N10157

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA 98 OF 2023

ELVIS RUMINTS

V

THE STATE

Waigani: Berrigan, J
2023: 13th & 14th March

CRIMINAL LAW – Bail – Change of circumstances – Alleged rape of 17 year old girl by sister’s 37 year old husband - No change of circumstances established - Application refused. 

Cases Cited
Re Thomas Markus (1999) N1931
In re application for bail by Bobby Selan (2009) N3690
Re Bail Application by Bernard Uriap (2009) N3999
Ako Toua v State (2023) N10148

References Cited
Sections 6, 7 and 9 of the Bail Act, 1977
Section 347 of the Criminal Code 

Counsel
Mr Sasingian, for the Applicant 
Ms Suwae, for the State

DECISION ON BAIL APPLICATION

14th March, 2023

1.	BERRIGAN J:  This is an application for bail following a previous application before Acting Justice Wawun-Kuvi on 2 March 2023, which was refused.   

2.	The right to make a fresh application to the National Court is not expressly conferred by the Bail Act.  It is well settled, however, that a person who is refused bail by a judge of the National Court may, if there has been a change in circumstances, make a fresh application for bail to the same or another judge of the National Court but only if the change of circumstances is relevant to the ground of refusal on the first occasion.  This principle is derived from ss. 6 and 7 of the Bail Act, 1977: Re Thomas Markus (1999) N1931; applied In re application for bail by Bobby Selan (2009) N3690; and Re Bail Application by Bernard Uriap (2009) N3999. 

3.	In short, there must be a change of circumstances and the change in circumstances must normally relate to the reasons for refusal of bail under s. 9 of the Bail Act in the first application: Re Bobby Selan applying Re Thomas Markus.  It is incumbent on an applicant who has earlier been refused bail to: notify the court of the earlier refusal; provide the court with a copy of the reasons for refusing bail; present evidence of a change in circumstances; and show how the change is relevant:  Re Bobby Selan applied Re Bernard Uriap, supra.  The change must also be material such that it warrants reconsideration of the earlier decision to refuse bail.   
  
4.	Returning to the present application, the applicant has been charged with two counts of rape contrary to s 347 of the Criminal Code. 

5.	It is alleged that on 23 February 2023 the applicant was drinking with his wife, Courtney, in a vehicle outside their rental unit, when he said he was going inside to use the toilet.  Inside the unit was Courtney’s 17 year old sister. It is said that he told the alleged victim that her sister had agreed that he would have sex with her.  The alleged victim immediately walked out of the unit and confronted Courtney with what the applicant had said. Courtney was shocked and they all went back into the unit.  Once inside the applicant physically assaulted Courtney and chased her out of the unit before sexually penetrating the alleged victim twice without her consent, once using his penis and once using his fingers, whilst using physical force to restrain her, whilst she resisted and pleaded with him to stop, and causing significant bleeding.  Courtney went to Gerehu Police Station where she reported the matter. 

6.	Bail was refused on the basis that the offences concerned alleged serious assault and threats of violence, pursuant to s 9(1)(c)(i) and (ii) of the Bail Act and that the applicant was likely to interfere with witnesses pursuant to s 9(1)(f) of the Bail Act.  

7.	The applicant submits that there has been a change in circumstances since bail was refused.  He effectively relies on four affidavits.  The first is an affidavit sworn by his former lawyer, which itself attaches two affidavits, the original affidavit of investigating officer, Detective Constable, and Officer in Charge of Minor Crimes at Gerehu Police Station, Turi Kuruwa, sworn 25 February 2023, opposing bail, and a further affidavit sworn by the same officer dated 2 March 2023.  

8.	In his second affidavit DC Kuruwa says that whilst he strongly opposed bail at the District Court and again before Wawun-Kuvi AJ, he did so on the basis that the applicant “brutally” penetrated the alleged victim and that he was a violent and dangerous man but that fresh evidence and information now indicates otherwise.  In particular, the medical report reveals that the alleged penetration “was not brutal as earlier portrayed” and fresh witness statements indicate that the applicant’s wife “deliberately set up her husband and defendant to commit the alleged offence and therefore she is also a suspect in this investigation and will soon be arrested and charged as an accomplice”.  

9.	The fourth affidavit the applicant relies on is that of Catherine Eva.  She is the mother of the alleged victim.  She says that she is aware of “the intimate relationship” between the alleged victim and the applicant.  She says that when her other daughter, Courtney, became aware of the relationship it was she who assaulted the alleged victim.  Courtney reported the matter to police because she wants to get back at the applicant after he won custody of their two children. 

