Aisi v Malkom Bai [1976] PGNC 4; N52 (26 July 1976)

Unreported National Court Decisions

N52

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO. 111 OF 1976 (P)
BETWEEN
PAUL JEROL AISI
APPELLANT
AND
MALKOM BAI
RESPONDENT

Waigani

Kearney J
23 July 1976
26 July 1976

CRIMINAL LAW - bail pending appeal against short sentence by District Court - inherent and statutory power of Court to grant bail - grounds for exercise of discretion.

APPLICATION FOR BAIL

KEARNEY J: On 12th July, 1976 the District Court at Boroko sentenced the appellant to imprisonment for one month upon a charge, to which he had pleaded guilty, of unauthorized interference with a motoicleN52.html#_edn1012" t12" title="">[mxii]¹.

On 20th July, an appeal against that sentence was instituted by lodging a Notice of Appeal with the Clerk of the District Court; presumably a recognizance on appeal was entered into. The Magistrate made his Report under Section 231(2) of the District Courts Act 1963 on the same day.

On 21st July, all the papers necessary for the appeal to be heard, including the Magistrate’s Report, were transmitted by the Clerk of the District Court to and received by the Registrar of this Court.

On 22nd July, an application for the release of the appellant from custody pending the hearing of the appeal was made to the District Court pursuant to Section 229 of the District Courts Act 1963; it was refused.

On 23rd July, an application for bail was made before me. The District Court record of the proceedings on 22nd July, and an affidavit by the appellant of 21st July there relied upon, were tendered. The Public Prosecutor was informed of the application.

Counsel submitted that where an appeal to it is pending, this Court has an inherent power to grant bail. It is rather surprising that there is no express statutory power to do so, as there is in the case of appeals from Local CourtsN52.html#_edn1013" title="">[mxiii]², or in appeals pending before the Supreme CourtN52.html#_edn1014" title="">[mxiv]³, or in habeas corpus proceedings in this Court involving convictions by District CourtsN52.html#_edn1015" title="">[mxv]⁴. If there is inherent power to admit a convicted person to bail, its source must be the Constitution; there is no other: see the authorities collated in Ex parte LewisN52.html#_edn1016" title="">[mxvi]⁵. The appeal being properly instituted, I consider that Constitution S. 155(4) vests inherent power in this Court to grant bail pending the hearing, where the circumstances are such that justice would not otherwise be done. In any event, I consider s.565 of the Criminal Code is an adequate statutory power to grant bail, in these circumstances.

Counsel made three submissions, each founded upon Logalio Piaro v. Philip KumbamungN52.html#_edn1017" title="">[mxvii]⁶. He submitted first that it is not necessary to establish exceptional or unusual grounds for the application. It is sufficient, in his submission, if any one of the four essential grounds set out in that Judgment, is established. That is formally correct, but at page 6 of the Judgment it is said:

“Grounds 2, 3, and 4 may be regarded as particular applications of the more general ground 1.”

Ground 1. is that there are exceptional or unusual grounds for the application.

The true position therefore is that it is necessary for an applicant for bail pending appeal to establish “exceptional or unusual grounds”, a concept which clearly encompasses a vide variety of matters, three particular instances of which appear as grounds 2, 3 and 4 in Logalio Piaro v. Philip KumbamungN52.html#_edn1018" title="">[mxviii]⁷ (Supra).

Counsel next submitted that ground 4 was in fact established: that bearing in mind the relative shortness of the sentence (one month), if the l was heard in the normal course - that is, in September - the appellant by then would have have already served his sentence, and his appeal would be meaningless.

Two inter-related matters here require consideration: the length of the sentence, and the time which will elapse before the appeal can be heard. As to the first, the sentence expires on 11th August, and accordingly if the appeal is not heard by the end of this week, it loses much of its point. As to the second, I pointed out to Counsel on 23rd July that, as far as the Court was concerned the appeal could have been heard that day; likewise, it could be heard to-day, or at any convenient time this week. Appeals against sentence, of this type, are usually not lengthy matters. While short sentences present a particular problem when considering bail pending appeal, I see no reason why, if the appeal can be speedily heard, bail should be granted. In such cases the appeal should be promptly entered for hearing; no doubt the notice required under Section 234 of the District Courts Act 1963 would frequently be waived, by the respondent.

The third submission was that upon the facts, exceptional or unusual grounds were established. The appellant is a preliminary year student at the University. On 12th July he was not represented by Counsel, and put nothing to the District Court in mitigation of sentence. He now deposes in relation to his one month’s sentence, in the affidavit I have mentioned, as follows:

“7. &#That I now know the failufailure to attend these classes at University for that period will be likely to have an adverse effect my enacadeareer21;

That statement was supported by the testimony of t of the Dehe Dean ofan of prel preliminary year students, before the District Court on 22nd July. In addition, before that Court, the Dean undertook that, as far as he could, he would guarantee that the appeal would be prosecuted without delay, and if it failed, the applicant would return to custody.

I have carefully considered this submission. It is unnecessary to decide whether these facts establish unusual or exceptional grounds, since the appeal will be heard to-morrow and bail should not now be granted; however, I doubt whether they do so.

For the reasons mentioned, I refuse the application.

Solicitor and Counsel for the Applicant: D. Boston

012">N52.html#_ednref1012" title="">[mxii]^{An offence under s.15, Motor Traffic Act 1950}

N52.html#_ednref1013" title="">[mxiii]^{s. 45, Local CourtCourts Act 1963.}

N52.html#_ednref1014" title="">[mxiv]^{s. 6(1)(c) Supreme Court Act 1975.}

N52.html#_ednref1015" title="">[mxv]^{s. 249, District Courts Act 1963}

N52.html#_ednref1016" title="">[mxvi] ^{[1972] 3 S.A.S.R. 145.}

N52.html#_ednref1017" title="">[mxvii]^{Unreported - Kearney, J. No. N. 51, 2nd July, 1976.}

N52.html#_ednref1018" title="">[mxviii]^{Unreported - Kearney, J. No. N. 51, 2nd July, 1976.}