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Usurup v Liriope [2009] PGSC 44; SC1040 (27 July 2009)

SC1040

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 14 of 2009

BETWEEN:

DR JETHRO USURUP
Appellant

AND:

SISTER DIANNE LIRIOPE
Respondent

Waigani: Injia, CJ
2009: 27th July

BAIL – application for bail pending appeal against contempt of court – grant of bail is discretionary - onus on applicant to show ‘exceptional circumstances’ before bail is granted – grounds of bail advanced by applicant does not constitute ‘exceptional circumstances’ - interest of justice demands enforcement of punishment - application refused with costs to respondent – s.11 Bail Act, s.10 (1) (c ), s 5 (1) (e) Supreme Court Act

Counsel:

G Elai, for the Appellant
Y Wadau, for the Respondent

27th July, 2009

1. INJIA CJ: This is an application for bail pending appeal against punishment for contempt of Court. The application is made under s 11 of the Bail Act and also under s 10 (1)( c) and s 5 (1)(e) of the Supreme Court Act. These are the correct jurisdictional provisions and they are pleaded in the application for bail filed in these proceedings. The application is made pending determination of the application for leave to appeal against sentence or punishment for contempt. The application is contested by the respondent.

2. On 15th July 2009, the National Court sitting at Madang convicted and sentenced the applicant for breaching a Court order made on 27th January 2009 in which the Court ordered that Modilon General Hospital of which the applicant was the Chief Executive Officer, should not take any disciplinary action against the respondent and others who had previously participated in a strike action. The Court sentenced him to 6 months imprisonment. The applicant does not appeal against conviction. He has sought leave to appeal against sentence only. There is no question that the punishment for contempt comes within the term "against the sentence passed on his conviction" in s 22 (d ) of the Supreme Court Act.

3. The applicant relies on his own affidavit sworn on 15th and filed on 20th July 2009 and the affidavit of Anthony Kalisa and Joachim Komoru both sworn on 15th July and filed on 20th July 2009.

4. Counsel appearing for both parties argued the application before me last week and I reserved my ruling to today which I now deliver.

5. The grant of bail of a person detained under law is discretionary. Bail may be sought by a person charged with a criminal offence and detained pending trial or by a person convicted and sentenced but pending appeal. In the latter situation, the onus is on the applicant to show exceptional circumstances before bail is granted. The principles are well settled. The question before me is whether the appellant has discharged that onus in this case.

6. Both counsel made extensive arguments on the circumstances of the case as to whether they meet the test of exceptional circumstances. I have considered those submissions.

7. All the cases cited by both counsel are cases in which bail was applied for pending appeal against conviction and / or sentence for a prescribed criminal offence under the Criminal Code. No case was cited in respect of exercise of discretion on bail pending appeal against punishment for contempt. I am also unable to locate a case on point.

8. The Court obviously must start from the premise that the applicant in this case must show exceptional circumstances. In considering the matters relied upon as constituting exceptional circumstances, the Court must consider an additional matter of principle that is relevant to persons who are convicted and punished for contempt. The Court must consider the interest of justice as one of its primary considerations. In fact this is one of the considerations that is relevant to be considered whilst considering the matters enumerated in s 7 of the Bail Act. The Court must have proper regard to the demands of justice - that breach of its orders is a direct attack on or affront to the very foundation of justice administration and those who disregard or violate orders of the Court should be punished appropriately and once punished, the enforcement of the punishment should not be easily interrupted unless there are clear grounds constituting exceptional circumstances for doing so. The main focus of the parties and the Court should then be on expediting the appeal process and the Court should take the necessary steps to afford an early opportunity for the appeal to be heard and determined expeditiously.

9. In the present case, in my view, none of the circumstances relied upon by the applicant amount to exceptional circumstances. Matters such as the importance of the position occupied by the applicant and difficulties experienced by his or her employer in carrying out functions under his area of responsibility, difficulties experienced by members of his family, the chances of success in the appeal, the likely delay in the prosecution of his appeal and so on have either been considered to be irrelevant or not constituting special circumstances in previous cases. I am not prepared to depart from the position taken in these other cases. Many of those cases have been cited by both counsel.

10. Further, the fact that the breach of the order occurred whilst he was the CEO of Modilon General Hospital and has now changed jobs is not a material consideration. The availability of Guarantors with sufficient surety also does not constitute exceptional circumstances. The distinction sought to be made by the applicant’s counsel on the seriousness of the contempt in terms of disobedience to an order in a civil case as compared with a criminal case is not a relevant distinction. An order of the Court whether it arises from a civil case or criminal case remains an order for all intended purposes. Finally, in the particularly circumstances of this case where the applicant admitted the charge of contempt and the actions constituting the contempt resulted in the dismissal of the respondent, renders the breach of a serious nature. The interest of justice in those circumstances demands that the enforcement of the punishment should not be interrupted pending appeal. In the circumstances, the application is refused with costs to the respondent. A Certificate of Refusal of Bail will be issued forthwith.

11. The application for leave is now fixed for hearing on 4th August 2009 at 9:30am. If leave is granted, the hearing of the substantive appeal should be given priority by the full Court.

_________________________________________
Pacific Legal Group Lawyers: Lawyer for the Applicant
Young Wadau: Lawyer for the Respondent