SC770

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF PAPUA NEW GUINEA]

SC AP No. 10 of 2004

BETWEEN:

JOEY CHARLIE
(Applicant)

AND:

THE STATE
(Respondent)

Waigani: Mogish, J
2004: 17th & 19th November

Criminal Law - Practice and Procedure- Bail Application after conviction- Conviction by National Court- Bail Act s.11- Appropriate test- Exceptional Circumstances must be shown- Whether good prospect of success on a certain ground of appeal amounts to exceptional circumstance.

Held: (1)	A person who has been convicted and has lodged an appeal against conviction and is seeking bail pursuant to s. 11 of the Bail Act must show "exceptional circumstance" Arthur Gilbert Smedley -v- The State [1977] PNGLR 452; The State v Robert Kani Yabara (No.1) [1994] PNGLR 133 Major Walter Enuma & Others v The State SC538 followed.

(2)	The fact that certain grounds of appeal are likely to succeed cannot in itself be regarded as constituting exceptional circumstances so as to justify the grant of bail pending an appeal. Authur Smedly –v- The State (Supra) and The State v Robert Kani Yabar (supra) Major Walter Enuma & Others v The State (supra) followed.

Cases Cited:
Arthur Gilbert Smedley –v- The State [1977] PNGLR 452
The State v Robert Kani Yabara (No.1) [1994] PNGLR 133
Major Walter Enuma & Others v The State SC538
Giordano (1982) 6 A. Crim. R 397 at 399
R v Patmoy (1944)62 W.N. (NSW) 1
Chamberline v. The Queen (No. 1) (1983) 153 CLR 514 at 519

Counsel:
Mr. Kimbu, for the Applicant
Mr. Kupmain for the Respondent/State

MOGISH, J: The applicant is a former employee of the Fly River Provincial Government. He was charged with two other persons with one count of conspiracy and one count of misappropriating K10, 000.00 contrary to sections 407 and 383 A of the Criminal Code Act, Chapter No.262. He pleaded not guilty to both charges. Following a trial he was convicted on both counts. On the 28th October 2003 he was sentenced to 12 months imprisonment for conspiracy and 2 years imprisonment for misappropriation. The sentences were wholly suspended on a number of conditions. Of relevance was that he repay K3, 333.33 to the Fly River Provincial Government within 6 months" from the 28th October 2003.

On the 16th August 2004 he lodged an appeal to the Supreme Court against his sentence. Pending the determination of that appeal, the appellant has applied for bail in accordance with. S.11 (c) of the Bail Act, Chapter No. 340. This matter has come before me as a single judge of the Supreme Court pursuant to s 5 (1) (e) of the Supreme Court Act, Chapter No. 37.

The principles which govern bail after conviction and pending appeal are well settled in this jurisdiction. In State v Walter Enuma & Others SC538, Kapi DCJ (as he then was) summarized those principles in the following terms:

"The principles which govern bail pending appeal are well settled in this jurisdiction. The power to grant bail is discretionary. This discretion has been developed by case law and it is now established that application for bail after conviction is viewed with very great care indeed. The situation is different one from before conviction when the presumption of innocence still prevails. The strong presumption in favour of bail pursuant to s 42 (6) of the Constitution is no longer applicable. The onus is on the applicant to show that there are matters which constitute exceptional circumstances before bail is allowed pending appeal. The authorities establishing these principles are conveniently set out by the Supreme Court in The State v Yabara (No. 1) [1984] PNGLR 133. The Supreme Court has stated that it is not appropriate to compile a list of circumstances which would be regarded as exceptional. This is to be determined from the whole of the circumstances of the particular case." See also Arthur Gilbert Smedley –v- The State [1977] PNGLR 452.

I also remind myself that respect ought to be given to the decision of the trial judge so as to avoid eroding the "finality of the verdict and investing it with a provisional quality" as cautioned by Brenan J in Chamberline v. The Queen (No. 1) (1983) 153 CLR 514. At p. 519 His Honour says:

"To grant bail pending an appeal from conviction is to whittle away the finality of the jury’s verdict and to invest it with a provisional quality thus attacking the central feature in the administration of criminal justice .It is for these reasons that the common law required an appellant to demonstrate special or exceptional circumstances in order to obtain bail pending his appeal."

In Chong Kong Chen v The State MP. 274 of 1997, Sevua J accepted those remarks and went on to say at p.5:

"I consider this as a very sound principle and one with a lot of common sense in it. The criminal trial leading to conviction and sentence or acquittal is part of the whole administration of criminal justice system. The Court determining an application for bail after conviction must therefore be very careful so that the granting of bail is not seen as an interference with the verdict because the court at that stage has not heard all the arguments on the ground of appeal which are usually dealt with by the appellant."

I am not sitting as a court of appeal. Therefore I must exercise care for the reasons stated in the above cases least I be seen as preliminary interfering with the verdict.

In this case, Mr. Kimbu of Counsel for the applicant has advanced three circumstances which he submits constitutes exceptional circumstances warranting bail. Firstly, that the applicant is not medically fit; secondly, that the applicant is the only person who has records of assets worth millions of kina and thirdly, that there a good prospect of success in the appeal.

