N10970
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA (APP) No. 365 OF 2024

KAMBE TALIBE
Applicant

V

THE STATE
Respondent

Waigani: Miviri J
2024	: 20th & 21st August

CRIMINAL LAW – PRACTICE & PROCEDURE – Bail Application – Section 4 & 6 Bail Act – Section 42 (6) Constitution – Section 229A, 229E, 229D,  CCA – S9 (1) (c) (i) (ii) & (f) Bail Act – Objection to Bail – No Medical Affidavit Verifying Allegation of Condition – Self Serving – Status & Standing Not Verified – Guarantee Not Made Out – Serious Offence Crime of Violence Allegation – No Evidence to Guarantee Safety of State Witnesses –At Large Subject of Bench Warrant   – Interest of Justice – Circumstances Inconsistent with Grant of Bail – Bail Refused.

Facts
Accused was charged with sexual penetration of a minor his own 8 year old daughter and other related offences drawing three information upon section 229A, 229D, 229E of the Criminal Code for which he was initially granted bail but made no appearance. He now appears after execution of a bench warrant pursuant.

Held   
No guarantee whilst on Bail.
Serious violent offence.
No medical evidence verifying condition alleged.
Interest of Justice not in favour of.
Bail Refused and accused Remanded.

Cases Cited.
State v Kikala [2023] PGSC 15; SC2355 
Keating v The State [1983] PNGLR 133
Lester v The State [2001] PGNC 148; N2044 
Walami v State [2021] PGSC 100; SC2182
Maraga v State [2010] PGSC 60; SC1573 
State v Paul [1986] PNGLR 97
Diawo, Re [1980] PNGLR 148

Counsel:
L. Pitpit, for the State
K. Watakapura, for Applicant

RULING

21st August 2024

1.	MIVIRI J:    This is the ruling on an application for bail by Kambe Talibe who did not appear as a condition of being granted bail after committal by the District Court and did not appear at the call over of the National Court. A bench warrant was issued entailing his custody condition current.

2.	He was charged firstly, under section 223 (1) upon information dated the 11th of April 2022 for offences between the 1st January 2022 and the 07th March 2022 at Tokarara where he engaged in an act of sexual penetration of a close blood relative, his daughter Dorin Jimmy who was 8 years old at that time. 

3.	The second information laid of the 11th April 2022 relates to allegations that he did sexually penetrate a child Dorin Jimmy who was under 16 years old, She was 8 years old by inserting his penis into her vagina and at that time there was existing relationship of trust authority and dependency he is her biological father, contrary to section 229E of the Criminal Code Sexual Offences and Crimes Against Children Act 2002.

4.	The third information is laid also of the 11th April 2022 relates to engaging in persistent sexual abuse of a child Dorin Jimmy aged 8 years old contrary to section 229D (2) of the Criminal Code Sexual Offences and Crimes Against Children Act 2002.

5.	His application is made pursuant to the Bail Act Section 4 and 6 that bail be granted pending the hearing of his trial set on 5th to 6th November 2024 here in the Waigani National Court. He is charged with serious sexual offences against minor his own daughter aged 8 years old. The allegation on that information is that he Kambo Talibe is from Tingite village Komo District, Hela Province. But he resides at June Valley Dorido Street, Port Moresby Northwest.

6.	The victim in the matter is a young female child aged 8 years old named as Dorin Jimmy his own biological daughter from mixed parentage of Hela and Gulf. She is in grade one school at June Valley Primary School. And resides at June Valley, Dorido Street with her parents. The father is the applicant and that is where they live together.

7.	The suspect is the victim’s biological father. The victim was unable to recall the exact date however gave a clear recollection of the abuse by her own father. It is alleged that between the 1st of January 2022 and the 07th March 2022 at June Valley, Dorido Street inside both the suspect and the victims house the suspect did on several occasions sexually abused the victim.

8.	On two separate occasions while the victim was lying in bed in the night the suspect inserted his fingers into her vagina and pinched her. The victim woke up in pain and saw her father was fiddling with her vagina.

9.	The third incident also took place in the same house while the whole family lined up on their mattress and slept. The suspect slept diagonally across their feet as his head was situated toward where the victim’s legs were. Between 2.00am and 5.00am of Saturday morning 05th March 2022 the suspect removed the victim’s trousers and lay on top of her then inserted his penis into her vagina and had sexual intercourse with her. The suspect sexually penetrated the victim’s vagina three times that morning.

10.	The suspect was formally arrested told of his Constitutional Rights under section 42 (2) of the Constitution, cautioned and interviewed as he denied the allegation however, he was charged with 1 count of Persistent Sexual Abuse section 229D (2), 1 count sexual penetration section 229E and 1 count of incest of PNG Criminal Code (Sexual Offences & Crimes Against Children) Act.
 
