Nuke v Nevosi [2008] PGDC 9; DC672 (13 March 2008)

DC672

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

DCCr 39 of 2008

BETWEEN

MARY NUKE
Police Informant/Respondent

AND

NASON NEVOSI
Defendant/Applicant

GOROKA: G VETUNAWA
2008: March 13

Cases Cited
1. John Jamina –v- The State [1983] PNGLR 122

References
Section 6 (3) of the Summary Offences Act
Section 11 of the Bail Act
Section 19 (1) of the Bail Act

Counsel
Police Prosecutor: Senior Constable Asi from Goroka Police Station
Defendant: Mr. Brian Koningi of Koningi Lawyers for the Applicant

JUDGEMENT

G Vetunawa: The defendant was charged for unlawful assault of one Nedie Zebedee under Section 6 (3) Summary Offences Act. The defendant was found guilty by the Goroka District Court and was sentenced to four (4) months imprisonment in hard labour at Bihute jail.

2. On March 12, 2008 the defendant/ applicant lodged an appeal in the National Court of Justice against the sentence imposed by the Goroka District Court presided over by Mr. Martin Ipang. The appeal was filed by the defendants/ applicants lawyer, Koningi Lawyers.

3. The bail is being applied for under Section 11 of the Bail Act.

4. Section 11 of the Bail Act reads:

Bail After Lodging Appeal

Where a person lodges an appeal against his conviction or sentence or both –

(a) the Court which convicted him
(b) a Court of equal jurisdiction may in its discretion, on application by or on behalf of the appellant grant bail pending the hearing of the appeal.

5. Under the law there must be exceptional circumstances existing in order for the Court to grant bail to the defendant who has been sentenced and is now a prisoner and appealing to the National Court as a prisoner.

6. In the case of John Jaminan –v- The State [1983] PNGLR 123 Praitt J stated that:

“For Bail to be granted following conviction there must be exceptional circumstances shown, not mainly special circumstances. Relevant matter may include the likelihood of the success of the appeal (where the outcome is a forgone conclusion and readily apparent), or where the preparation of the appeal may be assisted by the release of the appellant or where there is a lengthy intervening vacation in the calendar of the Appeal Court.”

7. In this case the sentence imposed is four (4) months In Hard Labour which is a short period. It is also a fact that due to the shortage of judges in the National Court cases do take longer time to complete and I do not think this defendant/ applicant would be given a special treatment by the National Court to have his appeal case heard quickly ahead of many other cases registered.

8. If this prisoner is not released on bail pending his appeal it is not likely that his appeal would be completed by the National Court as soon as possible.

9. The prisoner is appealing against mainly the sentence and therefore it is important that his appeal should be heard before he served the sentence. In other words the likelihood of his appeal been completed after he had completed serving the four months sentence amounts to an exceptional circumstance warranting the granting of bail.

10. As well a Jack Vitovito, a Police Constable of Goroka Police Station also volunteered to be the guarantor under Section 19 (1) of the Bail Act.

11. Section 19 (1) of the Bail Act reads:

“A Bail authority may require as a condition of bail that no more than two guarantor approved by it undertake to see that the person granted bail appears at a time and place set for his trial and complies with the condition (if any) of bail.”

12. I therefore now grant bail to the prisoner after lodging his appeal in the sum of five hundred kina (K500.00) to be paid. I also apply Section 19 (5) (a) which reads:

“A Bail authority may require a guarantor – to lodge an amount of money in support of his undertaking.”

13. Therefore I also order the guarantor Constable Jack Vitovito to pay the sum of five hundred kina (K500.00) same time as the prisoner pays his bail.

Prosecutor: Senior Constable Asi from Goroka Police Station
Defendant: Mr. Brian Koningi of Koningi Lawyers