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Piaro v Kumbamung; Tumbant v Kumbamung [1976] PGNC 47; [1976] PNGLR 283 (2 July 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 283 - Logalio Piaro v Philip Kumbamung; Pup Tumbant v Philip Kumbamung�

[1976] PNGLR 283

N51

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

LOGALIO PIARO AND ANOTHER

V

KUMBAMUNG

Waigani

Kearney J

2 July 1976

CRIMINAL LAW - Bail application - Bail pending appeal from conviction by lower Court - Onus on applicant - Power discretionary - Grounds for exercise of discretion.

Admission to bail on an application pending appeal from conviction by a lower court:

N2>(a)����� is discretionary under s. 45 of the Local Courts Act; there is no right to bail (cf. Constitution s. 42(6)); and

N2>(b)����� will only be granted if the applicant discharges the onus lying upon him of establishing the grounds for his application.

For that discretion to be exercised in favour of the applicant there must be exceptional or unusual grounds for the application, (Himson Mulas v. The Queen, [1969-1970] P. & N.G.L.R. 7 referred to) exemplified by establishing:

N2>(1)����� That the conviction is on the face of it, wrong, the appeal having therefore a real likelihood of succeeding; a mere arguable case is not enough; or

N2>(2)����� That the nature of the case is such that it would really facilitate the preparation of the appeal for the applicant to be free to confer with his counsel; or

N2>(3)����� That, bearing in mind the sentence imposed, there is likely to be a considerable delay in preparing the appeal papers, or an undue delay in the hearing of the appeal for other reasons, with the result that (if he were not bailed) the applicant may have served all of his sentence before his appeal is heard.

Where applicants for bail had lodged appeals against convictions on charges of behaving in a riotous manner thereby contravening s. 30(e) of the Police Offences Act, on the grounds that the convictions were wrong in law in that the magistrate had erred in amending the information by substituting the said charge after hearing evidence on a charge of obstructing a member of the police force in the execution of his duty, and where the only evidence before the court on each application for bail was an affidavit from the Deputy Public Solicitor for each applicant, deposing to the grounds of appeal and stating that in his belief, if bail be not granted the applicants would have served a substantial part of their sentence before the appeal could be heard,

Held

Accordingly, that none of the grounds for exercise of the Court�s discretion having been established, the applications should be refused.

Counsel

A Alpine and IK Kuamin for the applicants

BTJ Sharp for the respondent

2 July 1976

KEARNEY J:� On 27th May, 1976 the Local Court at Wabag sentenced both Logalio Piaro and Pup Tumbant to six months imprisonment with hard labour, on charges of riotous behaviour (s. 30 (e), Police Offences Act). By notices of appeal dated 30th June, 1976, the Public Solicitor as solicitor for the defendants appealed against those convictions. Yesterday he filed the applications for bail pending appeal, now before me.

Mr. Alpine asks that both applications be heard together, and this appears to be a convenient course; the respondent is the same, and does not object. Each application is supported by identical affidavits by the Deputy Public Solicitor in Mount Hagen. In these affidavits the relevant matters deposed to are:

N2>�2.����� I have perused the depositions of the Enga Local Court sitting at Wabag on the 24th day of May, 1976 and these depositions indicate the appellant herein was convicted of behaving in a riotous manner thereby contravening section 30 (e) of the Police Offences Act, the said charge having been substituted after the said court had heard evidence against the appellant on the charge of obstructing a member of the Police Force in the lawful execution of his duty and sentenced the appellant to six (6) months imprisonment with hard labour.

N2>3.������ From my perusal of the said depositions I am of the opinion that there are very substantial grounds for appeal in this matter on the following basis:

That the conviction was wrong in law as the learned Magistrate erred in amending the Information after he had heard the evidence on the charge of obstructing a member of the Police Force in the lawful execution of his duty.

N2>4.������ In my view, if bail is not granted to the appellant, he will have served a substantial part of the sentence before the appeal can be heard by the National Court.�

Mr. Alpine has produced for my inspection what purports to be a copy of the relevant case file in the Wabag Local Court. In the information laid on 27th May, 1976 the offence alleged against the appellants is described as follows:

�did each obstruct a member of the Police Force to wit Constable Peter Sukumbal in the lawful execution of his duty.�

However, immediately below this there follows in handwriting:

�On hearing of evidence charge of riotous behaviour substituted by the Court.�

This statement is initialled by the presiding Magistrate, and bears the seal of the Court.

Lower down on the information, where the particular provision of the law alleged to have been contravened is normally stated, the words �Sect. 30 (e) P.O.O.� have been written in above the typed words �Section 84 of the P.O.O.�.

In the Court document headed �Court Record of a Criminal Case�, the charge is described as follows:

�at Birip did both obstruct members of the Police Force (Wabag) in the lawful execution of their duty substituted RIOTOUS BEHAVIOUR by Court. Contra Section 84 P.O.O. � Sect. 30 (e) P.O.O.�.

