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Tigavu v State [2011] PGSC 68; SC1570 (18 March 2011)

SC1570

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 188 of 2010

BETWEEN:

DAVID TIGAVU
Appellant/Applicant

AND:

THE STATE
Respondent

Waigani: Injia, CJ
2011: 18^th March

SUPREME COURT- Practice & procedure - Bail pending appeal on conviction and punishment for contempt - Conviction for contempt of criminal nature- Stay of conviction and punishment for contempt not available under s 19 of the Supreme Court Act- Bail application under s 10 of the Supreme Court Act is available - Grant of bail has same effect of staying enforcement of the sentence

Case cited:
Brothers Engineering Pty Ltd v Ross Bishop (1989) N 705
Denden Tom v The State (2007) SC 914
Enuma & Others v The State (1997) SC 538
Jaminan v The State [1983] PNGLR 722
Mataio v The State (2004) SC 865
Robinson v The State [1986] PNGLR 307
Smedly v State [1978] PNGLR 452
The State v Yabara (No. 1) [1984] PNGLR 133

Counsel:
B Meten, for the Applicant
R Auka, for the Respondent

18^th March, 2011

1. INJIA CJ: The appellant is serving a sentence of 12 months imprisonment for contempt imposed by the National Court sitting at Madang on 20^th December 2010. On 23 December 2010, he lodged an appeal against the decision.
   
2. By application on his behalf filed on 23^rd December 2010, his lawyer seeks the following relief:
   
   • (1) The decision of His Honour Justice Cannings of 17^th December 2010 be stayed pending the determination of this appeal;
     
   • (2) In the alternative the appellant be granted bail pursuant to section 11 of the Bail Act and section 10 (1) (a) of the Supreme Court Act.
     
3. The first relief is sought on the basis that this was a conviction for civil contempt as it arose in connection with a civil proceeding. Therefore, the provision of s 19 of the Supreme Court Act is applicable.
   
4. In the course of exchange between the bench and Mr Meten of counsel for the applicant, it became clear that a conviction and punishment for contempt is criminal in nature and s 19 has no application to a criminal conviction and sentence. For this reason, Mr Meten was allowed to pursue the alternative relief, which if granted would have the effect of staying execution of the sentence pending appeal.
   
5. The principles on bail relating to an ordinary criminal appeal case are settled. The applicant must show exceptional circumstances why bail should be granted. Where particular circumstances are relied up, it must be shown that the circumstance is of an “extra - ordinary” nature. As to what facts constitute exceptional circumstances depends on the circumstances of each case. Leading cases on point are Smedly v State [1978] PNGLR 452, Jaminan v The State [1983] PNGLR 722, The State v Yabara (No. 1) [1984] PNGLR 133, Enuma & Others v The State ( 1997 ) SC 538, Mataio v The State (2004) SC 865 and the more recent case of Denden Tom v The State (2007) SC 914.
   
6. Mr Meten submits the principles applicable to bail in ordinary criminal appeals have no application to a person convicted for contempt. He submits it is purely a matter of judicial discretion to be exercised without regard to exceptional circumstances to justify bail. As an example, he cites Bishop Brothers Engineering Pty Ltd v Ross Bishop (1989) N705 in which bail was granted by the National Court immediately after the first defendant was sentenced to six weeks imprisonment with hard labour for contempt and after his lawyer advised the court that he had instructions to appeal the conviction and sentence.
   
7. In my limited research I am unable to find any decided cases on point. I agree with Mr Auka of counsel for the respondent that a conviction for contempt of court is criminal in nature and the applicant must demonstrate exceptional circumstances or a strong case for the exercise of discretion in his favour. Contempt of Court is a very serious matter and a contemnor ought to demonstrate that he has a strong case for bail pending determination of the appeal that would in effect halt the enforcement of punishment for contempt from taking its lawful course.
   
8. Mr Meten‘s submissions were based on the applicants affidavits and affidavits filed by various guarantors. He relied on three circumstances as follows:-
   

(a) Prospect of success in the appeal.

(b) Prior good character.

( c) Medical grounds.

9. Mr Auka of counsel for the respondent opposes the applications but has not filed any affidavits. He submits however that the material placed before the Court do not show exceptional circumstances and the application should be dismissed.
   
10. I have considered the submissions and the material before me. The appeal is premised on a number of grounds which challenge the procedure applied by the trial judge in dealing with the alleged contempt which was committed outside the face of the Court. That because the appeal was also premised on allegations of scandalizing the trial judge, the judge should have disqualified himself from dealing with the case. Counsel relied on the Robinson v The State [1986] PNGLR 307.
    
11. I agree with Mr Auka that the preponderance of judicial case authority says that prospect of success in an appeal per se is generally not a valid ground to grant bail, however it may be taken into account amongst other considerations in the exercise of judicial discretion on bail. I am of the view that the procedure adopted in instituting the contempt proceedings and its application to the case before the Court appear to be in order. The Registrar filed a motion for contempt supported by a Statement of Charge and affidavits. Also the conviction was in part support by admissions made by the applicant. The trial judge’s assumption of jurisdiction in the matter is a matter of discretion, and on the face of it appears to be in order. I have read the trial judge’s written judgment on the issue and it appears to me that the reasoning is sound. In the circumstances, I am not persuaded that the appellant has a case on appeal that is likely to succeed.
    
12. I am also not persuaded that the remaining two grounds amount to exceptional circumstances. The applicant’s medical condition for instance appears not to be seriously life threatening and a condition that can be attended at medical facilities in the jail or at Modilon General Hospital by arrangement with the Jail authorities.
    
13. In all the circumstances, I am not satisfied that there exist exceptional circumstances to warrant bail. Consequently bail is refused. A Certificate of Refusal of Bail to which this Ruling is attached will be issued forthwith.
    

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Meten Lawyers : Lawyer for the Appellants/Applicants Acting Public Prosecutor : Lawyer for the Respondent