N10182

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 115 OF 2023

ELVIS RUMINTS

V

THE STATE

Waigani: Linge, AJ
2023: 28th March

CRIMINAL LAW – Bail – Alleged rape of 18 year old by 37 years old brother-in-law - change of circumstances – victim recant of allegation of rape - bail granted. 

Cases Cited: 
Re Thomas Markus (199) N1931
Re Bobby Selan (2009) N3690
Re Bernard Uriap (2009) N3999

Counsel:

Mr. F. Kirriwom, for the Applicant 
Ms. M. Tamate, for the State

DECISION ON BAIL APPLICATION
29 March 2023

1.	LINGE AJ: A ruling on an application for bail following an earlier application before Justice Berrigan which was refused.  The proceeding is still in the investigation stage.  The offence for which the applicant is being investigated is rape.

2.	The applicant has been detained at the Metropolitan Boroko Police Cells since 24 February 2023.  He will next appear for his committal hearing on the 14 April 2023.

3.	The application is made pursuant to s.4 (1) (b) and s. 6 of the Bail Act and s.42 of the Constitution.  The Bail Act does not expressly confer a right to make fresh application to the National Court following refusal. However, the practice of the Court has developed in which an applicant can plead change of circumstances as the basis for new bail application.

4.	In her written judgment when refusing the earlier application, Her Honour Justice Berrigan held that while the allegations remain to be proved, the materials establish that the alleged offence remains one involving serious assault and threats of violence for purposes of s.9 (1) (c) (i) and (ii) of the Bail Act respectively. She also held that the applicant failed to demonstrate that there is no longer a real likelihood that he will interfere with State witness pursuant to s. 9 (1) (f) of the Bail Act. 

5.	The issue for my consideration in this application is whether the National Court is the bail authority for purposes of considering a change of circumstance on the part of the applicant.

6.	The law on application for bail after refusal was aptly set out in Re Thomas Markus (1999) N1931. A person who is refused bail by the National Court may make fresh application to the same or another judge of the National Court if there is a change of circumstances, but only if the change circumstances is relevant to the grounds of refusal on the first occasion. It is necessary to revisit the Judge’s earlier reasons for refusing the bail with reference to s,9 (1) of the Bail Act.

7.	In Re Bobby Selan (2009) N3690 in applying Re Thomas Markus (supra) the National Court held that 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.  An applicant who has earlier been refused bail must do the following: -

 	(i)	notify the court of the earlier refusal; 
(ii)	provide the court with a copy of the reasons for refusing bail; (iii)	 present evidence of a change in circumstances; and
(iv)	show how the change is relevant: see Re Bernard Uriap (2009) N3999.  

8	The change must also be material such that it warrants reconsideration of the earlier decision that refused bail.

9.	Mr. Kirriwom for the applicant submits that this Court’s earlier refusal of the application was based on s.9 (1) considerations or grounds of: 

(a)	serious assault; and 
(b)	threat of violence.

10.	He contends that the situation now is completely different.  The change circumstance is the recanting of the victim’s statement that the alleged rape of 23 February 2023 was consensual in nature. He submits that this is a material change in circumstance since the last refusal which warrants the Court’s reconsideration of its earlier decision. 

11.	The fact that the alleged victim of rape has changed her statement to that of consensual sexual encounter goes to the root of this case as to whether a charge of rape can be safely preferred. Mr. Kirriwom submits that no offence was committed by the applicant, Elvis Rumints and therefore any likelihood of serious assault and threat of violence is no longer a matter for consideration by the Court. 

12	Ms. Tamate for the State opposed the application. She submits that since service upon the State on Thursday 23 March 2023 she tried to obtain instructions from the investigating officer and others but to no avail. As a result, no affidavit was filed. 

13.	The State maintains that the earlier refusal by Acting Justice Wawun Kuvi and Justice Berrigan must remain. Ms. Tamate submits that the change of circumstance is questionable. The victim is a State witness and that she should have rightly made contact with the State lawyers with whom she should have raised the issue with them and not the defence counsel.  

14.	Counsel also submits that the change circumstances go to the merit of the case and must be refused.

15.	In this case the change circumstance is elaborated in and is contained in the letter from the alleged victim Bernadine Evaea to Turi Kuruwa, A/OIC Minor Crimes, Gerehu Police Station.  The letter is annexed to and forms part of the affidavit of Bernadine Evaea and was cc to the Police Prosecutor, Elvis Rumints or his legal representative and the Public Solicitor.

