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Mataio v State [2004] PGLawRp 33; [2004] PNGLR 124 (8 November 2004)

SUPREME COURT JUSTICE

RAKATANI MATAIO

V

THE STATE

WAIGANI: MOGISH J

02 & 08 November 2004

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.

CRIMINAL LAW – Practice and Procedure- Bail Application after conviction – Can be heard by a Single judge of the Supreme Court – Supreme Court Act s.5 (1)(e)

Facts

The applicant was charged, convicted and sentenced for a crime . He lodged an appeal to the Supreme Court against his conviction and sentence. Pending the determination of the appeal, he applied for bail in accordance with s.11(c) of the Bail Act.

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) [1984] PNGLR 133 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 Smedley v The State (Supra) and The State v Robert Kani Yabar (supra) followed.

Papua New Guinea cases cited

Arthur Gilbert Smedley v The State [1977] PNGLR 452.
Major Walter Enuma & Others v The State SC 538.
The State v Robert Kani Yabara (No.1) [1994] PNGLR 133.
Yaip Avini v The State SC.

Counsel

Mr. Narakobi, for the applicant.
No appearance from the respondent/State.

8 November 2004

Mogish j. The applicant is a former Magistrate at the Boroko District Court. He was charged with the crime of judicial corruption under s.119 (2) of the Criminal Code. On 11 May 2004 he was convicted by the National Court and sentenced on 6 August 2004 to 6 years imprisonment in light labour.

On 24 August 2004 he lodged an appeal to the Supreme Court against his conviction and sentence. Pending the determination of the appeal, the appellant 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. The authorities establishing these principles are conveniently set out by the Supreme Court in The State v Yabara (No. 1) [1984] PNGLR 133. See also Arthur Gilbert Smedley v The State [1977] PNGLR 452.

Firstly, the power to grant bail is discretionary.

Secondly, the applicant must show exceptional circumstances before bail can be granted. What may amount to "exceptional circumstances" has been judicially considered by courts in this jurisdiction. Such consideration must be determined from the whole of the circumstances of a particular case and it is not possible to enumerate particular factors as amounting to such "exceptional circumstances" alone. The onus is upon the applicant to demonstrate that there are factors which constitute "exceptional circumstances in order to satisfy the court that bail should be granted.

Thirdly, there is no right of bail after a conviction. This is because prior to conviction the presumption of innocence under s.42 (6) of the Constitution still prevails, whilst after conviction the presumption is that guilt has been established in what must be taken, until the contrary be shown, to be a trial properly conducted and without error of law. Application such as this must therefore be viewed with very great care and reticence by the courts.

Fourthly, respect ought to be given to the decision of the trial judge. The court determining an application for bail after conviction is not sitting as a court of appeal. Therefore it must exercise care so that the granting of bail is not seen as an inference of 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 appellate Court.

Mr. Narakobi's submissions revolve around the grounds of appeal. He submitted that there are special circumstances present in this application which must entitle the applicant to be released on bail. The special circumstances in this case were that some of the elements to the charge have not been established and that whole event was a set up. He submitted that there was no evidence that the applicant had done anything or agreed to do anything in his capacity as judicial officer for the K150.00 received or in exchange for the money which was returned. He attempted to demonstrate the strength of his submission by referring to the evidence and the judgment and pointing out the errors and how the grounds of appeal were likely to succeed. He contended that because there was good prospect of the appeal succeeding, these constituted exceptional circumstances for the bail application to be granted.

In support of this submission, Mr. Narakobi has referred me to the case of Major Walter Enuma & Others v The State SC 538. That was a case where a single judge of the Supreme Court granted bail to the appellants because there was a good prospect of the appeals succeeding. In that case the applicant and other soldiers were convicted by a military court and sentenced to various terms of imprisonment. Pending the determination of their appeal to the Supreme Court, the applicants applied for bail. One of their grounds of appeal was the failure by the trial judge to disqualify himself from further presiding in the trial following after a state witness had visited him at his home.

In dealing with the application Kapi DCJ (as he then was) considered the ground of the application and the principles of law applicable in application for disqualification and ruled that there was a good prospect of that ground of appeal succeeding. The rulings were based on a point of law and procedure. His Honour did not discuss the evidence.

Here the complaint is directed to the evidence that came before the court. Mr. Narakobi has invited me to look at the evidence and make an evaluation favourable to his submissions. In this case I do not think it is desirable to evaluate the grounds of appeal as I would in an appeal itself. This was a case of who to believe. The conviction depended on the credibility and demeanor of the witnesses. The trial judge accepted the evidence of the State witnesses and convicted the applicant. The invitation suggested by Mr. Narakobi goes to the merits of the appeal. I do not think it is appropriate to shift through the evidence to decide whether to believe the applicant's defence with a view to finding the presence of exceptional circumstances. Suffice to say, the appeal does not look a very easy one to me.

The circumstances in this case can be distinguished from the above case. 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. (See also Yaip Avini v The State, where the Supreme Court granted bail to the applicant after conviction because the trial judge did not give an opportunity to the applicant to mount a no case to answer submission.) The same cannot be said in this application.

In this case the circumstances presented do not establish a case of "exceptional circumstances". For those reasons the application for bail is refused.

Lawyer for the applicant: Narakobi Lawyers.
Lawyer for the respondent: No appearance.