11.	The allegation is a crime of sexual violence against his own child Dorin Jimmy his own biological daughter of 8 years old. It would be not right that he lives in that house together with his wife and the child. She is not an adult who can protect herself from the applicant given. There must be guarantee that he will not interfere with her, or that he wont repeat the offence upon her. As it is John Wabia one of the proposed guarantors will ensure he is resident at section 235 Lot 6, Dorido Street, Tokarara, National Capital District. Which is also the guarantee of the second guarantor Ben Taul of Kipo Settlement Boroko NCD. He will not be a good guarantor because he is resident at another part of the city. That fact alone does not guarantee that there will be no interference with the daughter principal witness. For the applicant accused of a very serious offence to live at Dorido Street where the complainant victim also lives will not be guaranteed that she will not be interfered with by the applicant. Both guarantors in my view do not satisfy that bail be granted relying on their guarantee. They both do not meet up in law to fortifying that the applicant on the basis of their guarantee be granted bail. He is without grantee necessary part and partial of ensuring an accused is secured, returns to court until his matter is determined in law.

12.	The reason is simple, the applicant can be easily located. If not by himself with the help of the guarantor who is a man of repute and standing in the Community. And if there is a failure the guarantors are liable for making sure the applicant returns and can be easily located. They are leaders or persons of repute and standing in the community to make this happen: State v Kikala [2023] PGSC 15; SC2355 (22 February 2023). When there is a breach in bail it is a simple matter to get the guarantors to secure the attendance of the applicant. Here there is no guarantee that the applicant will simply revert to committing the offence. Importantly interfering with the principal state witness, his own 8 years old daughter. This ground is not made out in favour of the applicant and falls without merit.

13.	It is particularly serious in his case considering that he has made no appearance in the National Court after committal. He has produced no evidence showing that he was refused entry to sign whilst on bail as a consequence of the Covid19 restrictions. Dates times that he was refused in the course of the Covid19 phase. There is no evidence placed independently to confirm this assertion as the reason for his non-attendance to honour his bail obligations whilst on bail. He is on remand after successful execution of the bench warrant. What is the guarantee that it will be a repeat again to secure his attendance before the court. There really is no guarantee to place him back on bail after securing him for breach of bail conditions by a bench warrant. The confidence of the Court has not been returned in submitting and honouring the conditions imposed upon grant of bail. He has a steep mountain to climb to be able to convince that he will honour reporting conditions. He comes as a person who has breached the confidence and the trust of the Court when it initially granted him bail. He produces nothing to revert this presumption against his application.

14.	Given these facts, it is upon him to show that the material consideration to grant or refuse bail are in his favour, he has discharged the requirements of section 9 of the Bail Act: Keating v The State [1983] PNGLR 133. The Court will exercise the discretion to grant his application if he satisfies and discharges in particular section 9 (1) (a) (f) (g) of the Bail Act. For one he is unlikely to appear at his trial. In this regard I have determined and rejected the guarantors both so really he has nothing to fall back to secure bail.

15.	Yes, Bail is a right coming, but with corresponding obligations upon both the applicant and the Court. “I do not believe that it was intended that bail should be granted without regard to the question of whether or not the applicant for bail will ever answer bail until excused by the Court in the due course of time and process. Indeed, s. 9 of the Bail Act does have provisions relating to that issue. The practice of calling for guarantors and people giving guarantees and undertakings to ensure bail conditions being met seem is in line with that. Yet those who have been giving such guarantees and undertakings have not been serious with their undertakings and or guarantees perhaps because of the penalty or the consequences they stand to face appear not to be serious. It is high time now for cash bails and sureties to be increased upward to the thousands to give some seriousness and importance to the need to meet bail conditions. If most other jurisdictions impose such higher conditions, I see no reason why the level of cash bails and sureties should not be increased in our jurisdiction to either eradicate or minimized the number of bail jumpers.

16.	I do appreciate that some may argue that imposing such terms may in effect amount to a refusal of bail because of inability of offenders to raise the amounts required and therefore a breach of the Constitutional right to bail. Such an argument has to be view in the overall interest of the society and serious negative impacts crime in general is having on our society. One should also need to consider the large number of people breaching bail terms after the police have done their best in apprehending offenders and bringing them before the courts. Granting bails without any regard to the difficulties and expenses the society through the police go through to bring offenders to the Courts would amount to injustice to society for the sake of an offender. The courts are required to administer justice, and it behoves the courts to consider and take such issues into account before granting bails in the interest of justice not only from the perspective of an offender but also the society, which are not necessarily the same, Lester v The State [2001] PGNC 148; N2044 (22 January 2001).

17.	The Constitutional dictate of Section 42 (6) is given heed to by section 9 of the Act. The applicant here must satisfy one or more of the considerations set out by section 9 of the Act. That “BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

(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 efforts to conceal or otherwise deal with the property;
(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;
(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody;
(j) that the alleged offence is one of breach of parole.

(2) In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.

(3) For the purposes of Subsection (1)(i), “narcotic drug” has the meaning given to it in the Customs Act 1951.”

