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Kilip v Independent State of Papua New Guinea [2021] PGSC 69; SC2136 (20 August 2021)

SC2136

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO.74 OF 2018

BETWEEN:
STANLEY KILIP
Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: David J
2021: 12^th & 20^th August

CRIMINAL LAW – application for bail after appeal lodged against conviction and sentence by the National Court – relevant principles – exceptional circumstances – onus on applicant to demonstrate exceptional circumstances – prospect of success – welfare of family.

Cases Cited:

Arthur Gilbert Smedley v State [1978] PNGLR 452
John Jaminen v The State [1983] PNGLR 122
The State v Robert Kani Yabara (No.1) [1984] PNGLR 133
Major Walter Enuma & Ors v The State [1997] SC 538
Rakatani Mataio v The State [2004] SC 865
Dendem Tom v The State [2007] SC 914
Dr. Theo Yasause v The State (2011) SC1112
Re Application of Paul Tiensten (2014) SC1343
Dr Theo Yasause v The State (2014) SC1381

Counsel:

Paul Mawa, for the Applicant
Tapas Kametan, for the Respondent

RULING

20^th August, 2021

1. DAVID J: INTRODUCTION: The Applicant, Stanley Kilip has applied for bail pending his appeal against conviction and sentence of 25 years imprisonment imposed by the National Court on 13 December 2018 for the offence of murder contrary to Section 300 of the Criminal Code. The application is made pursuant to Section 42(6) of the Constitution, Sections 5(1)(e) and 10(1)(c) of the Supreme Court Act and Order 11 Rule 8(a) of the Supreme Court Rules. The Applicant instituted his appeal by Notice of Appeal filed on 19 December 2018 challenging his conviction and sentence. On 23 October 2019, the Applicant was granted leave to amend his Notice of Appeal. On 5 November 2019, the Applicant filed his Amended Notice of Appeal.

Evidence

2. In support of the application, the Applicant relies on the:

1. Affidavit of Stanley Kilip sworn on 14 October 2020 and filed on 27 October 2020;
2. Affidavit of Georgina J. Kilip sworn on 14 October 2020 and filed on 27 October 2020;

3. Affidavit of Wek Kilip sworn on 14 October 2020 and filed on 27 October 2020;

4. Affidavit of Pate Wamp sworn on 14 October 2020 and filed on 27 October 2020;

5. Affidavit of Desmond Kami sworn on 14 October 2020 and filed on 27 October 2020;

6. Affidavit of Paul Mawa sworn and filed on 3 June 2021; and

7. Affidavit of Lars Opi sworn on 19 July 2021 and filed on 20 July 2021.

3. The Respondent, The Independent State of Papua New Guinea does not rely on any affidavit.

State’s position

4. The Respondent opposes the application.

Delay in prosecution

5. As no issue was taken by the Respondent on the delay in the Applicant prosecuting the application since its filing on 27 October 2020, I proceeded to hear the application.

The law

6. The principles on grant or refusal of bail after conviction are settled. The grant or refusal of bail is discretionary, but such discretion is exercised only on exceptional circumstances: Arthur Gilbert Smedley v State [1978] PNGLR 452, John Jaminen v The State [1983] PNGLR 122, The State v Robert Kani Yabara (No. 1) [1984] PNGLR 133, Major Walter Enuma & Ors v The State [1997] SC 538, Rakatani Mataio v The State [2004] SC 865, Dendem Tom v The State [2007] SC 914 and Re Application of Paul Tiensten (2014) SC1343.

7. The right to bail guaranteed by Section 42(6) of the Constitution is no longer available post-conviction.

8. Section 11 of the Bail Act allows a convicted prisoner to apply for bail pending the determination of his appeal. The onus is on an applicant to demonstrate to the satisfaction of the Court that there exist exceptional circumstances that warrant his admission to bail. As to what facts constitute exceptional circumstances depend on the circumstances of each case.

