Kingal v State [2008] PGNC 147; N3498 (1 October 2008)

N3498

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 400 OF 2008

BETWEEN

SIMON PATI KINGAL
Applicant

AND

THE STATE
Respondent

Mount Hagen: Makail, AJ
2008: 24 September
: 1 October

CRIMINAL LAW - Bail after conviction and sentence by District Court - Applicant convicted of dangerous driving causing death - Election to proceed as a summary offence - Criminal Code - Section 328(5) & Schedule 2 - Sentence of 2 years and 6 months imposed and wholly suspended on condition - Payment of compensation of K30,000.00 to relatives of deceased - Breach or default of condition - Committed to prison to serve sentence - Whether exceptional circumstances shown - Arguable grounds of appeal - Whether District Court acted in excess of jurisdiction - Endorsing a compensation agreement of K30,000.00 made before the Peace & Good Order Committee - Imposing compensation agreement of K30,000.00 as condition of suspended sentence - Arguable points of law - Very high likelihood of success - Outcome is readily apparent - Constitution - Section 42(6) - Bail Act - Section 11(c) - Application granted.

APPEALS - Appeals from inferior courts - Filing of entry of appeal - Effect of - Whether operates as an automatic stay of enforcement of District Court order - District Courts Act - Section 227 - Extension of time to file appeal - Filing of entry of appeal following grant of extension of time to appeal - Whether "automatic stay" rule applies - Automatic stay not a ground for bail.

Cases cited:
Arthur Gilbert Smedley -v- The State [1978] PNGLR 452
John Jaminen -v- The State [1983] PNGLR 122
Philip Kapal & Ors -v- The NEC & The State [1987] PNGLR 302
Sangam Mote -v- Alkan Tololo [1996] PNGLR 404
Chong Kong Chen -v- The State (1997) N1698
Gary McHardy -v- Prosec Security & Communication Ltd trading as Protect Security (2000) SC646
Lee -v- Barnabas Mondu (2001) N2059
Lucy Ande -v- Anson Isingi (2001) N2206
Sungu Andrew -v- Helen John (2001) N2031
Haro Mekere -v- The State (2003) N2493
The Application by Lina Edward (2005) N2804

Counsel:
Mr F. Kua, for the Applicant
Mr J. Kesan, for the Respondent

RULING ON APPLICATION FOR BAIL

1 October 2008

1. MAKAIL AJ: In this case, the Applicant was convicted by the Mount Hagen District Court of a charge of dangerous driving causing death under section 328 (5) of the Criminal Code on 10 December 2007, that charge proceeded before the District Court as a summary offence instead of an indictable offence on the basis of an election by the police under Schedule 2 of the Criminal Code.

2. The District Court sentenced the Applicant to two years and six months imprisonment but wholly suspended the sentence on condition that the Applicant pay K30,000.00 as compensation to the relatives of the deceased within six months. An agreement was reached between the Applicant’s relatives and the relatives of the deceased through a mediation before a Peace and Good Order Committee on 30 June 2008 that the Applicant will pay K30,000.00 to the relatives of the deceased and the agreement was subsequently endorsed by the District Court as a condition of the suspended sentence.

3. The Applicant defaulted in complying with the condition although he paid K 3,000.00 before or by the six months expired. A dispute arose between the Applicant and the relatives of the deceased as to the correct amount of compensation the Applicant was to pay. That is, whether it was K 3,000.00 or K30,000.00.

4. Being aggrieved by the decision of the District Court in imposing the K30,000.00 compensation condition, the Applicant having being out of time to appeal that decision sought and obtained leave to file an appeal to the National Court by or before 18 August 2008. As he was unable to file the appeal by this date, he applied and was granted a further extension of time to file the appeal by 22 August 2008 which he eventually did.

5. Whilst that was happening, the police apprehended him and brought before the District Court on the basis that he had defaulted to comply with the condition to pay K30,000.00 to the relatives of the deceased and the District Court committed him to prison to serve out the full term of his sentence.

6. Pending the hearing of the appeal, he applies for bail pursuant to section 42(6) of the Constitution (the Constitution) and section 11(c) of the Bail Act (the Bail Act) based on his application filed on 23 September 2008.

