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Steven v State [2019] PGNC 64; N7796 (8 April 2019)

N7796

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 48 OF 2019

SAMUEL STEVEN

V

THE STATE

Waigani: Berrigan, J
2019: 8 April

DECISION ON BAIL APPLICATION

CRIMINAL LAW – Bail – S. 9 Bail Act, 1977– Meaning of “serious assault” – S. 229D of the Criminal Code – Persistent sexual abuse of a child - Continued detention justified.

Cases Cited:

Fred Keating v The State [1983] PNGLR 133
The State v Andrew Tovue [1981] PNGLR 8
Theo Yausase v The State (2011) SC1112

Counsel:

Mr A. Peter, for the Applicant
Ms H. Roalakona, for the State

8^th April, 2019

1. BERRIGAN J: The applicant applies for bail pursuant to Section 6 of the Bail Act 1977 and Section 42(6) of the Constitution, following committal to the National Court.
   
2. The applicant is charged with five counts of persistent sexual abuse of a child, namely five females aged between 4 and 11 years, contrary to s 229D(1) of the Criminal Code (Ch. 262) (the Criminal Code).
   
3. It is alleged that the 26-year-old applicant was raised by the complainants’ biological father and lived with them in Port Moresby at the time of the offending. In essence he was their step-brother. It is further alleged that the applicant would subject the girls to viewing pornographic films following which he would both sexually touch them and sexually penetrate them with his fingers. The girls discussed the offences amongst themselves but did not initially report to anyone for fear of being beaten by their father. Eventually the alleged offences were reported by one of the girls. Medical examinations were conducted, indicating penetration.
   
4. The applicant was arrested and charged on 13 September 2017 and has been in custody since.
   
5. 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, 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.
   
6. The State opposes bail. The material before me clearly establishes that one or more of the circumstances in s. 9 of the Bail Act apply. The alleged offences concern serious assaults, pursuant to s. 9(1)(c)(i) of the Bail Act. The fact that violence is not alleged does not mean that an assault has not been occasioned, nor that the assault is not serious.
   
7. “Serious assault” is not defined in the Bail Act 1977 but s. 243 of the Criminal Code defines an assault as the direct or indirect striking, touching or moving, or otherwise applying of force to the person of another, without consent, or with consent if the consent is obtained by fraud. In The State v Andrew Tovue [1981] PNGLR 8 it was held that the accused, a traditional healer, assaulted the victim by convincing her that sexual penetration had the ability to cause pregnant women to give birth more quickly. In the circumstances the consent was obtained by fraud and the penetration constituted an assault for the purposes of s. 243.
   
8. The law in this country recognises that a child is not able to consent to sexual touching or sexual penetration by virtue of their age. In my view it follows that any such touching or penetration of a child constitutes an assault for the purposes of s. 9(1)(c)(i) of the Bail Act 1977. Such offences are by their very nature also serious, particularly here where the offending is allegedly persistent, against multiple victims and by a person in a position of trust.
   
9. I am also persuaded by the State that the applicant is likely to interfere with witnesses having regard to the proximity of his proposed place of residence, the young age of the complainants, his relationship with them and their father, and the clear disdain in which he holds at least two of the girls’ mothers, in particular the mother to whom the girls first reported.
   
10. 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).
    
11. The applicant protests his innocence. The innocence or otherwise of the applicant is not currently a matter before this Court: see Theo Yausase v The State (2011) SC1112.
    
12. He also argues that he needs to be on bail as he is concerned that a tumour on his nose may have resurfaced. The condition appears to be longstanding and on his own evidence has not been investigated since 2007. There is no medical report in support of his contention and moreover, there is nothing to suggest that he has attempted to obtain a medical assessment or medical treatment from Correctional Services (CS), or that CS is not able to manage the condition should the need arise. See again Yausase regarding the need for a current medical report. In the circumstances the applicant has failed to establish that he has a medical condition warranting release on bail.
    
13. The applicant wishes to complete his education and obtain a paying job. This is not sufficient on its own to establish that his detention is not justified. He submits further that he will best be able to prepare his defence whilst on bail. That may be his preference but as I have said before, many cases including, for obvious reasons, those which involve very serious offences, are defended whilst an accused is in custody. This is not a matter warranting release on bail.
    
14. In summary, I am not satisfied that the applicant has demonstrated that his continued detention is not justified.
    
15. The application is refused.

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