On this document it is indicated that Pup Tumbant pleaded guilty, while Logalio Piaro pleaded guilty, but was found guilty.

The rest of the documents produced consist of a copy transcript of evidence taken in the trial of Logalio Piaro (five policemen testified, as did the defendant); together with a statement signed by the Magistrate as to the facts he took into consideration in sentencing Lagalio Piaro.

The exact sequence of events which took place before the Court, is not clear to me. It may be that the reconstruction by the Deputy Public Solicitor, who was not there at the time, is correct � that the Magistrate convicted each of the appellants of an offence other than that upon which he had been charged, asked to plead, and in one case, as to which evidence had been taken � but this is not necessarily so. It may be that the words �on hearing of evidence� written in by the magistrate on the information, refer to some statement by the police of the particular facts alleged, so that the charge could be adequately put to the defendants; and that it was to a charge of riotous behaviour that they were asked to plead.

It is clear to me that a convicted person applying for bail pending the hearing of his appeal, has to establish the grounds for his application. The applicants have so far failed to discharge that burden. It may be that they can; an affidavit by each of the applicants as to what actually took place in court, may be all that is required. I note and appreciate the practical difficulties mentioned by Mr. Alpine as justifying what he says is the usual practice of relying solely upon an affidavit by an officer of the Public Solicitor�s Office, but in this case both the defendants are at Baisu Corrective Institution and therefore readily accessible to his office in Mount Hagen.

I am informed by Mr. Alpine that in this jurisdiction applications for bail by persons appealing to the National Court against their convictions by Local or District Courts, are granted quite readily. Neither Mr. Alpine nor Mr. Sharp were however, in the time available, able to refer me to decisions where the principles governing applications for bail in these circumstances, have been discussed. The approach mentioned in Re Ilett[cccxxiii]¹�and Himson Mulas v. The Queen[cccxxiv]², which emphasize that special circumstances or very exceptional circumstances must be shown, is not, in Mr. Alpine�s submission, applicable when convictions by lower Courts are in question.

In my opinion, no application for bail pending appeal can be dealt with lightly, if for no other reason than that the grant of bail in these circumstances means that a person who has been found guilty and convicted by a competent court and whose sentence of imprisonment still subsists, is nevertheless set free in the community instead of remaining in a corrective institution to serve that sentence. Furthermore, once such a person is freed on bail, the appellate court may, on grounds of humanity, be in something of a dilemma, should the appeal fail and the question arise as to his return to custody; see e.g. R. v. Cullis; R. v. Nash[cccxxv]³. There is a very real distinction between the grant of bail before conviction and the grant of bail after conviction; in the latter case there is no question of any right to bail (cf. Constitution s. 42 (6)).

Mr. Sharp, for the respondent, does not oppose the present applications. I consider it nevertheless my duty to examine the grounds for the applications to determine whether they are grounds upon which bail can and ought to be granted.

Section 45 of the Local Courts Act provides that admission to bail is, in these circumstances, discretionary. It is, I think, desirable to set out what I conceive to be essential grounds, the establishment of one of which is required if that discretion is to be exercised in favour of an applicant; these are:

N2>1.������ That there are exceptional or unusual grounds for the application. This appears to be the only ground, in the English and Australian jurisdictions, and clearly a variety of matters may be advanced to establish it.

N2>2.������ That the conviction is on the face of it, wrong, the appeal having therefore obvious prospects of succeeding. This follows logically as an obverse proposition from the principle that a conviction by a court of competent jurisdiction is prima facie correct � once this presumption is displaced, there is no reason why a convicted person should not be admitted to bail. There should I think be a likelihood of the appeal succeeding; a mere arguable case is not enough.

N2>3.������ That the nature of the case is such that it would really facilitate the preparation of the appeal, for the appellant to be free to confer with his counsel;

N2>4.������ That, bearing in mind the sentence imposed, there is likely to be a considerable delay in preparing the appeal papers, or an undue delay in the hearing of the appeal for other reasons, such as the long vacation, with the result that (if he were not bailed) the appellant may have served all or much of his sentence before his appeal is heard. In the present case, there may be delay; it depends upon the state of the August list.

Grounds 2, 3 and 4 may be regarded as particular applications of the more general ground 1.

As regards the present applications, I think the applicants have not as yet established any of these grounds, and therefore, at this time, and on the materials presently before me, I refuse the applications.

Applications refused.

Solicitor for the applicants: N. H. Pratt, Acting Public Solicitor.

Solicitor for the respondent: L. W. Roberts-Smith, Public Prosecutor.

[cccxxiii]>Unreported - Lalor, J. No. 807, 29th July, 1974.

[cccxxiv][1969-70] P. & N.G.L.R., 7.

[cccxxv] [1969] 1 All E.R. 593 n.