EVIDENCE

7. He relies on the following Affidavits:

1. Affidavit of the Applicant sworn and filed on 23 September 2008;

2. Affidavit of Jim Koka sworn and filed on 23 September 2008; and

3. Affidavit of Michael Mong sworn and filed on 23 September 2008.

APPLICANT’S SUBMISSIONS

8. Mr Kua for the Applicant submits that the principal ground for the application is that, under section 227 of the District Courts Act, the enforcement of the decision of the District Court on 10 December 2007 is automatically stayed pending the hearing and determination of the appeal. This is because the Applicant did file an appeal also an entry of appeal. The entry of appeal operated as a stay of the decision of the District Court. He refers to the decision of Sangam Mote -v- Alkan Tololo [1996] PNGLR 404 per Injia J, (as he than was) to support his submission. For this reason, he submits that the Applicant should be granted bail pending the hearing and determination of his appeal.

9. In the event that the Court grants bail, he says that the Applicant is prepared to submit to any strict conditions of bail that the Court may impose on him. He has two guarantors in the likes of Michael Mong and Jim Koka who have voluntarily pledged to ensure that the Applicant complies with any conditions of bail and also willing to pay cash surety of K 100.00 each.

10. The Applicant pledges to pay K 600.00 cash by asking the Court to convert the police bail of K 600.00 that he paid previously as his cash bail money.

RESPONDENT’S SUBMISSIONS

11. The State opposes the application for bail. Mr Kesan for the State says that bail is not readily available to persons who are convicted and sentenced by the Court but says that it may be granted only in exceptional circumstances. The onus is on the Applicant to show that there are exceptional circumstances present in his case.

12. In the present case, as I understand, it is Mr Kesan’s submission that this is not a case where section 227 of the District Courts Act applies. He submits that this is a case where the Applicant was convicted and sentenced and is now applying for bail. He submits that as the Applicant accepted the decision of the District Court until he breached the condition of his suspended sentence and was subsequently apprehended and placed in detention, it makes it a case falling under section 11(c) of the Bail Act.

13. Hence, this will require the Applicant to demonstrate that there are exceptional circumstances present in his case to support the application. Proceeding on this basis, he submits that the Applicant did not show any exceptional circumstances in his case and so the application should be refused.

THE LAW

14. According to section 11(c) of the Bail Act, where bail is lodged after an appeal, against the Applicant’s conviction or sentence or both conviction and sentence from the Court which convicted him, or from the Court of equal jurisdiction, or from a Court of higher jurisdiction, the Court may, in its discretion, on an application by or on behalf of the Applicant, grant bail pending the hearing of the appeal.

15. This present case also calls for a reconsideration of the application of section 227 of the District Courts Act where appeals are lodged from the District Court to the National Court.

16. It states as follows:

"227. Failure to enter appeal for hearing.

If, within 40 days after the institution of an appeal, the appellant does not enter the appeal for hearing, a Court or Magistrate has the same authority to enforce the conviction, order or adjudication as if it had not been appealed against".

REASONS FOR DECISION

17. Bearing in mind the submissions of both counsels in respect of their respective positions, I consider the three issues emerging for determination are:

1. Whether the filing of an entry of appeal operates as a stay of the decision of the District Court under section 227 of the District Courts Act;

2. If so, can it be a ground for the release of the Applicant on bail in this proceeding? and

3. If I find that it is not, are there exceptional circumstances present in this case for the exercise of discretion in favour of the Applicant under section 11(c) of the Bail Act?

18. In the present case, the 30 days to appeal the decision of the District Court of 10 December 2007 would have expired on 10 January 2008. The further 40 days to file the entry of appeal have expired on 20 February 2008 if we take 10 January 2008 as the cut off date for the filing of the appeal. The Applicant did not take these steps until after these time limitations expired. It was not until the relatives of the deceased allege that he defaulted in complying with the payment of K30,000.00 compensation condition that prompted him to seek leave of the National Court to file an appeal out of time. This is to challenge the correctness of the decision of the District Court to impose condition of K30,000.00 compensation payment.

19. Having initially obtained leave of the Court on 17 July 2008 to file the appeal, it was not until 22 August 2008 when he filed the notice of appeal, recognizance of appeal and entry of appeal after he was granted a further extension of time to appeal on 17 August 2008. When granted extension of time by the National Court, the Applicant did not seek any order for stay of the decision of the District Court pending the hearing of the appeal to the National Court.

