Jaminan v The State [1983] PGLawRp 492; [1983] PNGLR 122 (2 May 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 122 - John Jaminan v The State 

[1983] PNGLR 122

N410(L)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOHN JAMINEN

V

THE STATE

Waigani

Pratt J

2 May 1983

CRIMINAL LAW - Practice and procedure - Bail - Pending appeal - “Exceptional circumstances” - Conviction for rape - Member of Parliament - Sittings of Parliament before appeal to be heard - Not exceptional circumstance - Bail Act 1977, ss 9, 11.

On an application for bail by an appellant, a member of Parliament, who had been convicted on four charges of rape, one of the grounds relied upon was that the applicant would not be able to attend the sittings of the Parliament to be held before the appeal was heard and his electors would thereby be deprived of their due representation.

Held

N1>(1)      The applicant needed to show “exceptional circumstances” to be granted bail pursuant to s. 11 of the Bail Act 1977.

Re Ilett [1974] P.N.G.L.R. 49; Schubert v. The State [1978] P.N.G.L.R. 394, and Smedley v. The State [1978] P.N.G.L.R. 452, applied.

N1>(2)      Whilst “exceptional circumstances” must in some way be related to the particular applicant, they need not be confined to matters entirely personal to the applicant such as health, financial situation or previous good character, but they cannot include that which flows as a natural consequence of the conviction because of the particular status of the convicted person.

N1>(3)      In the circumstances there were no exceptional circumstances and bail should be refused.

Cases Cited

Cooper, Re [1961] A.L.R. 584.

Ilett, Re [1974] P.N.G.L.R. 49.

R. v. Southgate (1960) 78 W.N. (N.S.W.) 44.

R. v. Wise (1924) 17 Cr. App. R. 17; 17 C.A.R. 17.

Schubert v. The State [1978] P.N.G.L.R. 394.

Smedley v. The State [1978] P.N.G.L.R. 452.

Bail Application

This was an application for bail pursuant to the Bail Act 1977 by an appellant who had been convicted and sentenced on four charges of rape.

Counsel

B. Narokobi, for the applicant.

K. Roddenby, for the respondent.

Cur. adv. vult.

2 May 1983

PRATT J: This was an application under s. 11 of the Bail Act 1977 for bail by a member of Parliament who was convicted last week on four counts of rape and sentenced to four years imprisonment with hard labour concurrent on each count by Woods A.J at the sittings of the National Court in Mt. Hagen. The applicant represents the people of Yangoru-Saussia electorate. I dismissed the application and indicated that I would publish my full reasons at a later stage.

A number of grounds have been mentioned in the application including the likelihood of success on appeal, the necessity to make certain re-arrangements in personal affairs to facilitate the instruction of counsel on appeal, and the fact that before and during the trial the applicant remained on bail. However, an additional ground was added at the hearing before me namely, as the applicant is a member of Parliament he would not be able to attend at the sittings of the House commencing Monday, 2 May unless bail were granted and thus the electors of Yangoru-Saussia would be deprived of the presence of their duly elected member during Parliamentary sittings. It was in effect, conceded by both Mr Narokobi for the applicant and Mr Roddenby for the respondent, that the law applicable to the circumstances of Papua New Guinea is as set out in Re Ilett [1974] P.N.G.L.R. 49, Schubert v. The State [1978] P.N.G.L.R. 394, and Smedley v. The State [1978] P.N.G.L.R. 452, together with the authorities referred to therein, and that the only real matter for argument before me was whether or not an exceptional circumstance had been shown to exist in this application. Section 11 of the Act grants a wide discretion and is not restricted by the s. 9 matters mentioned in other sections of the Act.

With great respect to Lalor J, I think it is most unfortunate that a reference to “special” circumstances has crept into legal terminology. In Ilett’s case Lalor J relied heavily on the judgment of Fullagar J in Re Cooper [1961] A.L.R. 584, and whilst it is true that counsel in Cooper’s case used the term “special” circumstances, the term used by Fullagar J, and by most, is “exceptional” circumstance. I do not think anything is to be gained from changing the terminology although the Oxford dictionary shows that there is certainly an analogy between the word “exceptional” and the word “special”. For the sake of consistency I agree that the term “exceptional” is the more preferable.

Whilst I agree with Mr Roddenby that lack of political representation for the people of Yangoru-Saussia electorate is rather a matter “exceptional” to them than to the applicant himself and whilst it is clear that the circumstance must be related in some way, to the particular applicant, I do not think the authorities, such as they are, restrict the exceptional circumstance to something entirely personal to the applicant such as his health, his own financial situation or his previous good character, etc. Amongst the factors which may on occasions have a bearing on the circumstances are the likelihood of success of the appeal (the outcome is a foregone conclusion and readily apparent) or where the preparation of the appeal might be assisted by the release of the appellant: See R. v. Wise (1924) 17 Cr. App. R. 17 and a lengthy intervening vacation: R. v. Southgate (1960) 78 W.N. (N.S.W.) 44.

As pointed out during argument, ss 103 and 104 of the Constitution have a combined effect of disqualifying a member of Parliament who has been convicted and sentenced to a period of at least nine months imprisonment and either the appeal period has expired or any appeal lodged on the member’s behalf has been unsuccessful. One can well understand why such a provision is made in the Constitution when one considers the amount of time and effort and money which would be consumed in mounting a by-election if it were all to come to naught because of a successful appeal. I do not think either counsel pressed consideration of these sections upon me as matters which would assist in coming to a conclusion on the exercise of the court’s discretion under s. 11.

The applicant is still a member of Parliament. Nevertheless he has been lawfully convicted by a duly established court presided over by a judge appointed under the Constitution and Organic Laws of the country. Until the Supreme Court says otherwise the conviction stands. As Sugerman J said in R. v. Southgate (supra at 44), “The guilt of the appellant having been established by the verdict of a jury in what must be taken, until the contrary be shown, to have been a trial properly conducted and without error of law, ...” 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. 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.

I also do not consider that any of the other grounds of application have sufficiently established, an exceptional circumstance.

For these reasons I dismissed the application for bail.

Application dismissed.

Lawyer for applicant: B. Narokobi.

Lawyer for respondent: L. Gavara-Nanu.