18.	It is undisputed from the facts set out in the information above that this is a crime of violence committed allegedly against a minor 8 years old by the applicant father within the family. At which location he will go to upon grant of bail. In my view there is really no guarantee of further breaches or interference with the minor. It fills out section 9 (1)(c) (i) (ii) of the Bail Act. I am not determining on the basis of the technical rules of evidence section 9 (2) of the Bail Act.

19.	Applicant relies on two invoices out from 2K Medical Centre. The first is dated 22nd February 2019, and the second is dated 12th March 2019. Both are invoices not medical reports relating to his condition medically. They do not constitute basis of the allegation he raises pertaining to his supposed alleged medical condition. He relies further on a payment receipt of K400 dated 2nd April 2021 of a person named as Elawi Kambe. Second payment receipt is in the sum of K 603 dated 2nd April 2021 also in the name Elawi Kambe. 

20.	There is no medical report detailing the medical reasons for attendance at 2K attended to by a medical personal. The examinations made on the patient. The diagnosis of the patient and the treatment administered in patient or outpatient. It is not clear as to who that patient is and whether the patient was asked to purchase medicine. If so, the prescription accompanying the medical report. There is no verification as to whether the subject named on the payment receipts are the same person now before the court. Identification is important as it is a criminal allegation that involves violation of a minor, his own flesh and blood. No affidavit has been deposed to of the scientific medical examination of the patient who is identified as the applicant here. Section 37 of the Evidence Act calls to order this fact if it is intended to rely on a scientific, here a medical examination. And condition that is obviously a continuing threat to the life of the applicant if he continues incarcerated. That is not the status of the plea of the applicant. He has fallen short in the provision of this to the Court. It will disable show out his application as being without merit.

21.	Medical conditions pertaining to an applicant are best held out in evidence by a professional medical person. A doctor who has examined, diagnosed and treated by section 37 of the Evidence Act stating what the evidence of Scientific Examination is. That is not the case here by the applicant. And in my view, it is not wrong to insist and go down this path. The Court has done this in the case of application made in reliance of medical conditions by applicants. It has been held that the medical condition of an applicant be confirmed by a doctor before bail is considered and granted: Walami v State [2021] PGSC 100; SC2182 (22 December 2021) and Maraga v State [2010] PGSC 60; SC1573 (20 December 2010). The law is explicit the applicant has brought out an application filled for all its worth ill prepared and will not go past the dictate of section 9 (1)(c) (i)(ii) and (f) of the Bail Act. His evidence must meet this requirement in law to be considered favourably. And this view is supported by State v Paul [1986] PNGLR 97 where bail was refused because of section 9 (1) (c) (i) (ii) (iii) of the Bail Act. Further the interest of Justice was not served that the Applicant be granted bail because of the significance of the offence. There it involved the stealing of arms from the Police Station Armory. 

22.	I am not swayed and nor satisfied that “there are substantial grounds for believing that one or more of the matters described in section 9 (1) (a) to (g) are present It is the existence of substantial grounds for the belief not the belief itself which is the crucial,” In Re—Fred Keating [(supra). In my view the applicant’s application has no basis to be granted. And the interests of society also to deal with offenders once before the courts and therefore stricter and higher terms maybe imposed, Lester (supra). This is not warranted given the discussion set out above. That the Court must also be conscious of the Bench Warrant list which must be addressed by properly in the screening of applications for bail. Allowing bail must be based on surety, “Likely” that appearance is guaranteed Diawo, Re [1980] PNGLR 148 (4 July 1980). It is an exercise that will not defeat Justice. 

23.	And Justice is also served applicant evidenced by the affidavit dated 15th August 2024 of Lynette Pitpit Lawyer with the office of the Public Prosecutor. Annexure B1 of her affidavit is Internal Memo Bomana C1 Medical Service. Applicant has not lodged the subject complaint there at that facility for medical attention and treatment and further referral therefrom to a hospital outside the Jail. And it is a requirement that is further enhanced with the provision of transport to a detainee to seek medical help outside the prison. There is no leave of absence for medical cause disclosed by the memo here under hand of Sagira Gometa Inspector Health Extension Officer OIC Bomana C1 Medical Services. There is no notation of that fact on the file cover of the detainee applicant. All in all, it is a non-existent medical condition. There is no evidence from the source to venture to 2K medical. Even then the invoices are of 2019, and payments receipts are of 2021. A person there named was the subject of both documents. He is not verified that he is the applicant. This is an application that does not have the legs to walk in and out. It is without merit and fails square. 

24.	Sexual Penetration of a minor here alleged of 8 years old within the family by the biological father is a very serious criminal offence carrying life imprisonment. And the applicant so charged is innocent until proven guilty. But he bears the burden to be discharged at the minimum above the civil standard, but not beyond the criminal balance that he is indeed has credible tangible evidence warranting grant of the application for bail. I am not convinced for the reasons I set out above that this is an application without merit and must fail. It will be refused forthwith.

25.	The application is refused the applicant remains remanded forthwith.

Ordered accordingly. 
______________________________________________________________
Office of the Public Prosecutor	: Lawyer for the State		
Office of the Public Solicitor	: Lawyer for the Defendant