I will deal with the second matter first. Mr. Kimbu relying on the affidavit of the applicant submitted that since his arrest he has not had the opportunity to properly organize his office including the safe-keeping of confidential records of assets worth millions of kina. He submitted that if his client is not released on bail, "Western Province will suffer as it is likely to loose all the assets, worth millions of kina that are directly under" his clients control. This submission borders on the idea that the applicant is indispensable.

The difficulty in managing one’s affairs was alluded to by the Supreme Court in State v Yabara (No.1) (supra). At page 135 the Court said:

"With respect to any suggestions of having difficulty in managing or completing one’s affairs whilst one is imprisoned we can only say that every person who stands trial for crime must regard himself as in jeopardy of conviction. If he fails to make provision in relation to his affairs against the possibility of conviction, that failure cannot be treated as an exceptional circumstances justifying pending appeal: Giordano at 399 and R v Patmoy (1944)62 W.N. (NSW) 1"

This Court adopts the above statement with respect to the need to attend to one’s official or private duties. There is absolutely no evidence that the Provincial Government is now worse off than it was when the prisoner was the Asset Officer. The absence of any evidence from a reliable source contradicts the applicant’s belief in that he is indispensable. It suggests to me that some of his duties and responsibilities have been attended to by other officers.

I am not satisfied that these circumstances constitute exceptional circumstances.

I now consider the medical condition of the applicant. Mr. Kimbu relied on the affidavit of the applicant which annexes a statement from Dr. Wainette and Dr. Jack Amana. The medical evidence shows that the applicant suffers from an Acute-On-Chronic-Asthma which further contributes to the heart experiencing stress. According to Dr. Wainette the current attacks of shortness of breath is triggered by emotional stress. The doctor goes on to state that "unless his emotional stress is controlled he is in grave danger of suffering respiratory- cardiac arrest."

The impression I get from the Doctor’s affidavit is that his medical condition is manageable and not that serious as how it has been portrayed in this application. The control of emotional stress is something within the applicant control. His emotional stress no doubt has come for many reasons, one of which is as result of his conviction and sentence. These observations do not amount to exceptional circumstances but merely "represent the worries and concerns of many a prisoner who finds himself in custody for the first time." Arthur Gilbert Smedley v The State [1978] PNGLR 452 at p.456. There is no evidence from the goal authority that the applicant has been denied receiving his medical dose or that there is no medication in the hospital to attend to his needs or that the unhygienic condition in the CIS is affecting his health.

In the absence of those evidence, I am not satisfied that this matter constitutes an exceptional circumstance.

I now consider the issue of whether there is a good prospect of success of the appeal. The applicant submits that there is uncertainty in the sentencing orders issued by the trial judge in that it failed to state the consequence of default of any repayment. I agree that there is no specific order as to default. But that is not critical to the intent of the orders. Full repayment and not partial repayment was a condition to a wholly suspended sentence. Failure to observe these orders obviously means that the applicant is in breach of the orders and the "implied’ consequences must take its course.

In this case, the applicant was ordered to repay K3, 333.33 to the Provincial Government within 6 months. According to his affidavit, his cash bail of K1, 1000.00 was converted to off set part of the judgment with a balance of K2, 333.33 remaining to be paid. That amount was to have been paid by the 28th April 2004. On the 14th July, 2004 the Daru National Court issued a bench warrant on the basis that the applicant had not fully complied with the court order.

On the 19th July 2004 the applicant appeared before the National Court and was given an opportunity to present his case. He did so but the trial judge sentenced him to serve the full 2 years sentence.

The applicant appears to submit that his sentence should have been further reduced by some percentage because he had repaid K800.00 on the 19th July 2004. He argued that in the absence of any express orders of default, the trial judge erred in properly exercising his discretion by committing him to serve the suspended sentence. The prospect of success it was argued was that his sentence should have been reduced taking into account the payment repayment of K800.00 or that he should have been allowed ample time to observe part of the terms of the orders.

Mr. Kimbu referred me to the case of Walter Enuma and Others v The State. With respect the circumstances in that case can be distinguished. In Enuma’s case the ground of appeal were such that the appeal was certain to succeed without detailed argument. The basis for the application was succinct and related to point of law and procedure.

The same cannot be said in this application. Here the grounds of appeal relate to how the trial judge exercised his discretion in sentencing. It is not an area where the error is obvious from the materials before me. One would have to look at the entire judgment to determine whether the discretion was exercised properly or not. With respect to the repayment of K800.00, it was paid almost 3 months after the lapse of 6 months. It was not a full payment. And because it didn’t satisfy the orders, the trial simply reactivated the suspended sentence. I cannot find any uncertainty in the orders.

I am not satisfied that these circumstances constitute exceptional circumstances.

In this case the circumstances presented taken individually or together do not establish a case of exceptional circumstances. For those reasons the application for bail pending appeal to the Supreme Court is refused.
_____________________________________________________________
Lawyer for the Applicant:		Mirupasi Lawyers
Lawyer for the Respondent:		Public Prosecutor