Tom v Suprintendant of Corrective Institute [2004] PGLawRp 30; [2004] PNGLR 43 (27 October 2004)

NATIONAL COURT OF JUSTICE

SAM AND DENDEN TOM

V

THE SUPERINTENDENT OF CORRECTIVE INSTITUTE

ALOTAU: LAY J

27 October 2004

CRIMINAL LAW – Practice and Procedure - Bail Act s 11 – Bail pending appeal from conviction for murder – Second application to a single judge – First application refused – Change of circumstances – Prisoner injured in custody of Correctional Service – Not exceptional circumstances.

Facts

The applicants applied for an order of habeas corpus and for bail pursuant to s.11 of the Bail Act, pending an appeal from conviction for murder. The applicants alleged that one of them had been attacked and injured by a warder whilst in custody of the Correctional Service and that new evidence by a dying declaration and a newspaper article in which Police were alleged to have attributed the murder to someone else tended to show the applicants were not guilty. This was the 2nd application for bail.

Held

1. There must be a substantial change of circumstances so that the application is different in nature to justify a second application for bail, pending the appeal. The evidence produced did not establish a sufficient change of circumstances to justify a second application to a single judge. Injury within a Correctional facility would not be a ground for bail unless the prisoner would not be safe in any Correctional facility. The dying declaration by the applicant's victim did not place the appeal in the "foregone" conclusion class. The newspaper article was of no probative value.

2. Arguments raised on the first application on the merits of the appeal and repeated in the second application should not be re-considered because there was insufficient change of circumstances to justify the second application before a single judge.

Papua New Guinea cases cited

Acting Public Prosecutor v Andew Lalaiva & Angeol Ume SC201.
Arthur Smedley v State [1978] PNGLR 452.
Chong Kong Cheng v The State (1997) N1698.
Ex parte Arthur Smedley [1978] PNGLR 156.
Jacob Wama Kelekawi v State (2003) N2356.
John Jaminen v State [1983] PNGLR 122.
Logalio Piavo & Ano v Kumbamung [1986] PNGLR 283.
Re Keating [1983] PNGLR133.
Re The Bail Act; Application by John Wilford Gibson (1990) N903.
Re Thomas Marcus N1931.
Rolf Schubert v State [1978] PNGLR 394.
The State v Yabara (No.1) [1984] 133.
Walter Enuma v State SC538.
Yaki v State [1990] PNGLR 513.

Other cases cited

Giordani (1982) 6 A. Crim. R. 397.
R. v Nash [1969] 1 All ER 593.
R. v Lancastle (1978) Crim. L. R. 367.

Counsel

MsTamalis Akus, for the applicants.
Ms J Nidue, for the Public Prosecutor.

27 October 2004
Ruling on bail application

Lay j. This matter first came before me on 14 September 2004 on the hearing of a motion pursuant to Order 17 of the National Court Rules for an order for Habeas Corpus of the body of Sam Tom. The proceedings were commenced by Originating Summons seeking Habeas Corpus, bail for both applicants and declarations in relation to alleged breaches of human rights, and damages.

On reading two of the six affidavits filed the applicant, Sam Tom, alleged he had been badly beaten by warders and his left shoulder dislocated on or about 14 June 2004. This arose from a false allegation that he had insulted a warder. He received no medical treatment. I ordered that the applicant be brought before me that day. On his production I had Sam Tom brought into the witness box where he demonstrated 1 – 2 cm well healed scars on the right and left shoulders, a slight drooping of the left shoulder and a claim that his left arm was immobilised. Otherwise he appeared to me well muscled and well nourished. I ordered that he be taken to the Alotau General Hospital and that a medical report be prepared for the assistance of the Court. The matter was adjourned until that could be done. I made no other order at that time as the principal purpose of habeas corpus is to enquire into whether the custody in which the person is held is lawful. As Mr. Narokobi conceded, there could be no issue that such custody, being pursuant to a warrant issued by this Court, was anything but lawful.

The matter next came before me on 23 September 2004 for hearing of the bail application when the applicants, aged 29 and 25 years respectively, relied upon all of the affidavits filed. There were no affidavits filed by the respondents.

