Kaona v Kehali [2009] PGDC 82; DC1024 (12 February 2009)

DC1024
PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE AT VANIMO
CRIMINAL JURISDICTION

COMMITAL NO: 24 OF 2009

BETWEEN:

DENDE KAONA
Informant

AND:

DANNY KEHALI
Defendant

VANIMO: J. AUGUST, DCM
2009: 12 February

RULING

CRIMINAL LAW – Charge of taking part in an unauthorized Force – Accused charged with others for taking part in an unauthorized Force.

BAIL APPLICATION – Whether District Court should allow the accused on bail when the present alleged offence was committed while Accused was out on bail pending trial in the National Court on three allegations of Abduction, Rape and Sexual Penetration – Breach of Bail Conditions – Bail Refused under Section 9 (1) (b) Bail Act – Interest of Justice considered.

Criminal Code Act Chapter 262, s 51 (1) (d), 220, 347, & 229
Bail Act, ss 6, 9(1) (b)
Constitution, ss 42 (6) & 46.

Cases cited: None

Counsels:

Senior Constable David Joel Prosecuting
Ms Scholastica Nepel for the Accused

12 February, 2009

AUGUST, DCM: The accused, Danny Kehali was charged for allegedly taking part in an unauthorized force under section 51 (1) (d) of the Criminal Code Act, Chapter 262.

The matter is a Committal proceeding in the District Court in Vanimo and on the first mention on February 12 2009, the question of whether the accused should be allowed bail was raised.

Defence Submission

Counsel for the Accused, Ms Scholastica Nepel referred the court to section 6 of Bail Act and section 42 (6) of the Constitution reminding the court that bail should be available to all accused at any time. Counsel submitted that because of that the Accused should be allowed bail while awaiting trial. Counsel submitted that the accused was charged with the same offence as the 14 others who are now out on bail. There was no record of interview conducted and Police have no evidence that he has contravene Section 51 of the Criminal Code. Counsel submitted that you could not keep someone in custody and then go out to look for the evidence. The accused voluntarily gave himself up when he was wanted by Police. We submit that it is in the interest of justice that the accused be allow bail.

Prosecution Submission

The prosecution on the other hand opposed bail, submitting to the court that the offence alleged to have been committed carries a sentence of 14 years if convicted. Even though bail must always be available to a person at any time, the court must consider the interest of justice and refuse bail.

Prosecution objects to bail under Section 9 (1) (b) of the Bail Act, which basically states that this offence with which the Accused has been charged was committed whiles he was out on bail. The accused has three (3) pending charges before the National Court. The first one is abduction under Section 220 of the Criminal Code. The second one is rape under Section 347(1) and the third one is a charge of sexual penetration under Section 229 of the Code. The accused was allowed bail of K500.00 on all the counts and committed to stand trial in the National Court. He was out on this bail when he committed this present crime under Section 51 of the Criminal Code. Prosecution submits that in the interest of justice, the court should refuse his bail. If the accused was allowed bail that would amount to an abuse of the process of justice system we have.

In response to the Defence submission on the evidence by Police, we submit that under Section 9 (2) of the Bail Act, the court should not apply strict rules of evidence but may act on the information available to it. As to the Record of Interview, we submit that this is a Committal Process, the accused will be interview soon and the files will be tendered to the court to rule on the sufficiency of the evidence.

The circumstances surrounding this accused is not similar to the 14 others charged with the same offence, he has pending charges before the National Court and in the interest of justice bail should be refused.

Court Ruling

The issue is whether this court should allow the accused out bail when he has breach his bail condition by allegedly committing this present crime. Based on law as stated under Section 9 (1) (b) of the Bail Act, bail is refused.

Having satisfied myself on the information available before me, I rule that this offence was committed while the accused was out on bail for Abduction, Rape and Sexual Penetration respectively, which is still pending trial before the National Court.

I am therefore satisfied that it would be in the interest of justice to refuse bail for the alleged crime under Section 51 of the Criminal Code.

___________________________________________________
Lawyer for the Accused: Young & Williams Lawyers
For the Police/State: Senior Constable David Joel