N10148

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO 85 OF 2023

AKO TOUA

V

THE STATE

Waigani: Berrigan, J
2023: 3rd March

CRIMINAL LAW – Bail – S. 9 Bail Act, 1977– Meaning of “serious assault” under s 9(1)(c)(i) – Includes sexual assault and rape – Allegations of abduction, deprivation of liberty, enforced drug use and rape - Principles considered -  Continued detention justified.

Cases Cited:

Fred Keating v The State [1983] PNGLR 133
Theo Yausase v The State (2011) SC1112
Steven v State (2019) N7796

Counsel:

Mr E Sasingian, for the Applicant 
Ms S. Patitea, for the State

DECISION ON BAIL APPLICATION

3rd March, 2023

1.	BERRIGAN J:  This is an application for bail pursuant to Section 6 of the Bail Act, 1977 and Section 42(6) of the Constitution.

2.	The applicant is Ako Toua, a Director of Water PNG and the Deputy Chairman of the Water PNG Board.  His application is supported by two potential guarantors, both of whom are senior businessmen.

3.	It is alleged that on the afternoon of 14 February 2023 the applicant’s co-accused, Vanessa Ako Gami, called the complainant, Annette Rondeau, asking her to meet at the applicant’s house. It is alleged that the applicant and Vanessa are partners.  Later Vanessa called and asked the complainant to go to her mother’s house instead. The complainant and another person, Joshua Curtis, went there together by vehicle.  Vanessa asked Joshua to check a mechanical issue with her vehicle, which he did, and they stayed there telling stories til 10 pm. During the afternoon and evening Vanessa made several calls to the applicant and told him that the complainant and Joshua were there with her.  At about 12:30 am the applicant arrived with two other persons, a police officer named Lawrence Sausau, and Maxwell Moses. Moses remained in the vehicle.  Sausau was armed with a high-powered rifle and the applicant was armed with a factory-made pistol.  They approached the complainant and Joshua, directed the weapons at them, and accused them of illegally using the applicant’s visa card. The complainant and Joshua denied any such knowledge.  Lawrence picked up an axe and hit Joshua with the blunt side of it on his shoulder.  The applicant hit Joshua on the back of his head with the barrel of the pistol.  They continued to interrogate them, removed their phones and threatened to kill them.  At one point the complainant and Joshua were separated.  The complainant was taken inside to a laundry area. Joshua was further threatened before being released. He was told to drive home and not report the matter to anyone.  He drove off leaving the complainant at the house. The complainant was forced into a car and driven to the applicant’s house.  There it is alleged that she was taken into the master bedroom. She was offered methamphetamine (ice) to smoke which she refused. The applicant insisted and she took it out of fear.  The applicant and Vanessa asked her if she had had threesome sex before following which Vanessa sexually touched and then sexually penetrated her without her consent.  She was held against her will for five days during which time she was forced to take drugs.  Eventually her family raised the alarm with police when they could not locate her.  She was rescued from the applicant’s house by police who apprehended the applicant, Vanessa, Lawrence Sausau and others.  An MP 5 rifle held by Lawrence Sausau together with 9 mm bullets and drug smoking paraphernalia were retrieved.  The applicant was subsequently charged with abduction, deprivation of liberty and two counts of rape, contrary to ss 350(1)(a)(i) and (3), 355(b) and 347 of the Criminal Code respectively.

4.	It is well established that a person arrested and charged with an offence, other than wilful murder or treason, is entitled under s. 42(6) of the Constitution to bail at any time prior to acquittal or conviction unless the interests of justice otherwise require.   In considering the grant or refusal of bail in such cases the court is to be guided generally by s. 9 of the Bail Act, 1977.  If the State opposes bail in such a case it should establish that one or more of the circumstances in s.9 apply.  In considering a matter under s. 9 of the Bail Act, 1977 a court is not bound to apply the technical rules of evidence but may act on such information as is available to it:  s 9(2); Re Fred Keating v The State [1983] PNGLR 133.   

5.	The State opposes bail on the basis that the allegations concern threats of violence, possession of a firearm and alleged use of a narcotic drug pursuant to s9(1)(c)(ii) and (iii), and 9(i) of the Bail Act.  Its submissions are supported by affidavits from Inspector Apollos Terry, Officer in Charge, Internal Investigating Unit, Boroko Police Station, who is overseeing the investigation, and the officer immediately responsible for the investigation, Constable John Pii. 

6.	Let me make it very clear that the allegations remain to be proved and the applicant is entitled to the presumption of innocence.  

7.	Nevertheless, the State has established on the face of the allegations that the alleged offences concern threats of violence, possession of a firearm and the alleged use or possession of a narcotic drug other than for personal medical use under prescription pursuant to s 9(1)(c)(ii) and (iii), and 9(i) of the Bail Act, respectively.  

8.	“Serious assault” under s 9(1)(c)(i) is not defined under the Bail Act.  As a matter of common sense allegations of rape concern serious assault and the consideration under s 9(1)(c)(i) also applies.  If anything more be said I note that by definition, a person who directly or indirectly strikes, touches or moves, or otherwise applies force to, the person of another, without his consent, or with his consent if the consent is obtained by fraud is said to assault that other person, and the act is called an assault for the purpose of s 243(1)(a) of the Criminal Code.  Sexual assault or rape clearly fall within that definition.   See also Steven v State (2019) N7796.