I summarise the evidence as follows. On 14 or 15 June 2004 at GiliGili CIS after the inmates had been put in their cells an inmate called out to the Chief Sergeant using a 'nick name' no doubt calculated to irritate the warder. Warders then accused the applicant Sam Tom of making the remark and called him a troublemaker. He denied having made the remark and was supported by other inmates. Another inmate confessed to making the remark. However, one of the warders pressed the alarm bell and other warders then came and fired tear gas into the cells. After some time with all the inmates in the tear gas filled cells the warders let the inmates out, belting them with a mattock handle, an iron bar and other implements, as they came out of the cells and after they had come out. The applicant Sam Tom was singled out and struck with these implements by a number of warders. He names Private "N" as his accuser and Corporal "L" as the person responsible for hitting him with an iron. I have not included the full names of the officers in my reasons as they have not been personally joined or served with these proceedings and thus cannot defend themselves against the allegations. Sam Tom says of Corporal "L":

• "He dislocated my left shoulder and tore both my biceps. They so severely bashed the other inmates. That evening 15 of us were severely wounded and needed medical attention."
  

A medical officer at Alotau General Hospital examined the applicant Sam Tom pursuant upon my order and reported:

"Left shoulder – dropped with restricted function of the joint. Xray film number W2689 was insignificant and no old fractures.

Left shoulder injury healed due to time elapse of 3 months. Has developed stiff joint now from disuse of the joint. He was advised on physiotherapy and analgesics (pain killers)."

The applicants fear that they will be subject to further abuse now that they have made public complaint and because of their "outspoken attitude".

Detainee Assessment Reports put into evidence the same report in respect of each applicant:

"...has a satisfactory behaviour and attitude, however he sometimes challenges instructions and tries to lead other detainees against the administration. Otherwise he is co-operative most of the times."

There was 'fresh' evidence of matters which should have been adduced at the trial, namely the affidavit of Philip Makiawai averring to a dying declaration by the murdered person attributing the shooting to another person and the affidavit of Mathew James annexing a newspaper report of the Police attributing the murder of which the applicants were convicted, to another person the Police had shot dead.

The applicants can afford to post a bail bond of K1000 but not more. The CIS have no money to transfer the applicants to Port Moresby for the hearing of their appeal.

The Law

It has long been settled that to obtain bail pending an appeal to the Supreme Court the applicant must show exceptional circumstances: The State v Yabara (No.1) [1984] PNGLR 133, where the Supreme Court approved Rolf Schubert v State [1978] PNGLR 394, Arthur Smedley v State [1978] PNGLR 452 and John Jaminen v State (No.1) [1982] PNGLR 122.

Very good prospects of success of the appeal can amount to exceptional circumstances: Walter Enuma v State SC 538. Very good prospects usually means "...the outcome of the appeal is a forgone conclusion and readily apparent.": John Jaminen v State (supra).

Prima facie arguable grounds of appeal does not constitute exceptional circumstances: Arthur Smedley v State (supra).

It has to be kept in mind that in an application for bail pending an appeal the accused was convicted by a properly constituted court and his guilt established "...in what must be taken, until the contrary is shown to be a trial properly conducted without error of law". The presumption of innocence no longer applies, nor do the provisions of section 9 of the Bail Act and section 42(6) of the Constitution. Although, even before conviction on a charge of willful murder s.42(6) of the Constitution does not give accused a right to bail and s.9(1)(c) of the Bail Act shifts the onus to the accused to show that his continued imprisonment is not justified: Re Keating [1983] PNGLR 133.

After conviction the Court must be very vigilant and cautious in its consideration of such applications because to grant bail (a) whittles away the finality of the verdict: Chong Kong Cheng v. The State [1997] N1698; (b) easy access to bail may encourage numerous unmeritorious appeals: Giordani,(1982) 6 A Crim.R.397 (as applied in Yaki v State [1990] PNGLR 513); (c) persons admitted to bail easily persuade themselves that they will never have to be returned to custody: R v Lancastle (1978) Crim.L.R. 367, referred to in Acting Public Prosecutor v Andrew Lalaiva and Angelo Ume, SC 201; (d) "the appellate court may, on grounds of humanity, be in something of a dilemma, should the appeal fail and the question arise as to his return to custody"; see e.g. R. v. Cullis; R. v. Nash [1969] 1 All E R 593 (referred to in Logalio Piaro and Another v Kumbamung [1986] PNGLR 283). Where the application is based on personal circumstances, such as the medical condition of the prisoners the applicant must make out an extra-ordinary case: Jacob Wama Kelekawi v The State (2003) N2356.

