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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR (AP) NO 784 OF 2020
BILLY KAMANA
Applicant
V
THE STATE
Respondent
Waigani: Tusais AJ
2020: 13th, 19th January
CRIMINAL LAW – Application for bail after conviction pending sentence – Section 10 Bail Act. - Bail revoked after conviction and adjournment of trial pending sentence on manslaughter charge –
PRACTICE AND PROCEDURE – Bail – Whether Judge other than the trial Judge has jurisdiction under section 10 of Bail Act to grant bail after conviction and before sentence – Section 11 Bail Act is not applicable in situation where no notice of appeal has been filed.
Cases Cited
John Jaminan v State [1982] PNGLR 122
Arthur Gilbert Smedley v The State [1978] PNGLR 452
Rolf Schubert v State [1979] PNGLR 66
Walter Enuma v State (1997) SC538
Dr Theo Yasause v State (2011) SC1112
Theo Yasause v State (2014) SC1381
State v Boma Bango (2010) N4168
Matuil v State (2016) N6324
Douglas v State (2016) N6569
Kaia Pidik v State (2020) N8203
DECISION
19th January, 2021
1. TUSAIS AJ: INTRODUCTION: This is an application for bail after previous National Court bail was set aside and the applicant remanded in prison awaiting sentence. Decision on sentence was reserved to a date to be advised.
BACKGROUND
2. The applicant is 31 years old resident of Tombil village in Jiwaka Province. He was convicted by Kaumi J of the crime of manslaughter and was remanded in custody awaiting sentence. The applicant did not apply to the trial Judge for extension of bail after conviction, pending sentence and his previous National Court bail was revoked.
3. The Applicant deposed as follows in his Affidavit in Support setting out his grounds for seeking bail after conviction.
At that time, I was out on bail but after the court made that ruling I was remanded. What the judge said was he will come back in the month of November, 2020 and make further decision in relation to my sentence.
I have been out on bail since 21st June 2019 and have complied with all my bail conditions with no breaches of the court’s conditions, until I was remanded by the visiting judge on 23rd September 2020 to wait for my sentence.
I know I have no right to bail after the court found me guilty on this charge but since 23rd September 2020 to the date of filing this bail application, I do not know when my case will be heard. The court will be closed for the vacation period and my case will be again heard in February 2021 when the legal year resumes but I believe that will take some time before the visiting judge will come and hear my case.
For the interest of justice I am asking this court to release me on bail so I can go and continue my bail until the court resume in February 2021.
If I am further incarcerated my condition will be worsen given the high risk condition I am in.
For this reason I am therefore requesting this court to consider my health condition and release me on bail.”
GROUNDS FOR GRANT OF BAIL
4. The following main grounds were argued as justification for release on bail even though the accused is effectively now a prisoner of state awaiting sentence and no longer entitled to bail as of right under Constitution section 42 (6).
5. It was suggested that Justice Kaumi, the trial Judge was a visiting circuit Judge not resident in Mt Hagen and therefore it would take a long time before his Honour returned to Minj Town and completed the case.
6. The Applicant claimed to suffer from severe asthma. He annexed a statement signed by Joe Gare to his affidavit in support. The statement is dated 24th September 2020 but does not state the writer’s medical qualifications, if any. The report also states that the applicant suffers from severe arthritis or gout, a completely different illness from asthma. I reproduce the report below.
“TOMBIL HEALTH CENTRE
MEDICAL REPORT OF BILLY J. KAMANA WITH CHRONIC ARTHRITIS (GOUT) ON BOTH FEET
Mr. Kamana is male aged 30 from Kinsta Village in Chuave, Chimbu Province, and has been living with chronic arthritis (gout) on both feet since teenage.
He regularly receives his medication at our health facility every two weeks. His condition is chronic and not coverable so he depends on full medication and routine visits at our clinic/facility.
His condition; if not treated on scheduled dates or if he miss his medication, he will deteriorate systematically and build up uric acid that will toxicate other vital organs that will be fatal.
I recommend that his life depends on his medication and regular visits to a health centre of facility for medical checks.
(signed)
Joe Gari
Officer in Charge”
7. Filed in support of the bail application is an Affidavit sworn by the state prosecutor in the trial, Mr Joseph Kesan. I reproduce his affidavit as follows:
STATES RESPONSE
8. Ms Langtry for the State objected to bail. She submitted that the applicant’s reasons for bail are not exceptional. She referred to those reasons as:
This was said to be a pre-existing condition and not life threatening. Applicant has managed to live with that condition for many years and the presumption is that he will continue to manage the situation. It was submitted that it is the statutory obligation of the Department of Correctional Services to provide medical care and there was no evidence that it was failing in this duty to the applicant.
State submitted that the applicant was convicted for the crime of manslaughter. The maximum penalty is life sentence and it was more than likely that he would receive a custodial term and any time spent awaiting sentence would be deducted anyway.
State submitted and relied on many cases that have conclusively reaffirmed the principle that family concerns and business interest have never been regarded as exceptional circumstances warranting grant of bail.
ISSUES
9. There are two main issues which arise from this application.
THE LAW
10. This application is made pursuant to section 10 of the Bail Act. Both counsels submitted that I had jurisdiction to hear this bail application under that section even though another judge of the National Court was the trial judge and had revoked bail after entering conviction. Both counsels referred to section 11 of the Bail Act as allowing another court with similar jurisdiction to grant bail. Section 10 of the Bail Act comes under ‘part III – Grant of bail after conviction’ and reads;
Where a court convicts a person but adjourns the proceeding before passing sentence, it may, in its discretion, grant the person bail.”
