N7615

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 343 OF 2018

SAM KETENG KISSI

V

THE STATE

Waigani: Berrigan, J
2018: 7 December

CRIMINAL LAW – Bail – S. 9 Bail Act, 1977– Discretion - Continued detention justified.

Cases Cited:

Fred Keating v The State [1983] PNGLR 133
Kange v The State (2016) SC1530
Theo Yausase v The State (2011) SC1112

Counsel: 

Mr D Sopane, for the Applicant 
Ms Yiaggi, for the State

DECISION ON BAIL APPLICATION

7th December, 2018

1.    BERRIGAN J:  This is an application for bail pursuant to Sections 6 and 9 of the Bail Act, 1977 and Section 42(6) of the Constitution.

2.  The applicant is charged with a series of serious offences against three young girls, the first concerning the alleged abduction, deprivation of liberty, and sexual penetration of a 9 year old girl on 24 September 2018, followed by a similar offence against a 10 year old girl on 8 October 2018, and a further abduction on 25 October 2018 concerning another girl under the age of 16 years. Taken together the allegations concern offences contrary to ss. 350(1)(a)(i), 351(1), 355(a), 355(b) and 229A(1) and (2) of the Criminal Code (Ch. 262) (the Criminal Code).

3.   It is alleged that on 24 September 2018 the accused abducted a 9 year old girl walking home from school along Godwin Street, Gordons, Port Moresby, at about 12 midday.  He drove her to the rear of the Weigh Inn in Konedobu where he threatened to stab her with a knife, removed her clothes and sexually penetrated her vagina with his penis.  It is further alleged that just a few days later on 8 October 2018 the applicant abducted a 10 year old girl walking home from school in the company of friends, again in the vicinity of Godwin Street at about 2.30 pm.  Further, that he drove her to Kone Stadium, forcefully pulled her to the rear of the vehicle, removed her clothes and sexually penetrated her.  He then drove her to a location in East Boroko where he told her he would marry her and build her a house.  He then drove to the car park at KMC in East Boroko where he again allegedly sexually penetrated her.  At about 8 pm he dropped her at the Erima flyover.

4.   It is further alleged that on 25 October 2018 the applicant abducted yet another girl under the age of 16.  The girl managed to take hold of the steering wheel and force the vehicle from the road.  She escaped and reported the matter to the police.

5.  The applicant has been in custody since 25 October 2018.

6.  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, including for a person charged with offences such as in this 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:  Fred Keating v The State [1983] PNGLR 133.    

7.  The State has clearly established that one or more of the circumstances in s. 9 of the Bail Act apply.  The alleged offences concern serious assaults, threats of violence and in at least one case, possession of an offensive weapon, pursuant to s. 9(1)(c)(i), (ii) and (iii) of the Bail Act.  I am also satisfied that s. 9(1)(b) applies such that the offence alleged to have occurred on 25 October 2018 took place whilst the applicant was on bail for the offence alleged to have occurred on 8 October 2018.  I am further satisfied that given the close proximity of the offences and their brazen nature, the State has established that the applicant is likely to commit an indictable offence if he is not in custody, invoking s. 9(1)(d) of the Bail Act.  The applicant concedes that s. 9(1)(c)(i) applies and that s. 9(1)(d) may apply.

8.   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 refusal 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.  See also Kange v The State (2016) SC1530.  

9.  I have had regard to the following matters, which are contained in the applicant’s affidavit.
 
10.   The applicant protests his innocence.  The question of whether or not the applicant is innocent is not a matter before this court:  see Theo Yausase v The State (2011) SC1112.  

11.   He also argues that he has just started a legal practice on his own and that his continued detention will impact on his client base and business.  As a sole practitioner that may well be the case, nevertheless, this in my view is not sufficient on its own to establish that his detention is unjustified.  If it were, all sole practitioners, lawyers, doctors and other like professionals would be able to rely on the fact that their practices would be undermined if detained.

12.   The applicant argues that his incarceration will affect his family, including his 2 children.  I accept that it may.  The courts in this jurisdiction, however, have made it clear that the impact of detention on an applicant’s family is an unfortunate but inevitable consequence of the criminal process and not normally a matter warranting bail.  Moreover, the fact that such serious offences are alleged to have been committed against children, and bail would see him return to a home where there are children, is also relevant to my determination that the applicant has failed to establish that his continued detention is unjustified on this ground.  

13.   Finally, the applicant submits that his detention in Bomana Correctional Institution is hazardous, torturous and unbearable.  I agree with the submission that Correctional Services (CS) has a responsibility to ensure that the applicant is held in accordance with the principles of humanity.  That is, of course, part of its mandate.  In this regard the applicant submits that his medical condition is worsening as a result of the conditions in which he is being held at Bomana.   In support he relies upon a letter from a Community Health Worker at CS.  It reports that he has a history of dry cough, chest pains and slight fever.  It notes that he is on a full course of medication yet strongly recommends that he be granted bail so that he can freely attend medical reviews and treatment outside.   Firstly, the report is not from a qualified doctor.  Even if it were, it is not suggested by the report that appropriate treatment is not available or has been denied.  It points to some constraints but CS has a duty to maintain the health of the applicant as it does for all remandees.   It is clear from the report that CS is aware of the applicant’s medical condition and is treating it.  I am not satisfied that his medical treatment warrants release on bail.  The interests of the applicant must be balanced against those of the community.

14.   In summary, having regard to the serious, brazen and repeated nature of the alleged offences against young girls I am not satisfied that the continued detention of the applicant is unjustified.  The applicant’s concession that he may reoffend if released only goes to strengthen my view that the application should be refused.

15.   Orders accordingly.
_________________________________________________________
Public Prosecutor :       Lawyer for the State		
Kandawalyn Lawyers: Lawyer for the Prisoner