N8598

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 659 OF 2020

IN THE MATTER OF AN APPLICATION FOR BAIL PURSUANT TO SECTION 42 (6) OF THE CONSTITUTION AND SECTION 4 AND 6
OF THE BAIL ACT Ch.340

BRUCE KUKULENG

V

THE STATE

Waigani: Tamate, J
2020: 13th, 22nd October

PRACTICE AND PROCEDURE - Application for Bail pursuant to Section 42 (6) of Constitution and sections 4 and 6 of the Bail Act, Chapter 340 - Whether bail is readily available to a person charged with sexual penetration of a child under 16 years of age in contravention of Section 229A (1) of the Criminal Code Act as amended. 

The accused/applicant was charged for three (3) counts of sexual penetration of a child on different occasions in contravention of section 229A (1) of the Criminal Code [Sexual Offences and Crimes against Children] Act 2002. He was a teacher when he committed the alleged offences on those 3 occasions. He had been in detention since his arrest and charge on 02nd October 2019. 

Held:

(1)	Bail is a Constitutional right therefore in the circumstances of this case bail 
          is granted to the Applicant in the sum of K1000. 00 in cash with reporting 
          conditions.

Cases Cited

Fred Keating v The State [1983] PNGLR 133
	
Counsel

Jeffery Kolowe, for the Applicant
Daniel Mark, for the State

DECISION ON BAIL

22nd October, 2020

1.	TAMATE, J: This is a decision on bail after the Applicant made an application pursuant to Section 42 (6) of the Constitution and Sections 4 and 6 of the Bail Act Chapter 340.

2.	The applicant was arrested and charged at Tabubil Police Station for 3 Counts of Sexual Penetration of a child under 16 years old in contravention of
Section 229 A (1) of Criminal Code [Sexual Offences and Crimes Against Children] Act 2002.

3.	The dates on which he allegedly committed the offence on the victim were: 
	1st offence -	sexual penetration on 11. 05. 2019
	2nd offence-	sexual penetration on 24. 06. 2019
	3rd offence – sexual penetration on 12. 07. 2019
Facts of the Case 

4. 	The applicant was arrested and charged for sexually penetrating her stepdaughter who was living with him and his family at Telefomin Secondary School. It was alleged that the applicant on three different occasions sexually penetrated C in her room and in their house when the mother was away. He would threaten her and force her into having sex with him without her consent. She was afraid to tell her mother until her relatives found out and Applicant voluntarily surrendered to the Police and admitted the offences. 
 Issue	

5.	Whether Accused can be allowed bail pursuant to Section 42 (6) of Constitution in light of the circumstances of this case? 

The Law

6.	In relation to an application for bail the following laws are necessary for the bail authority to consider and apply with relevant case law.

•	Section 42(6) Constitution: Liberty of the person

“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 to acquittal or conviction unless the 
    interests of justice otherwise require.

•	Section 4 Bail Act

 ONLY NATIONAL OR SUPREME COURT MAY GRANT BAIL IN     
          CERTAIN CASES. 

“(1) A person– 

  (a)  charged with wilful murder, murder or an offence punishable by 
          death; or 
  (b) charged with rape, abduction, piracy, burglary, stealing with 
          violence or robbery, kidnapping, assault with intent to steal, or 
          breaking and entering a building or dwelling-house, and in which 
          a firearm is involved, irrespective of whether or not the firearm 
          was actually used in the commission of the alleged offence, shall 
          not be granted bail except by the National Court or the Supreme 
          Court.

•	 Section 6 Bail Act: APPLICATION FOR BAIL MAY BE MADE AT ANY 
 TIME. 
(1)  An application for bail may be made to a court at any time after a
       person has been arrested or detained or at any stage of a
       proceeding.
 (2) A court shall consider an application for bail at 
       the time it is made unless it is satisfied that no steps that were 
       reasonable in the circumstances have been taken to advise the
       informant that the application would be made. 
(3) Subject to Section 4, the court shall grant or refuse bail in 
       accordance with Section 9.

BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

7.	Section 9 of the Bail Act provides:

(1) Where a bail authority is considering the question of granting or 
refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations: –
(a) that the person in custody is unlikely to appear at his trial if granted 
     bail;
(b) that the offence with which the person has been charged was committed  
     whilst the person was on bail;
(c) that the alleged act or any of the alleged acts constituting the offence in 
     respect of which the person is in custody consists or consist of–
(i) a serious assault; or
         (ii) a threat of violence to another person; or
        (iii) having or possessing a firearm, imitation firearm, other offensive 
          	    weapon or explosive;
(d) that the person is likely to commit an indictable offence if he is not in 
       custody; 
(e) it is necessary for the person’s own protection for him to be in custody;
(f) that the person is likely to interfere with witnesses or the person who 
     instituted the proceedings;
(g) that the alleged offence involves property of substantial value that has 
      not been recovered and the person if released would make effort to 
      conceal or otherwise deal with the property;
(h) ….”

8.	In the case of Fred Keating v State [1983] PNGLR 133 the Court held that bail is a Constitutional right and is readily available to persons charged with criminal offences or are in custody. The Court further held that even if one or more considerations under Section 9(1) of the Bail Act is/are available Court still has the discretion to grant bail.

Evidence

9. 	In Support of the application, the applicant relies on the following affidavits:

(i)	  Affidavit of Bruce Kukuleng (Applicant) - 	Teacher
(ii)	  Affidavit of Henry Pisin (Guarantor) -   Mine Operator, OK Tedi 
     (iii)  Affidavit of Mr. Simon Dokan -   Principal of Telefomin Secondary    
                                                                       School. 

Grounds for Bail

10.	The applicant has been in custody for about 01 year and 4 months. He has submitted that he is currently a grade 12 Teacher at Telefomin Secondary School. He stated in his affidavit that he is concerned about the grade 12 students who are preparing for their final exams in November 2020. He states that he is the only teacher (person) who was tasked by the Principle to look after the internal grades/marks and academic records of the Grade 12 students. He is concerned they may miss out on the National Selection.

11. 	He is also raising the ground of his young children’s welfare. The cost of goods is very high in Tabubil and says his 2 young children need him to support them. They are 5 years old and 9 years old respectively. He said he is the only bread winner.

12.	The COVID-19 pandemic is another ground which he has raised for his bail application. He stated that Tabubil and (Western Province) has the second highest COVID infections. He has stated that the possibility of getting infected with this virus is high.

13.	Mr Kolowe submitted that bail is a Constitutional Right and should be granted to his client. He is a teacher and in the interest of the students (grade 12) education particularly their final examination and their assessments the Court should exercise its discretion to grant bail to the applicant.

14. 	The applicant is willing to pay cash bail of K1, 000.00 and undertakes to comply with any bail conditions the Court may impose.

15. 	Further he has nominated his two (2) guarantors who have both undertaken to ensure Applicant complies with his bail conditions and attends to his court hearings. They have each pledged surety of K500.00 – each. They are:

	(i)	Mr. Simon Dokan – Principal of Telefomin Secondary School
	(ii)	Henry Pisin	- Mine Site supervisor – Ok Ted Mine Ltd.

State Response

16.	 Mr Daniel Mark for the State has not objected to the application. 
He has submitted that the interest of the students in Grade 12 is a factor that court must consider in light of National Exams coming up and the matter applicant has raised in his affidavit.

Discretion of the Court

17. 	Even if one or more consideration under Section 9(1) of Bail Act are present warranting refusal of bail, Court still has discretion to grant bail. Fred Keating v The State(supra).

18. 	The Court has considered the grounds and reasons why the applicant wants this court to grant him bail.

19. 	It is noted here that when a person is charged of an offence, he becomes concerned about the welfare of his children or family and the hardship they face.

20.	These are the natural consequences of a person’s unlawful actions; therefore, these matters need to be considered or borne in their mind before even venturing into unlawful behaviour in committing a crime or an offence.

21. 	In the present case, the Applicant has raised an important ground regarding the Grade 12’s Final Academic results and assessments which he is also responsible for at Telefomin Secondary School.

22. 	He has been supported by the Principle of Telefomin Secondary one Mr.  Simon Dokan who is also one of the guarantors that undertakes to ensure the applicant’s compliance with bail conditions if granted.

23. 	I have read the matters stated in the affidavit of the Principal and am of the view that it would be in the public’s interest to see the students continue with their education with their assessments or academic results properly been done and made available to them by the school.

24. 	I have considered the importance of the presence of the Applicant at the said school at this time when all the grade 12 students are preparing for their final exams in November 2020.

25. 	 In light of the evidence provided the guarantors have undertaken to ensure the applicant complies with his bail conditions. The Arresting Officer has stated through his affidavit that the Complainant is now living with her aunty at Tabubil and attending New Wanbim Primary School there. If Applicant is granted bail, he will be at Telefomin and will therefore not interfere with the victim or any of the witnesses.
26. 	The Applicant has been charged for 3 counts of sexual penetration of a child under the age of 16 years therefore bail according to Section 42 (6) of the Constitution is readily available. However, when considering the grant of refusal of bail each case must be considered on its own facts and circumstances.

DECISION

27. 	Upon considering the evidence and material provided in support of the Application and also the fact that State is not opposing bail, I will exercise my discretion in favour of granting the application for bail.

ORDER OF THE COURT

28.	The orders of the Court is as follows:

(1)	The Applicant BRUCE KUKULENG is granted bail in the sum of 
 	K1, 000.00 in cash with the following conditions:

 	 (a) he shall report to Telefomin Police Station every Monday between 
 	        the hours of 8: 00 am and 4: 00 pm;
	 (b) he shall attend for his criminal case at Tabubil when the National   
                  Court sits.
	 (c)   he shall not interfere with any State witness whilst on bail 
	 (d)   he shall not consume any form of alcohol whilst on bail.
	 (e)  he shall not leave Telefomin or Western Province without the leave 
 	         of the Court
	  (f)   he shall keep the peace and be of good behaviour whilst on bail.

(2)	The Guarantors – Mr SIMON DOKAN – Principle of Telefomin Secondary 
School and Mr HENRY PISIN of Ok Tedi Mining Ltd shall be the guarantors for the applicant Bruce Kukuleng with a surety of K500.00 each.

Decision accordingly.

__________________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State