it is a common claim by all bail applicants that their family will suffer unless they are released from bail. There is the presumption of innocence on the one hand and on the other hand is a presumption that a legitimate process has been set in motion on some proper legal basis. If an applicant’s family is put to some suffering of some sort by their arrest and detention, it is their own doing. The effects of their conduct should not form the basis for an exercise of discretion vested in a bail authority, to decide whether or not to grant.”

15. Similar statements have been made in numerous decisions. It is accepted that family consideration is not a ground for seeking bail. see also Re Bail Application by Hombi [2010] N4080 and Yasause v The State [2011]^[6].
    
16. There is an additional consideration. The circumstances of the applicant’s case demonstrate that the offence is one of aggravated rape under section 347C of the Code, that the applicant was armed with a firearm at the time of the offence. Aggravated Rape is a capital offence. The victim is the applicant’s own wife. In The State v Beko John Paul (1988) N1890, the Court held that the nature of the offence itself may operate as a sufficient factor to refuse bail unless the court is convinced that the continued detention is not justified.
    
17. The Applicant has failed to demonstrate that his continued detention is unjustified.
    
18. The application is thereby refused.
    

Orders:

19. The Orders of the Court are:
    
    1. The Application for bail is refused.
    2. Warrant of Remand is issued for Bomana Correctional Institution.
    3. The applicant shall be immediately brought up to the Bomana Correctional Institution.

________________________________________________________________
Kimbu Lawyers: Lawyer for the Applicant
Office of the Public Prosecutor: Lawyer for the State

^[1] Fred Keating v The State [1983] PNGLR 133
^[2] PGNC 64; N7796 (8 April 2019)
^[3] Re Bail Application by Paul Louis Kysely [1980] PGNC 61; [1980] PNGLR 36 (14 April 1980)
^[4] Keating, supra and Yasause v The State [2011] PGSC 15
^[5] N2045
^[6] supra