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Mekere v The State [2003] PGNC 13; N2493 (22 October 2003)

N2493

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NO. 350 OF 2003

Between:

HARO MEKERE

And:

THE STATE

WAIGANI: GAVARA-NANU, J
2003: 22nd October

CRIMINAL LAW – Practice and procedure – Bail application after conviction – Need to show exceptional circumstances for bail to be granted – Exceptional circumstances – A good prospect of success on appeal – Meaning and the test to be applied - Exercise of Court’s discretion – Bail Act, (Chapter No. 340), s.11.

Cases cited:
Logalio Piaro and Or -v- Kimbaming [1976] PNGLR 283.
Chong King Chen -v- The State - N1698.
John Jaminan -v- The State [1983] PNGLR 122.
Arthur Gilbert Smedley -v- The State {1978} PNGLR 452.
Major Walter Enuma & Others –v- The State – SC538.

Counsel:
D. Dotaona for the applicant
D. Mark for the respondent

GAVARA-NANU, J: The applicant was on 19 September 2003 convicted for misappropriating K4,620.00, property belonging to his former employer, Crocodile Catering (PNG) Limited and was sentenced to 18 months in hard labour. He was ordered to repay the money to Crocodile Catering (PNG) Limited within seven days from the date of the Order and was fined K1,000.00, which was ordered to be paid within a month from the date of the Order. It was further ordered that, if the applicant repaid the money and paid the fine within the periods given by the Court, then 6 months was to be deducted from his head sentence of 18 months imprisonment. Thus he would only serve the balance of 12 months in hard labour.

On 27th September 2003, the applicant filed an Application for Leave to appeal against his conviction and sentence.

The applicant is therefore applying for bail under s.11 of the Bail Act, Chapter No. 340. The State opposes the application.

Whether the Court can grant the bail sought by the applicant is discretionary. But such discretion must be exercised judicially and on proper principles.

It is the established principle that a person who applies for bail after conviction must show that there are exceptional circumstances which warrant the granting of bail. This is because the bail is no long as of right and the presumption of innocence is no longer there for the applicant who has been convicted of a crime and sentenced by a court of competent jurisdiction.

In the instant case, the main ground on which the applicant is relying is that, he has an arguable case and has a good prospect of success on appeal. This is stated in paragraph 7 of the affidavit in support of the application.

The other three grounds are; that the applicant had complied with his bail conditions before his conviction; that the sentence imposed is not long, and he has prior good character. These grounds clearly do not constitute exceptional circumstances as they are matters which are common to every such applicant. I therefore dismiss them.

The main ground of application however, does require further consideration. The only significant argument advanced for this ground is that, the trial judge found that the applicant only produced an invoice for the money he says, he paid for the private hire vehicle, but not the receipt to indicate that he in fact paid the money. The applicant suggests that the trial judge should have accepted that the invoice was sufficient evidence that he paid for the hire vehicle.

The applicant relies on the affidavit of Mr Bailse Paru, sworn 7th October, 2003, where Mr Paru deposed that the applicant did hire a vehicle from him. He annexed an invoice to his affidavit, which he says was issued to the applicant. No receipt for such payment, if made, has been produced to the Court.

Mr Paru did not give evidence at the trial and Mr Dotaona was not able to give any explanation for it. However, possible explanation for this appears from the applicant’s own affidavit where he says Mr Paru was a State witness but was not called to give evidence.

One can appreciate the difficulty Mr Dotaona had in explaining this point. He was not the defence counsel at the trial.

I have two observations to make regarding Mr Paru’s affidavit evidence. Firstly, the evidence by Mr Paru should have been given at the trial, but it was not. The affidavit material is therefore fresh evidence which goes to the merits of the appeal. It should therefore be properly left for the appellate court to determine. Secondly, Mr Paru’s affidavit only annexes the invoice purportedly made out to the applicant for the hire vehicle. No receipt for the payment allegedly made by the applicant is annexed. The date of the invoice is 01st October, 2000. But the applicant’s own affidavit says nothing about the hire of the vehicle. It is noted that the invoice was raised for the hire of the vehicle from 03rd August, 2000 to 30th September, 2000. From these, it appears to me that Mr Paru’s affidavit evidence does not take the applicant’s case any further.

It is noted that, on 28th July, 2000, which is the date of the offence, the applicant was the Manager of Crocodile Catering (PNG) Ltd.

The applicant had explained at his trial that K 4,1200.00 from the total amount of K4,620.00 was used to hire the vehicle and the remaining K 500.00 was used to register the vehicle. And he said the vehicle was used to carry out his work for Crocodile Catering (PNG) Ltd. But the trial judge rejected these explanations. As to the K4,1200.00, the trial judge found that there was no evidence that it was used to pay for the hire vehicle because no receipt was produced. And as to the K500.00, the trial judge found on evidence that the vehicle was already registered when it was hired. Therefore, His Honour said, that amount could not have been used to register the vehicle. Thus it is implicit in the trial judge’s reasoning that there was no reasonable explanation given by the plaintiff on how K 500.00 was used.

In this regard, it is also significant to note that the date of the invoice for the hire of the vehicle is 1st October, 2000, and the hire was from 3rd August, 2000, to 30th September, 2000. It is clear from this that there is a serious question as to the logic in the arguments advanced by the applicant because, the offence was committed on 28th July, 2000, which was well before the purported hire of the vehicle. This appears to be a serious flaw in the applicant’s argument. That can only be properly determined on appeal upon review of the evidence that was before the trial judge; pursuant to s. 6 of the Supreme Court Act, Chapter NO. 37. It is not my function here to conduct review of the evidence that was before the trial judge.

But the discrepancies in the arguments advanced by the applicant as I have just described, immediately bring into question whether the applicant has a good prospect of success on appeal. Again this is a matter which can only be properly determined by the appellate court.

The applicant’s main ground that he has an arguable case and thus has a good prospect of success on appeal appears to lack substance because of the obvious discrepancies. See Logalio Piaro and Or -v- Kimbaming [1976] PNGLR 283; see also Chong King Chen -v- The State - N1698. For the same reasons, this case is distinguishable from Major Walter Enuma & Others -v- The State – SC538. There the prisoners were granted bail after conviction based on a point of law, which prima facie weighed strongly in their favour on the prospect of their success on appeal.

Further more, on the applicant’s contention that he has a good prospect of success on appeal, the authorities overwhelmingly establish that bail can only be granted where there is very high likelihood or an extra ordinarily high prospect of success. See Chong Kong Chen -v- The State (supra) or that the outcome is readily apparent, see John Jaminan -v- The State [1983] PNGLR 122. These cases provide the meaning and the test to be applied, when determining whether the applicant has a good prospect of success on appeal.

The material evidence before me do not sufficiently show that the success of the appeal is highly or inevitably probable or that the outcome is readily apparent. In other words, the applicant has failed to meet the test as set out in Chong Kong Chen v The State (supra) and John Jaminan v The State (supra). See also Arthur Gilbert Smedley -v- The State [1978] PNGLR 452.

The applicant has also argued that the bail should be granted because of the coming court vacation. That argument must fail because it does not constitute an exceptional circumstance. Similar approach was adopted by this Court in Arthur Gilbert Smedley -v- The State (supra).

I am therefore not satisfied that the applicant has established exceptional circumstances in his application.

The application is refused.
____________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Applicant: Dataona and Associates