11. Section 11 of the Bail Act states:
“11. BAIL AFTER LODGING APPEAL
Where a person lodges an appeal against his conviction or sentence or both –
May, in its discretion, on application by or on behalf of the appellant, grant bail pending the hearing of the appeal.”
12. I do not accept counsel’s submission that I have jurisdiction as “a court of equal jurisdiction” to the court which revoked the earlier bail. Section 11 is not applicable to an application such as the current one where a different judge to the trial Judge is asked to reinstate the applicants bail after it has been revoked by the trial judge. Section 11 is applied to applications for bail by convicted persons who have filed notice of appeal challenging their conviction and sentence or both. The section cannot be relied on by the present applicant because there is no evidence that he has filed a notice of appeal challenging his conviction.
13. There have been many decided cases on bail applications made under section 11 of the Bail Act. I refer to cases including John Jaminan v State [1982] PNGLR 122, Arthur Smedley v State [1978] PNGLR 452, Rolf Schubert v State [1979] PNGLR 66, Walter Enuma v State (1997) SC538, Dr Theo Yasause v State (2011) SC1112 Salika DCJ, Cannings J Sawong J, Theo Yasause v State (2014) SC1381 Makail J. All those cases reaffirm the principle in law that once a person has been convicted, he is no longer entitled to bail as of right because he is a prisoner of the state. To be granted bail the applicant is required to demonstrate that there are exceptional circumstances justifying his release on bail pending hearing of appeal. Otherwise, courts have been very reluctant to release convicted prisoners on bail.
14. In comparison, there have only been a few reported cases of bail applications made under section 10 of the Bail Act. In the case of State v Boma Bango (2010) N4168 the late Kawi J in his decision on sentence referred to his decision to grant bail to the prisoner after convicting him and before sentence. He said,
“After you pleaded guilty, I convicted you of that offence, but allowed you bail after conviction pursuant to section 10 of the Bail Act after it became apparent to me that you are suffering from chronic asthma. I reserved my judgment on sentencing and this is my decision on your sentence.”
15. Then in Matuil v State (2016) N6324 Anis AJ (as he then was) after convicting an accused person heard an application made under section 10 Bail Act. Bail was refused and the court ruled that (head notes):
16. A case similar to this one was Douglas v State (2016) N6569, heard by Justice Murray in Lae. The applicant was waiting for sentence for a significant period of one year six months after conviction. Her honour decided that section 10 of the Bail Act did not allow for an application by a convicted person to be made before another Judge of the National Court. She said at para 17&18:
“In my view, section 10 is also not applicable and therefore not available. It does not provide for an ‘Application’ to be made by someone who has been convicted but not yet sentenced.
Instead, it gives a court a discretionary power to consider on its own, whether to grant bail to someone, it has just convicted but had to adjourn without deciding on a sentence. That is a discretionary power given to the Court to apply there and then. Not for someone awaiting sentence to come back and apply.”
17. I adopt and apply the reasoning by Murray J. Section 10 of the Bail Act does not allow for an applicant to make a fresh application before another Judge while awaiting sentence. If he has filed notice of appeal he can apply for bail before another Judge with similar jurisdiction. Where the applicant has not filed notice of appeal and is awaiting sentence on remand, he can make fresh application for bail before the Supreme Court under section 13 (2) of the Bail Act.
18. Section 13 (2) Bail Act reads:
“Where a person is refused bail by a Judge of the National Court, he is entitled to apply for bail immediately if he so desires to the Supreme Court.”
19. The Supreme Court in Dr Theo Yasause v State (2011) SC1112 Salika DCJ(as he then was), Cannings J Sawong J, said at para 3:
“This is not an appeal against refusal of bail. Nor is it an application for reconsideration of bail based on a change of circumstances. It is a fresh application, which means that the applicant is under no obligation to establish that bail was wrongly refused or that there has been a relevant change in circumstances.”
20. For the reasons I have stated above, I rule that this application for bail is incompetent. As the trial was conducted by a different Judge, it is my view that I lack the requisite jurisdiction under section 10 of the Bail Act to decide whether to grant bail after conviction and before sentence. I do not consider it necessary to further assess the grounds raised for and arguments made against grant of bail.
Bail is refused.
Comment
21. Before I close, I refer to the affidavit filed in support by the state prosecutor who conducted the trial. The applicants lawyer relied heavily on the contents of this affidavit and submitted that this by itself showed exceptional circumstances because the prosecutor in the case had made those observations.
22. The fact that certain matters are deposed to by a state prosecutor does not make them exceptional per se. Those matters could just as easily have been brought to the court’s attention by the defence lawyer in the trial. It is certainly
an unusual practice when a lawyer from the Public Prosecutors office openly supports the bail application of an accused person they
are currently prosecuting. This must be discouraged in future. It is bad for public policy reasons and effective administration of
justice when prosecutors and law enforcement officers openly sympathize and collaborate with accused persons that they are investigating
or prosecuting. It affects the objectivity necessary for those officers of the law to do an effective job. Victims of crime and the
public at large are entitled to wonder whose side they are on in such a situation. In the case of Kaia Pidik v State (2020) N8203, Thompson J referred to a similar situation in which a bail application was supported by the arresting officer himself. The police
officer it seemed had visited the accused person in prison outside of work-related duties. He deposed afterwards in an affidavit
supporting bail that the accused person was remorseful and was suffering from several physical and mental health conditions while
in remand. The prosecutor in that case objected to bail despite this and the Judge accepted her submissions. The same situation exists
in this case.
________________________________________________________________
Public Solicitors Office: Lawyer for the Applicant
Public Prosecutors Office: Lawyer for the Respondent
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