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Yaki v The State [1990] PNGLR 513 (14 December 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 513 - Roy Yaki v The State�

[1990] PNGLR 513

SC402

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

YAKI

V

THE STATE

Waigani

Kapi DCJ Hinchliffe Jalina JJ

30 November 1990

14 December 1990

CRIMINAL LAW - Practice and Procedure - Bail application - Pending appeal - Proper procedure when application refused - Fresh application to Full Supreme Court - Supreme Court Act (Ch No 37), s 10(1), (2).

CRIMINAL LAW - Practice and procedure - Bail application - Pending appeal - Exceptional circumstances - Member of parliament - Electorate responsibilities not exceptional - Bail Act (Ch No 340), s 11.

Held

(1)����� Where an application for bail pending appeal is made to a single judge of the Supreme Court under s 10(1) of the Supreme Court Act (Ch No 37) and refused, a fresh application may be made to the Full Supreme Court under s 10(2) of the Supreme Court Act: an appeal to the Full Supreme Court is not available.

(2)����� The requirement to show exceptional circumstances for a grant of bail pending the hearing of an appeal under s 11 of the Bail Act (Ch No 340) was not satisfied in respect of a member of parliament convicted of misappropriation of public funds by:

(a)����� the desirability of attending personally to the responsibilities of the electorate; or

(b)����� the desirability of personally interviewing witnesses who might give fresh evidence on appeal and where a solicitor was retained.

John Jaminen v The State [1983] PNGLR 122 and The State v Yabara (No 1) [1984] PNGLR 133, considered.

Cases Cited

John Jaminen v The State [1983] PNGLR 122.

State, The v Yabara (No 1) [1984] PNGLR 133.

Application for Bail

Following refusal of a bail application by Brown J sitting as a judge of the Supreme Court pursuant to s 10(1)(c) of the Supreme Court Act (Ch No 37), the applicant filed a notice of appeal, which the Supreme Court treated as a fresh application under s 10(2).

Counsel

E Kariko, for the applicant.

V Noka, for the respondent.

Cur adv vult

14 December 1990

KAPI DCJ HINCHLIFFE JALINA JJ: The appellant was convicted by the National Court at Mt Hagen on 1 August 1990 of dishonestly applying to his own use the sum of K10,871.56, the property of the Eastern/Western/Simbu/Enga and Southern Highlands Provincial Governments, contrary to s 383a of the Criminal Code (Ch No 262). He was sentenced to two years imprisonment. The appellant has now appealed against both his conviction and sentence. Pending the hearing of the appeal, the appellant applied for bail pursuant to s 11 of the Bail Act (Ch No 430). That matter came before Brown J sitting as a judge of the Supreme Court pursuant to s 10(1)(c) of the Supreme Court Act (Ch No 37). His Honour came to the conclusion that the appellant failed to show any exceptional circumstances to entitle him to be on bail.

The appellant by a notice of appeal appealed against the decision refusing bail. At the hearing, it was pointed out to counsel that the true nature of the proceedings before this Court is an application to the Supreme Court rather than by way of an appeal. Under s 10 of the Supreme Court Act, where a single judge decides the question of bail, s 10(2) entitles the appellant to apply to the Supreme Court for the matter to be determined by the Full Supreme Court. By consent it was agreed that the notice of appeal before this Court is to be treated as an application before the Supreme Court. The significance of this is that the appellant is not confined to the evidence that was given before Brown J but he may call any other evidence which he wishes to call. However, the appellant in this case simply relies on the evidence that was led before the National Court which consists of an affidavit of Mr Roy Yaki and an affidavit of Mr Ere Kariko. The transcript of evidence of the trial before Woods J was also admitted to be part of the evidence relating to the bail application.

Both counsel appearing in this Court agree that the principles of law which govern an application for bail after conviction are settled and they are that the applicant must show exceptional circumstances before bail may be granted. The argument before us was whether or not exceptional circumstances had been shown to exist in the application. Counsel for the applicant has submitted that there are exceptional circumstances in this case which are established by any one of the following three grounds:

1.������ responsibilities, peculiar to this applicant, towards his electorate;

2.������ his need to instruct counsel; and

3.������ the prospects of the success of his appeal to the Supreme Court.

RESPONSIBILITIES TO THE ELECTORATE

The applicant is a member of the National Parliament representing the people in the electorate of Ialibu-Pangia in the Southern Highlands Province. The applicant submits that National Development Fund allocation of K100,000 was granted to him for use in various projects in his electorate. He also submits that he must account to the Finance Department for these moneys before the end of this year. He submits that in order to do a proper acquittal of these funds he needs to visit the projects personally to ensure that the money has been correctly used as directed. He further submits that if he does not fully account for this money, the interest of his electorate for future NDF funds will be affected.

He also makes reference to an amount of K45,000 which has been allocated for schools in the province. He has submitted that this amount was allocated to Ialibu and Pangia High Schools, a vocational school and two community schools in his electorate. He submits that he needs personally to attend to ensure that this money has been correctly used and proper acquittal to the Department of Finance is submitted.