10.	The State opposes the application. It relies on an affidavit of the alleged victim.  

11.	It is not for this Court to determine the merits of the case.  If it was clearly established that the alleged facts upon which the initial refusal was based were false or fundamentally different in some way that would give rise to a change of circumstances warranting reconsideration of bail. But it must be emphasised that for obvious reasons this is not the time for the weighing of different versions of events.   

12.	I am not satisfied in this case that there has been a change in circumstances having regard to the following matters.   

13.	Firstly, it is clear that the investigating officer does not suggest that the two counts of alleged sexual penetration without consent did not happen.  

14.	Secondly, I am not sure what is meant by the statement that the rape was “not brutal” as first believed.  No medical report is produced by the officer to substantiate this claim and he is not in a position to interpret the medical evidence.  A sexual assault does not need to involve physical violence: Ako Toua v State (2023) N10148. Regardless of the officer’s initial characterisation of the alleged offences, the alleged facts in this case remain the same – sexual penetration without consent, involving the use of force, and threats of violence. Bail applications are decided on the alleged facts not the description given to them by an investigating officer.  The offences remains ones involving a serious assault and threats of violence for the purpose of s 9(1)(c)(i) and (ii) of the Bail Act.     

15.	Thirdly, as for the statement by the investigating officer that Courtney set up her husband “to commit the alleged offence”, it is unclear what he means by that. Does he mean that she goaded the applicant into raping her own 17 year old sister?  How likely is it that she would do that?  If she did, it would implicate her in the alleged offences and would not in any way excuse the applicant’s alleged offending.  It would instead aggravate it. Furthermore, the investigating officer provides no basis for that conclusion. 

16.	I am also not impressed by the affidavit of the alleged victim’s mother. It is of limited weight. She does not expressly say that she was present at the time of the alleged offence but simply that she “knows” that the applicant would not assault the alleged victim.   If she is saying that she was present but Courtney assaulted and stripped the alleged victim before she and Courtney watched the applicant sexually penetrate the alleged victim then that would not only be shocking but is hardly indicative of consent, and confirms threats of violence. 

17.	I have also had regard to the affidavit of the alleged victim sworn 9 March 2023. It is simple but compelling.  She says that there was indeed a brief relationship with the applicant in October/November last year but that she ended the relationship.  The applicant picked her up in mid-November and took her along the backroad from 9 Mile to Gerehu and became very angry when she told him that she did not want to stay in the relationship. He locked the doors to the vehicle but she eventually managed to unlock and open her door.  When she attempted to jump he finally stopped threatening her and told her that he would take her home.  The situation calmed down and he took her home. After that she ended all communication with him.  Having regard to those circumstances and the circumstances of the alleged offence she is terrified of the applicant and feels threatened by him.  

18.	In addition, the following undisputed facts remain relevant.  The applicant does not deny that sexual penetration took place albeit that he claims that it was consensual. At 37 years of age, the applicant is 20 years older than the 17 year old alleged victim. The alleged victim is the younger sister of his wife.  It was alleged that the applicant had been drinking at the time of the alleged offence and at the time of his arrest, at 715 am the following morning, the applicant was so drunk that he could not be interviewed until the next day, 25 March. Those matters make it more likely, not less, that any alleged penetration was not consensual. 

19.	I also note further that the investigating officer does not resile from the statement in his first affidavit that the applicant, whilst in police custody, pointed his right hand at Courtney and threatened the action of shooting her.  Regardless of his drunken state that is a threat or attempt to intimidate a State witness and is a relevant consideration.  

20.	Having regard to all of the above matters, the applicant has not established that there has been a change of circumstances.  

21.	On the contrary, whilst I make it clear that the allegations remain to be proved, the materials establish that the alleged offence remains one involving a serious assault and threats of violence for the purpose of s. 9(1)(c)(i) and (ii) and of the Bail Act, respectively.   

22.	In addition, having regard to the relationship of the applicant to the alleged victim and the complainant, the concerns expressed by the alleged victim, her age, the nature of the alleged offences, the position taken by her mother, and the threat directed at Courtney, the applicant has failed to demonstrate that there is no longer a real likelihood that the applicant will interfere with State witnesses pursuant to s 9(1)(f) of the Bail Act.  I am satisfied that a real risk remains. 

23.	The application is accordingly refused.

24.	Finally, I am very concerned about the continuing involvement of the investigating officer in this matter.  The matter is to be immediately referred to the Officer in Charge of the Family and Sexual Violence Unit at Boroko Police Station, where the matter should have been referred in the first place, so that it might be conducted by officers with the requisite skills and experience.  

Orders accordingly   

________________________________________________________________
Sasingian Lawyers: Lawyer for the Applicant
Office of the Public Prosecutor:	Lawyer for the Respondent/ State