N4723 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP. 176 OF 2012

KENNETH TIDIKOS

-V-

THE STATE

Wabag: Gauli, AJ
2012: June 22.

PRACTICE AND PROCEDURES – Bail application – Bail Act, ss. 4, 6 & 9 – Constitution, s. 42 (6) – Charge with sexual penetration – Criminal Code, section 229A – Offence bailable – No objections by prosecutor – Court still has the duty to ensure if any of the consideration in s. 9 of the Bail Act are present – If one of the considerations in section 9 is present that will not be the ground to refuse bail. 

Cases Cited: 

Fred Keating v The State [1983] PNGLR 133

Counsel:

Public Solicitor, for the Applicant
Public Prosecutor, for the State / Respondent

COURT'S RULLING ON BAIL. 

1.	GAULI AJ: The accused was charged for sexual penetration pursuant to section 347 (1) of the Criminal Code. He is alleged to have sexually penetrated his cousin sister on 21st of September 2011. He is in custody since his arrest on the 22nd of September 2011. He now applied for bail under sections 42 (6) of the Constitution and sections 4, 6 and 9 of the Bail Act. 

2.	Bail is a Constitutional right granted by section 42 (6) of the Constitution to persons charged with any offence except for those charged with treason or wilful murder. To those charged with treason or wilful murder, bail is not automatically available as of right. The application for bail falls under two categories. The first category applies to those charged with treason and or wilful murder. The second category applies to those charged with other offences. The present case falls within the second category therefore bail is a matter of a right. The offence of sexual penetration is bailable. And since bail is as of right to the applicant, the prosecution has the burden to prove why the applicant should be refused bail. And section 9 of the Bail Act provides the grounds upon which bail may be refused. However, it was held in Fred Keating v. The State [1983] PNGLR 133, that the existence of one or more of the considerations in s.9 of the Bail Act being present is not the reason to refuse bail. 

3.	In the present bail application the prosecutor has not objected therefore none of the considerations in section 9 of the Bail Act for refusing bail are applicable. Where the prosecutor does not object to the bail application, the court still has the duty to consider if any of the grounds under section 9 are present to refuse bail depending on the circumstances in which the alleged offence was committed and the offender's personal circumstances. 

4.	The applicant is from Teremanda village in Wabag and he is 16 years old at the time of this application. At the time of the alleged offence, he was 15 years old and he was in grade 5 at Yai Primary school in Wabag. He is a juvenile offender. His continued detention at Baisu Correctional Institution will not only expose him to corruptive influences but he will also be denied of his right of education.

5.	 His parents are both alive and he will live with his parents at Teremanda village, which is just outside Wabag town. He is therefore not likely to abscond bail. This is his first time to be charged with any offence. The alleged offence did not involve serious assault, a threat of violence nor was he in possession of firearms. He is not likely to commit any indictable offence if released on bail. However, he is likely to interfere with the State's witnesses particularly the victim because both are related as cousins. But this alone will not be a sufficient ground to refuse bail, Fred Keating v. The State (above) applied. 

6.	 The applicant has provided two guarantors namely Mr Naugarip Alzokol who is a Teremanda Village Court Magistrate. He is willing to pledge K300.00 towards bail as surety. The other guarantor is Mr. Joshua Ben who is the Pastor of the Christian Revival Church at Teremanda. Both guarantors are reputable and respectable people in the community. I have every trust in the guarantors that they will ensure the applicant complies to his bail conditions. 

7.	From all that I have alluded to above, I am satisfied that the applicant is a suitable person to be granted bail. And I do grant him the bail with conditions. 

ORDERS:

8. The applicant is granted cash bail of K500.00 with CONDITIONS that: 

(1)	 He must remain at Teremanda village pending the hearing of his charge. 

(2)	He is not to re-offend.

(3)	Not to interfere with the State's witnesses. 

(4)	Not to have any contact with the victim.

(5)	Report to the Wabag National Court Assistant Registrar on Fridays of each week between 9.00am and 3.00pm.

9. Matter adjourned to 02/07/12 for Call-Over. 
____________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State