15.	At paragraph 5 it states, “I can now say that the sexual event on the night of Thursday 23 February 2023 at Rainbow Missionary Home, Gerehu with Elvis Rumints, was actually consensual.  But because my big sister, Courtney Ambon was present and that she and Elvis Rumints had just rekindled their relationship, I felt bad and also embarrassed for my big sister.  I did not want my sister to know and be disappointed, so I agreed that it was rape when it was not.”

16.	Bernadine Evaea filed an affidavit dated the 24 March 2023 which is tendered in Court.  At paragraph 8 of the affidavit she deposes, “After consultation with my parents, I informed them that I had in fact had sexual relations with the dependant, however, this was done with full consent.”

17.	In support of the application the defence counsel Mr. Kirriwom also  filed an affidavit deposing as to how he came to be aware of the alleged victim’s change of circumstance.

18.	In his affidavit at paragraph 5 Mr. Kirriwom deposes that on the 23 March 2023 he received a phone call from a Mr. Tore Eavae the father of Bernadine Eavae who was with his daughter at the Boroko Police Station, Sexual Offence Squad office to deliver a letter and if he could attend there also which he did at 4.00 pm that day and he was served a copy. The letter was from Benedine Eavae which she and her father also served on Senior Constable Peter Samghey, the Police Prosecutor.  

19.	I am satisfied that Mr. Kirriwom acted appropriately to facilitate this application after being served a copy of the above-mentioned letter. There is no impropriety on his part. Since the case is still in the investigating stage it is proper to serve a copy on the proper Police personnels including the Police Prosecutor.

20.	In as far as bail is concern, the object of the Bail Act is to give effect to s.42 (6) (liberty of person) of the Constitution which provides that “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 and to acquittal or conviction unless the interest of justice otherwise require.” 

21.	Clearly the applicant who is on detention since 24 February 2023 is entitled to bail…unless the interest of justice otherwise require. The term interest of justice is not a term of art nor defined. However, I am guided by the constitutional provisions of s.155 (4) “…to do justice in the circumstances of the case” and s.158 (2) “…the courts shall give paramount consideration to the dispensation of justice”    

22.	To my mind interest of justice entails the Court exercising its discretionary power within the ambit and letter and intent of the law. The intent of the Bail Act is clear, and I must exercise the Court discretionary power taking the above factors into consideration. The National Court is the bail authority for the alleged crime of rape pursuant to s.347A (1) of the Criminal Code.   

23.	Here the applicant was arrested by the Police and detained at the Boroko Police Metropolitan cell upon a complaint by Courtney Ambon the elder sister of the alleged victim and wife of the applicant. 	The Summary of Facts states  that “Courtney Ambon caught a cab to Gerehu Police Station and reported the complaint”. 

24.	The exact nature of the complaint made by Courtney Ambon to the Gerehu Police will never be known by the National Court and be it as it may, the Court will assume that the Summary of Facts is derived from the complaint by Courtney Ambon to the Gerehu Police Station. It makes her as a potential prosecution /State witness. If that was the case, it follows that part of her evidence is hearsay.    

25.	As for the alleged victim, Bernadine Evaea, at this point her position is that she is not the complainant. Her letter dated 23 March 2023 which is annexed to her affidavit of 24 March 2023 states she was involved in a consensual sexual encounter with the accused on the 23 February 2023.

26.	Obviously this is a material change to the alleged victim’s position. On the face of it, this nullifies the initial charge of rape. The applicant relies on this change of circumstance to seek bail after being refused by this Court in his earlier application on the 14 March 2023. 

27.	I note the State’s opposition to bail pursuant to s.9 (1) of the Bail Act in particular on the grounds of the alleged offence consisting of serious assault and on the ground of applicant likely to interfere with witnesses or complainant. 

22.	It is my considered view that with the changed position taken by the alleged victim, the consideration of the two (2) exceptions the subjects of earlier refusal become purely academic.

23.	In the end I grant bail to the applicant with the usual terms in the Bail Certificate.  
        
__________________________________________________________________
Public Prosecutor	: 	 Lawyer for the State	
Public Solicitor	:  	Lawyer for the Defendant