This issue has been considered by the National Court in the case of John Jaminen v The State [1983] PNGLR 122. In that case the applicant was convicted of four counts of rape and was sentenced to four years imprisonment. The applicant represented the people of Yangoru-Saussia electorate in the National Parliament. One of the grounds which was urged before the National Court as constituting exceptional circumstances was that as the applicant was a member of Parliament, he would not be able to attend the sittings of the House unless he was granted bail and thus the people of Yangoru-Saussia would be deprived of the presence of their duly elected member during the parliamentary sittings. The National Court dealt with the issue as follows (at 124):

�Whilst it may possibly cause some temporary hindrance to the people of Yangoru-Saussia electorate, that they are not represented in the coming meeting of the House of Parliament, it may also be that following the Supreme Court sittings at the end of May, they will not have any representation until after a by-election. These people of course have a right to expect that the law will be properly enforced by the duly appointed courts and that a person will not receive special treatment in the eyes of the law merely because he is a politician. The problem may highlight the fact that the rule of law in a democratic society is a constant balance between, an individual, a group and the citizenry as a whole. Furthermore, it is difficult to see in the ultimate how being a politician whether national or provincial becomes an exceptional circumstance merely because the member has been convicted and sentenced. 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.�

It would appear that two principles emerge from this passage. First, the mere fact that a person is a politician and has been convicted is of itself not an exceptional circumstance. Second, the fact that a member of Parliament has duties to attend to in the sittings of the Parliament and other duties connected with his electorate and that he is prevented because of his conviction and sentence from attending to these duties does not amount to an exceptional circumstance.

As to the second matter, the applicant has not given specific evidence about the various projects which may require the necessity of his personal attendance. It appears to us from the evidence that the nature of accounting for the moneys to the Department of Finance can be done satisfactorily from custody. What is required is for accurate reports from recipients of these funds to be provided to the applicant in custody who may then submit a report to the Finance Department. The principles stated in this case were approved by the Supreme Court in the State v Yabara (No 1) [1984] PNGLR 133. The Court dealt with the issue in these terms (at 135):

�With respect to any suggestions of having difficulty in managing or completing one�s affairs whilst one is imprisoned we can only say that every person who stands trial for crime must regard himself as in jeopardy of conviction. If he fails to make provision in relation to his affairs against the possibility of conviction, that failure cannot be treated as an exceptional circumstance justifying bail pending appeal: R v Giordano [(1982) 6 A Crim R 397] at 399 and R v Patmoy (1944) 62 WN (NSW) 1.�

THE NEED TO INSTRUCT COUNSEL

We fail to find any basis for this argument. The applicant is serving his term in Bomana prison where his lawyer, the Public Solicitor, has easy access to him in the prison. The applicant�s complaint is not that he has any difficulty in instructing the lawyer but in his affidavit he has stated that he wishes to call three ex-premiers to give evidence on the hearing of his appeal. As we understand the applicant, he submits that it is necessary for him to personally speak to these three ex-premiers in order to obtain their evidence for purposes of the hearing on the merits of the appeal. It is submitted that this is not possible through his lawyer, the Public Solicitor. We fail to see any basis for this argument. We do not see any difficulty for the applicant to instruct his lawyer and then to enable his lawyer to seek instructions from the three ex-premiers. Obtaining of instructions from these witnesses is no different from obtaining instructions from any other witness.

THE PROSPECTS OF APPEAL

We understand that counsel for the applicant does not argue the success of the applicant�s appeal on all the grounds of appeal that have been set out in the notice of appeal. We understand that this argument is based on what has been referred to as an irregularity in the conduct of the trial. The irregularity as Mr Kariko has outlined is as follows: When the trial was conducted the whole of the State evidence was admitted by consent. This included statements by the three ex-premiers. They were therefore State witnesses. However, it appears that at the close of the prosecution case, counsel appearing for the applicant then indicated to the court that apart from calling the applicant to give evidence he would be calling the three ex-premiers as defence witnesses. It appears from the record of the trial that the trial judge simply regarded these as defence witnesses and after giving the applicant several adjournments to call these witnesses decided that he would not give any further opportunity to enable the applicant to find these witnesses. As we understand the complaint by counsel for the applicant, the moment that defence counsel indicated that he would be calling the three ex-premiers, it was the duty of the trial judge to state correctly the position, that is, that these three ex-premiers were State witnesses and that their statements were in the evidence and what in fact the defence was requesting was to cross-examine the State witnesses. It would appear that this is the correct view. That is, as these three witnesses had their evidence admitted by consent as State witnesses, the defence had a right to cross-examine them. Had this been the situation then it would have been the duty of the court to ensure that these witnesses were made available for cross-examination before closing the trial. Or alternatively, if they were not made available (as was the position in this case), the question of whether any weight should be given to their evidence should be questioned. The appellant does not claim that the dismissal of the evidence of these three ex-premiers would affect the conviction. He claims that there is a possibility that they may give fresh evidence which may be relevant to the conviction. This, however, is merely speculation. Counsel has not obtained any instructions from them to date. Consequently, we are of the opinion that this ground of appeal is not likely to succeed. We do not consider that this ground has any merits.

We consider that the applicant has failed to discharge the onus that exceptional circumstances exist for the court to grant him bail. Therefore the application is dismissed.

Application dismissed

Lawyer for the applicant: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.