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Chong Kong Chen v The State [1997] PGNC 107; N1698 (3 September 1997)

Unreported National Court Decisions

N1698

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP 274 OF 1997
CHONG KONG CHEN
V
THE STATE

Waigani

Sevua J
29 August 1997
3 September 1997

CRIMINAL LAW – Practice and Procedure – Bail Application after conviction – Conviction by National Court – Bail Act, s.11 – Test – Exceptional circumstances must be shown – Whether good prospect of success on a ground of appeal amounts to exceptional circumstances.

Held

(1) &&#160ersop who who has beas been convicted and has lodged an appeal against that conviction and is seeking bail pursuant to s.11 of the Bail Act must show "exceptional circumstances.” Arthur Gilbert Smedley –v- The State (1978) PNGLR 452 followed.

(2) Tce faat thereths a ieasoneasonable probability that the appeal could succeed does not of itself constitute “exceptional circumstances.” Arthur Gilbert Smedley –v- The State () fol.

Cases Cited

Arthur Gilbert Smedley –ats- The State [1978] PNGLR 452

R –ats- Southgate (1960) 78 WN (NSW) 44

Chamberlain –ats- The Queen (No. 1) [1983] HCA 13; (1983) 153 CLR 514

Counsel

B. Gamogab for the Applicant

C. Manek for the Respondent

3 September 1997

SEVUA J: The prisoner was convicted on 21st August, 1997 of one count of forgery, one count of uttering and one count of misappropriation and sentenced to two (2) years imprisonment on each count. The sentences were to be served concurrently. He now, has applied for bail, pursuant to s.11 of the Bail Act, pending his appeal, which the Court is informed, was filed on 25^th August, 1997.

The applicant’s counsel’s submissions revolve around the grounds of appeal, which I have not read and do not want to read for obvious reasons. Counsel’s principal submission was that there is a good prospect that the appeal against the third count (misappropriation) would succeed. When asked if this amounted to exceptional circumstances, Mr. Gamogab answered in the negative. I consider counsel’s response correct as that is the law.

Counsel went on to make submissions on various aspects of the evidence, which really touched on the issue of conviction and thus the merits of the appeal.

It is my view that, as counsel’s submissions touched on the merits of the appeal, the Court dealing with this type of application must be very cautious in determining this application, so that the merits of the appeal are not used as the yardstick to grant bail after conviction. Whether the appeal can succeed or not is not the issue here. Listening to grounds of appeal to support a submission that the appeal would succeed is tantamount to hearing the appeal itself.

It seems to me that the applicant has presented arguments to support an arguable case, however, on the authorities in this jurisdiction, this does not constitute “exceptional circumstances.” The applicant must show that he has an extraordinary high prospect of success rather than an arguable case. The grounds of appeal must be such that can be seen without detailed argument, to be certain to succeed. In my view, it is not sufficient to show merely an arguable ground of appeal or even one, which has a reasonable prospect of success. It has been settled in Arthur Gilbert Smedley –v- The State [1978] PNGLR 452, that, prima facie the ground of appeal are of an arguable nature does not of itself constitute an “exceptional circumstances.” I follow and apply that principle here.

Mr. Gamogab has referred to s.9 of the Bail Act and said it does not apply and he is correct in saying that. Section 9 does not apply to a bail application following conviction. Even the constitutional right to bail stipulated in s.42(6) of the Constitution does not apply. That constitutional right is not available after conviction.

It must be remembered, I think, that the applicant was convicted by a properly constituted Court and his guilt must be taken to have been established by a proper tribunal of fact (jury). In R –v- Southgate (1960) 78 WN (NSW) 44, the NSW Court of Appeal said at 44:

“When the guilt of the appellant has been established by the jury’s verdict in what must be taken – until the contrary be shown – to have been a trial properly conducted and without error of law, it is most unusual that he should be admitted to bail pending the determination of his appeal.”

Despite the fact that s.11 of the Bail Act provides a discretionary power to the Court to grant bail to a person who lodges an appeal following his conviction, it is my view that the Court considering his application must be very serious and cautious in its consideration. The principle, in my view, is that the Court must not be seen as undermining the administration of criminal justice.

In Chamberlain -v- The Queen (No. 1) [1983] HCA 13; (1983) 153 CLR 514, Brenan, J said at 519-529:

“to grant bail pending an appeal from a 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.” (my emphasis)

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 appellate Court.

In the present case, counsel for the appellant has submitted that the appeal could succeed, however, I am not satisfied that “exceptional circumstances” which is the test in this type of application, has not been demonstrated. The submissions presented do not establish a case of “exceptional circumstances.”

For these reasons, this application for bail is refused.

Lawyer for Applicant: Bubi Gamogab

Lawyer for Respondent: Public Prosecutor