Kebua v Independent State of Papua New Guinea [2008] PGNC 305; N3561 (18 September 2008)

N3561
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 731 OF 2008

IN THE MATTER OF A BAIL APPLICATION
PURSUANT TO SECTION 4(1)(B) AND SECTION 6 OF THE BAIL ACT

BETWEEN:

CEDRIC KEBUA
Applicant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Alotau: Davani .J
2008: 17th, 18th September

CRIMINAL LAW – Applicant for bail – rape - considerations for bail - s.9 of Bail Act; s.42(6) of Constitution

CRIMINAL LAW – Rape victim - victim's interests - consideration of - interference with victim - bail refused

Facts

Applicant is charged with the rape of a 15 year old girl. He resides a few kilometres away from her and is the son of a CS officer.

Issue

Should the applicant be granted bail?

Held

1. Although an applicant for bail is entitled to it at all times, if the interests of justice otherwise require, bail will be refused.
   
2. The likely interference with the victim by the applicant is very high. The Court must also consider the victim's interests and the interests of justice.
   
3. Bail is refused.
   

Cases

Fred Keating v The State [1983] PNGLR 133

Counsel:

R. Mwatapa for the Applicant
P. Kaluwin, for the Respondent

DECISION

18th September, 2008

1. DAVANI .J: Cedric Kebua (the 'applicant') applies to this Court for bail, moving on his application filed on 9th September, 2008. The applicant relies on s.42(6) of the Constitution and sections 4(1)(b) and 6 of the Bail Act, chapter 262.
   
2. In support of the application, the applicant relies on several affidavits including those of two (2) guarantors.
   

Reasons for application

3. First, the applicant was arrested on 16th October, 2006 for having sexually penetrated a female child on 9th October, 2006 at Gurney in Alotau in the Milne Bay Province.
   
4. The applicant's affidavit deposes to the fact that he will not abscond, if bail is granted; that he has nominated two CS officers to be his guarantors and they will ensure that he comply with the bail conditions; that he will not interfere with the State witnesses including the victim; that he has a good Defence in that the victim consented to the act of sexual intercourse with him and three other boys who are presently in custody on remand at Giligili gaol.
   

Analysis of evidence and the law

5. Firstly, s.6(1) of the Bail Act provides that an application for bail may be made to a Court at any stage of the court proceedings. That a person arrested or detained for an offence (other than treason or wilful murder), is entitled to bail at all times to conviction or acquittal unless the interests of justice otherwise require.
   
6. In this case, the State opposes the grant of bail for the following reasons;
   
   • (i) That the offence constitutes a serious assault, thus s.9(1)(c)(i) of the Bail Act is made out;
     
   • (ii) That the offence constitutes a threat of violence to the victim, thus s.9(1)(c)(ii) of the Bail Act is made out;
     
   • (iii) That the applicant will interfere with the State witnesses, more particularly the victim, if allowed bail, thus s.9(1)(f) is made out.
     
7. The law is that even if one of the considerations in s.9 of the Bail Act is made out, bail is not automatically refused in that there is always a discretion in the Court to grant bail (Re: application for Bail pursuant to s.13(2) Bail Act 1977; Fred Keating v The State [1983] PNGLR 133).
   
8. The applicant in this case, was with a group of 3 others who allegedly took turns in raping the victim. She was forcefully taken to an oil palm plantation where this occurred. The State alleges that she was aged 15 when this occurred on 9th October, 2006.
   
9. The applicant is the child of a CS officer based here at Giligili gaol.
   
10. I am informed that the victim resides close by at the CS block. In sexual related offences involving young victims, the likelihood of the victim being harassed is very real. There are many cases where, the accused always manages to reach out to the victim either directly or indirectly and often, on the eve of trial, the victim then changes her mind about pursuing the matter.
    
11. We the Courts, must assist in protecting the victim's of sex crimes. Accepting that the accused's rights must also be respected, it is then for the system to ensure that his case is dealt with quickly.
    
12. I note the reasons of overcrowding, etc. in Giligili gaol but those are issues that the government of the day must deal with, not the Courts. The Courts are here to ensure that all parties get a fair hearing.
    
13. For the reasons raised, I find that it is not in the interests of Justice that the applicant be released on bail. Bail is refused.
    

__________________________________
Public Prosecutor: Lawyer for the Respondent
Public Solicitor: Lawyer for the Applicant