Once guilt has been established and a conviction entered the issue of bail is a matter of exercise of the discretion of the court, freed from the strictures of s.9 of the Bail Act applying before conviction, to be exercised on proper principles. Bail after conviction is governed by ss.11 & 13 of the Bail Act and s.10 of the Supreme Court Act. Section 11 of the Bail Act grants jurisdiction and s.10 of the Supreme Court Act and s.13 of the Bail Act deal with the order in which the different Court levels will exercise that jurisdiction.

Supreme Court Act

10. Powers that may be exercised by Judge.

(1) Any power of the Supreme Court under this or any other Act—

(a) to give leave to appeal; or

(b) to extend the time within which notice of appeal or of an application for leave to appeal may be given; or

(c) to admit an appellant to bail,

may be exercised by a Judge in the same manner as it may be exercised by the Court.

(2) Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court.

Bail Act

11. Bail after lodging appeal.

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

(a) the court which convicted him; or

(b) a court of equal jurisdiction; or

(c) a court of higher jurisdiction, may, in its discretion, on application by or on behalf of the appellant, grant bail pending the hearing of the appeal.

13. Further application may be made after refusal.

(1) Where a person is refused bail by a Magistrate he is entitled to apply for bail, immediately if he so desires, to a Judge of the National Court.

(2) Where a person is refused bail by a Judge of the National Court he is entitled to apply for bail, immediately if he so desires, to the Supreme Court.

(3) Where an application is made under Subsection (1) or (2), the applicant shall produce a copy of the reasons given under Section 16.

(4) An application may be made under Subsection (1) or (2) whether or not bail was refused—

(a) under this Act (including this section) or under any other law; or

(b) on an application.

Once application for bail has been made under section 11 of the Bail Act to a judge of the Supreme Court and it has been refused s.10(2) of the Supreme Court Act and s.13(2) of the Bail Act require that the next application in respect of the same matter be made to the full Supreme Court. That application may be based on such further evidence as the applicant wishes to call: Roy Yaki v State (supra).

The Supreme Court and Bail Acts do not permit that the same application for bail be heard a second time by another single judge. There has to be a substantial change of circumstances so that the application is different in nature, for it to be proper for the National Court pursuant to s.11(b) or a single judge of the Supreme Court pursuant to s.11(c) and s.10(1)(c) of the Supreme Court Act to entertain a fresh application. It is well established that to make a second application for bail under Section 9 of the Bail Act or to make a second application for permission to leave the country under section 23 of the Bail Act, before a single judge, the applicant must show that there has been a substantial change of circumstances. See Re Thomas Marcus N1931 in relation to the requirement for a substantial change of circumstances to make a subsequent application under s.9 of the Bail Act. See also the arguments for the requirement of a substantial change of circumstances to make a second application in relation to s 23(2) of the Bail Act (applications to leave the country): Re the Bail Act; Application by John Wilford Gibson (1990) N903 and Ex parte Arthur Smedley [1978] PNGLR 452. These authorities requiring a substantial change of circumstances before a second application can be made to a single judge of the National or Supreme Courts under sections 9 and 23 are both relevant. I have not been able to find a reported Papua New Guinea case authority applying that principle to section 11 of the Bail Act. I consider that the same principle must be applied by this Court to subsequent applications under s.11, where the applicant does not seek to make that subsequent application to the full Supreme Court. Without a substantial change of circumstances which makes the application significantly different in substance, it would be a clear breach of the provisions of the two Acts for a single judge to consider the application.

The threshold question for me to determine therefore is, do the facts disclose a substantial change of circumstances which would enable me to treat this application as a new application and not just a re-cast version of the application made to Justice Davani in 2003?