Grounds relied on as constituting exceptional circumstances

9. The applicant relies on two main grounds as constituting “exceptional circumstances” and these are:

1. He has a strong prospect of success of appeal.

2. Welfare of his parents and children.

Strong prospect of success of appeal

10. The Applicant contends that his appeal against conviction has a good prospect of success as the National Court made a lot of significant errors both in law and facts in particular on issues of identification and participation.

11. The Supreme Court has stated that if it were to consider the prospect of success of the appeal, it would be tantamount to determining the appeal. Hence, not only would it be an abuse of process, but dangerous as it was not the function of the Court to venture into that arena at this stage to express an opinion on the Applicant’s prospect of success or otherwise in his appeal: see Rakatani Mataio v The State (2007) SC865, Denden Tom v The State (2007) SC914, Dr. Theo Yasause v The State (2011) SC1112, Re Application of Paul Tiensten (2014) SC1343 and Dr Theo Yasause v The State (2014) SC1381.

12. It is instructive that I set out below the relevant observations of the full Court in Rakatani Mataio v The State [2004] SC 865 about the contention under consideration:

“[21] With respect, we are of the opinion that the Court should never be allowed to look at the evidence at this stage of the appeal because it is not the function of the Court to consider the evidence at this stage. To say that the applicant has a good chance of success in his appeal is tantamount to determining the merits of the appeal and this, in our view, is not desirable.........................

[57] It is quite inappropriate and dangerous, in our view, for the Supreme Court to start to determine the issue of the prospect of success of an appeal when the Court is not dealing with the substantive merits of the appeal. It is tantamount to hearing the grounds of appeal and that is not the function of the Court at that stage of the appeal.

[58] For these reasons, we hold that the prospect of success of an appeal is not an exceptional circumstance per se. The circumstances of the whole appeal must be considered, not just the prospect of the success of the appeal.”

13. In the circumstances this ground does not have merit and is dismissed.

Welfare of parents and children

14. The Applicant contends that the health and medical conditions of his old parents, the welfare of his young children who are now without their father and two mothers who have left them in the care and custody of his parents and often subjected to abuse by one of the mothers namely, Georgina Kilip, and the hardships faced by his parents to support themselves and the children physically, emotionally and financially, in total constitute an exceptional circumstance and warrants his release on bail.

15. It is not an uncommon occurrence that when someone is imprisoned, the natural consequence is that others who depend on him will be disadvantaged: John Jaminen v The State [1983] PNGLR 122. In that case, at 124, Pratt, J said:

“If a person is convicted of an offence this implies that the act was perpetrated of his own free adult will, and that certain consequences must inevitably flow from that act if it is discovered and proved beyond reasonable doubt - and that irrespective of whether he is ordinary Mr. Grass Roots or his elected representative. Whatever else constitutes an exceptional circumstance it cannot be something which flows as a natural consequence from the conviction merely because of the status of the convict who performed the offending act in sound mind and body. The choice was his; not the court’s and not the electors’. It cannot be that a circumstance may be regarded as exceptional where it will always apply irrespective of the particular applicant, merely because he formed a member of a class who were required to attend at a particular place for a specified period of time. It cannot be exceptional that a member of Parliament attend at the Chamber or that a convicted member cannot attend because he must undergo sentence, as a result of his own act of free will. Before trial of course he enjoys the Constitutional guarantee that all men are innocent until proved guilty. Ergo, after such proof he is a convict, at least unless and until a court of appeal reverses the decision.”

16. Hardships faced by family members in the various forms demonstrated in the evidence are natural consequences following conviction and sentence for the offence committed by the Applicant. It is not peculiar to the Applicant. Other than that, I cannot see anything in the evidence that is exceptional under the ground relied on.

17. In the circumstances this ground does not have merit and is dismissed.

Conclusion

18. I have dismissed all the grounds of the application. Consequently, I refuse the application.
_____________________________________________________________
Mawa Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent