N3233

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 371 of 2007

LULUAI BANDI

V

THE STATE

Goroka: Davani. J
2007: 16 November

CRIMINAL LAW - application for bail - charge - sexual penetration of a child under 16 - bail, a constitution right - s. 42(6) of the Constitution.

CRIMINAL LAW - child victim - grant of bail, subject to interests of justice - prediction of child victims - refusal of bail - s. 9(1)(f) of Bail Act.

Applicant is charged under s. 229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 for having sexually penetrated a female child, aged 3. The application for bail is made pending committal.

Held:

(1) A person is entitled to bail at all times unless the interests of justice otherwise refuse.

s. 42(6) of the Constitution.

(2) The victim is a 3 year old female child. The applicant is a close friend of the family. The child victim and witnesses in sexual offences against children must be protected.

(3) The success or not of any prosecution of a sexual offence involving a child victim is dependent very much on the clarity of evidence to be given by the child and his or her witnesses. If the offender is allowed to remain free, there is a very high risk of the witnesses being interfered within any way manner or form.

It is not in the interests of justice that the applicant be released on bail.

(4) Bail is refused.

Counsel:

P. Mumure, for the Applicant
S. Luben, for the State

DECISION

16 November, 2007

1. DAVANI. J: The applicant applies for bail pending committal.

2. He is from the Eastern Highlands province, Guhunoso village and is aged about 36 years. He relies on the affidavits of his lawyer Ms. Ohuma sworn on 18 September, 2007, his affidavit sworn on 20 September, 2007 and Yaka Bandi’s affidavit sworn on 18 September, 2007.

3. He applies for bail pursuant to s.4 and s.6 of the Bail Act. (‘BA’).

4. According to s. 6 of the BA, applications for bail can be made at anytime after a person has been arrested or detained or at any stage of a proceeding. In this case, the applicant applies before committal.

5. The Court shall grant or refuse bail in accordance with s. 9, subject to course to s. 4 of the BA. Under s. 42(6) of the Constitution, a person is entitled to bail at all times unless the interests of justice otherwise require. The onus is upon the State to show why bail should not be granted. And that is where the relevance of submissions under s. 9(1) (a to j) of the BA are relevant.

6. Ms. Luben for the State opposes the grant of bail. She submits that bail should not be granted because the alleged act constituting the offence is a serious assault. The applicant in this case is charged under s. 229A of the CCA (as amended) i.e. of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The State, alleges that the applicant sexually penetrated the victim, a female child, when she was aged 3.

7. There is also a report from a psychiatrist, Dr. Brother Andrew that the applicant may be mentally handicapped. It does not say anything to the effect that the prisoner may be released or may not be released.

8. Mr. Munure submits that the matters raised by the State and relied on by the State are from the Bar table. But according to s. 9(2) of the Bail Act, a Court is not bound to apply technical rules of evidence. Which means the documents Ms. Luben relies on and is reading from the bar table, i.e. the Medical Reports and the charges, I note, are part of the District Courts Depositions, that was also available to Defence counsel but which Defence counsel saw fit not to peruse and submit on.

9. A Medical Report from a Dr. Paul Kila Wari, of the Goroka Base Hospital dated 2 February, 2007 describes the nature of the injuries suffered by the victim, to her private parts, which include, amongst others, a torn hymen.

10. Furthermore, the State alleges that the prisoner was in a position of trust when he committed the offence i.e. he was a family friend.

11. In a small community such as ours in PNG or at least in a small town like Goroka, victims of sexual offences more particularly small children are very vulnerable in the sense that, if the offender is allowed to remain free, there is a very high risk of the witnesses being interfered with in any way, manner or form. And I do not believe this can be remedied by conditions. And that is where s. 9(1)(f) of the BA is of relevance. The same can be said of any offences. But for sexual offences involving children, Courts must ensure that child victims are protected. The success or not of any prosecution of a sexual offence involving child victims is dependent very much on the clarity of the evidence to be given by the child and his or her witnesses.

12. I do not believe that it is in the interest of justice that the applicant be released on bail.

13. Bail is refused.

_____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Applicant