The applicant filed 8 pages of written submissions. I have had the benefit of reading the decision of Justice Davani which helpfully sets out the evidence before her and a detailed consideration of it. From that material and a comparison with the applicant's submissions, it is obvious to me that all of the issues relating to the likely success of the appeal contained in the submissions filed were argued before and considered by Justice Davani and do not constitute any change of circumstances. The only new material is a dying declaration and the medical evidence in relation to Samuel Tom. The fresh evidence of the dying declaration was submitted to Davani J. but not considered because that bail application was made in the Supreme Court Appeal and to consider the evidence in those proceedings would have been to admit the evidence as "fresh" for the purposes of the appeal.

Dealing firstly with the "fresh" evidence of Philip Makiawani, he relates to a conversation with the dying deceased as follows:

PM: Did you see the people who shot you?

Deceased: I saw only one.

PM: Whom did you see?

Deceased: Siba.

I do not see how I can deduce from that conversation, without a full consideration of the evidence before the trial Court, that the prisoners were not part of a party which took part in the murder or that it was highly likely to be so to the point that the outcome of the appeal is obvious or a foregone conclusion.

The second item of fresh evidence is the affidavit of Matthew James attaching an article from the now defunct "Eastern Star" headed Hardcore Criminals shot dead by cops." The Article says that "according to Alotau Police the criminal was suspected of a number of crimes last year", one of those crimes being the murder for which the applicant prisoners have been convicted. It will be a sad day for justice when the results of a National Court trial, with all its procedures and protection for the accused, is set aside, albeit perhaps temporarily, on the basis of vaguely attributed suspicions appearing as hearsay in a newspaper. It does no credit to the lawyers for the applicants that this populist approach to the proof of facts has been put forward in this Court as evidence. I find the newspaper article of no probative value at all.

As to the evidence of the injury to Samuel Tom it is clear from the medical report that use and exercise of his left arm is what is required now to regain full function of it. The claims in the affidavits of fear for the prisoners' future welfare seem to me to be fanciful and not based on anything other than the injury to the applicant Samuel Tom.

It is a statutory duty of the Correctional Institutes Service to take care for the welfare of the prisoners under an officer's charge. Section 37 of the Correctional Services Act provides as follows:

37. Duties of members.

The duties of a member are—

(a) to be responsible for the preservation of order, cleanliness and peace within the correctional institution and among the detainees and for the diligent performance by the detainees of their allotted tasks; and

(b) to ensure that the security of a correctional institution or the custody of a detainee is not jeopardized; and

(c) to respect and protect human dignity and maintain and uphold the human rights of all persons in the performance of the member's duties; and

(d) where he is the correctional officer in charge of a correctional institution or part of a correctional institution, to take all reasonable steps for the security of that correctional institution or that part of that correctional institution; and

(e) where he is a correctional officer in charge of detainees, to take all reasonable steps for their safe custody and welfare; and

(f) such other duties as are contained in this Act or as are prescribed by the Regulations or Standing Orders or as are directed by the Commissioner.

If an officer is not fulfilling those duties then the prisoner has his remedies. However it would be an extraordinary case where treatment by CIS officers of a prisoner justified bail. I think it would have to be such extraordinary circumstances that the prisoner was not safe in any Correctional Institute in the country. Where a prisoner's welfare is genuinely in jeopardy in one Institute then the appropriate course would be for him to be transferred to another. It takes little imagination to envisage the multitude of unmeritorious appeals which would be received if the belief gained currency amongst prisoners that a physical injury attributed to a prison officer would be a good foundation for bail pending appeal.

There are no changed circumstances at all in respect of Denden Tom other than that he is the brother of Samuel Tom and claims to be affected by the same fears for his future welfare as his brother. As in the case of his brother, I do not consider those fears well founded, or that bail would be the answer if they were well founded.

I do not consider that the new material put forward does constitute a sufficient change of circumstances to justify a further application to a single judge. For that reason it would be inappropriate for me to enter into a fresh consideration of the merits of the appeal, given that there is insufficient change of circumstances to justify the application; and also given that I am in a far less advantageous position than Davani J., not having the transcript of evidence before me.

The applications for bail are refused.

The applicants' appeals were filed two years ago. Their interests are best served by their lawyers getting those appeals on for hearing as soon as possible.

Lawyers for the State: State Prosecutor.
Lawyer for the applicants: Narokobi Lawyers.