9.	Despite the fact that one or more of the circumstances in s. 9 of the Bail Act has been established the Court is not obligated to refuse bail.  The Court retains a discretion.  The applicant must in such cases demonstrate, however, that in all the circumstances his continued detention is not justified: Keating, supra.  

10.	The applicant seeks release on bail on the basis that his Constitutional right to privacy and his protection under the Search Act, were both breached by police who raided his home without a search warrant.  He was held in custody for four days without charge, two days longer than permitted. Methamphetamine was not found at his premises. A factory-made pistol was not found at his premises. Vanessa is not his partner, she just lives at his house and is friends with the complainant. She was visiting at the time of the alleged offences. He is married to another person, who provided an affidavit to this effect.  As to the alleged abduction and deprivation of liberty of the complainant, his wife and children live at the house and it did not happen.  He has suffered Type 2 diabetes since 2003 and hypercholesterolemia and needs to be on bail for his health.  Personal items were stolen by police from this property.

11.	The applicant maintains his innocence and it is apparent that a number of matters raised by him on this application relate to that claim. He is, of course, entitled to maintain his innocence and is presumed to be so but the question of whether or not an applicant is innocent is not a matter for this court:  see Theo Yausase v The State (2011) SC1112.  Whilst the Supreme Court did express the tentative view in that case that if it appeared that the applicant had been charged without any proper legal basis that might amount to a circumstance warranting bail that issue does not apply here on the alleged facts.  Furthermore, whilst not necessary to my finding, I note that there appears to be no dispute that the complainant was found at the applicant’s home, together with 9 mm pistol ammunition, drug smoking paraphernalia and a high powered weapon. 

12.	I reject entirely any suggestion that the allegations of rape are without merit because there is no reference to a medical report in the alleged facts and that on the alleged facts the applicant was only present at the time and was not the actual perpetrator.  I reiterate that I am not here to determine the merits of the case and questions of participation pursuant to s 7 of the Criminal Code are matters for trial but it is clearly alleged that the applicant aided, counselled or procured the rapes.  It is not essential for the summary of facts to refer to medical treatment.  Moreover, both this submission and the State’s failure to refer to s 9(1)(c)(i) of the Bail Act demonstrate a common misconception.  Sexual violence does not require physical violence. It is alleged here that the sexual conduct was not consensual but coerced in circumstances where the complainant was detained, under threats of violence, and under the influence of drugs at the time.  

13.	The State concedes that police entered the applicant’s premises and seized certain property without search warrant but it submits that the purpose of the raid was to rescue the complainant and I expect it will argue in future proceedings that the seizure of the property was permitted in those circumstances.  The applicant submits that police had a number of days to apply for a search warrant and there is limited information about what immediately preceded the raid.  It is not necessary for me to determine whether or not there were exigent circumstances warranting the raid.  Nor is it necessary for me to determine questions concerning the admissibility of any items seized during the raid. Those are matters properly considered at any trial.  Furthermore, any breaches must be balanced against the nature and seriousness of the allegations in determining the question of bail which is the only question before me.  In my view it is neither necessary nor appropriate to grant bail on those grounds: s 57 of the Constitution applied.  Furthermore, I am not satisfied that those matters demonstrate that the continued detention of the applicant is not justified. 

14.	As for the contention that the applicant’s properties were damaged or stolen, this is a very serious allegation. It is also clear that the RPNGC is taking the matter seriously.  Upon receiving the applicant’s complaint the concerned officer has been removed from the investigation and since charged. That is entirely proper. The fact that properties were damaged or stolen is not in any event a matter that satisfies me that the applicant’s continued detention is not justified. 

15.	It is the case that the applicant was held for two additional days without charge.  That is regrettable but is apparently the result of the fact that the matter was transferred to the Internal Affairs Unit in accordance with police protocols as one of the co-accused is a police officer.   The applicant has since been charged. The delay cannot be regarded as inordinate and I am not persuaded by that fact that his continued detention is not justified. 

16.	A recent doctor’s report confirms that the applicant was diagnosed with Type 2 diabetes and high cholesterol in October 2021 (not 2003).  He is currently being treated for both conditions with medication.  It is submitted that he needs to be out on bail for dietary reasons and that the environment at Bomana Correctional Institution is not conducive to his condition. 

17.	I appreciate that the treatment of his conditions may be less than ideal whilst in custody.  The conditions are not immediately life threatening, however, nor are they uncommon.  Correctional Services is required and does treat those suffering both these and many other serious conditions whilst in custody.  In addition, the applicant’s medical condition must also be balanced against the gravity of the alleged offending.  

18.	In summary, this case concerns very serious allegations concerning the use of firearms, abduction, and the deprivation of the complainant’s liberty over an extended period of days during which time she was allegedly forced to consume dangerous and highly addictive drugs and raped on at least two occasions. 

19.	In all the circumstances the applicant has failed to satisfy me that the matters relied upon, either in isolation or when taken together, establish that his continued detention is unjustified.

20.	Bail is accordingly refused.

Orders accordingly.
_______________________________________________________________
Sasingian Lawyers: Lawyer for the Applicant	
Public Prosecutor: Lawyer for the Respondent/ State