Filing of entry of appeal

20. I consider that this present case is a classical example of litigants and lawyers still unsure or confused as to the application of section 227 of the District Courts Act even though cases like Sangam Mote (supra) and Lee -v- Barnabas Mondu (2001) N2059 have made it abundantly clear that the filing of an entry of appeal operates as a stay of the decision of the District Court until the appeal is determined. And this must be done within 40 days from the institution of the appeal. (Underlining is mine).

21. I suppose litigants and generally the people are accustomed to seeing Court orders before acting on Court orders. For example, they expect to see a Court order from the National Court staying the decision of the District Court pending the appeal. If they do not see one, they consider that it is perfectly lawful for them to enforce the decision against the other party. They do not understand that if section 227 of the District Courts Act if literally applied, it is as good as a Court order. And I think that is why in Lucy Ande -v- Anson Isingi (2001) N2206, His Honour late Jalina J, indirectly was making that point when he held that an institution of an appeal does not automatically stay a District Court order because:

"Unlike s.19 of the Supreme Court Act (Chapter 37) which expressly provides that an appeal or application for leave to appeal does not operate as a stay thus requiring specific orders to be obtained to stay certain orders or proceedings, the District Courts Act does not contain any equivalent provisions. It might be argued therefore that in the absence of express provisions in the District Courts Act, an appeal automatically operates as a stay of proceedings.

I, with respect, do not agree with such an argument for the simple reason that it would encourage the appellant to protract or delay the prosecution of the appeal and in doing so deny or frustrate the judgment creditor or a party in whose favour a judgment has been obtained from enjoying the fruits of the judgment. So a specific order for stay of certain orders or proceedings must be applied for and obtained".

22. As one can see, His Honour compared appeals from the District Court to the National Court with appeals from the National Court to the Supreme Court where there is a provision under section 19 of the Supreme Court Act in cases of appeals from the National Court to the Supreme Court which provides that unless there is an order for stay of the National Court decision, an appeal to the Supreme Court does not operate as a stay of the National Court decision.

23. Whilst His Honour’s comparison is correct to that extent, with respect I do not agree that the District Courts Act is silent on the question of stay. First, to my mind section 227 is very clear that "If, within 40 days after the institution of an appeal, the appellant does not enter the appeal for hearing, a Court or Magistrate has the same authority to enforce the conviction, order or adjudication as if it had not been appealed against". Thus, this means that if a person wants to stay the decision of the District Court pending an appeal, he must file an entry of appeal. The entry of appeal must be filed within forty days from the date of the filing of the appeal itself. If that is not done within the forty days, then the decision of the District Court can be enforced against that person.

24. Secondly, if Appellants fail to prosecute their appeals within a reasonable time, then the Respondents may resort to the Court’s discretionary power to dismiss the appeals for want of prosecution. If the application is granted, then there will be no appeal pending and the Respondents may proceed to enforce the decision of the District Court against the defaulting party.

25. Thus, I can see why His Honour Cannings J, did not follow the decision of Lucy Ande’s case (supra) in his judgment of The Application by Lina Edward (2005) N2804. There, His Honour granted an Applicant’s application to extend time to appeal a decision of the District Court in Kimbe after the Applicant was out of time to appeal. The Applicant also sought an order to stay the decision of the District Court pending the appeal. His Honour posed a question, that is, can the "automatic stay rule" apply in a case where the Applicant is out of time to appeal but obtains leave to file the appeal out of time?

26. Just to be on the safe side of things, but to ensure that section 227 of the District Courts Act is not completely ignored, His Honour granted the application for stay. This effectively stayed the decision of the District Court pending the appeal. In granting the application for stay, His Honour relied upon the principles of stay established by the Supreme Court in the case of Gary McHardy -v- Prosec Security & Communication Ltd trading as Protect Security (2000) SC646.

27. Earlier on, His Honour Kandakasi J, in the case of Sungu Andrew -v- Helen John (2001) N2031 agreed with the decision of Sangam Mote’s case (supra) to the extend that when Appellants file an entry of appeal within the prescribed time limit, it had the effect of automatically staying the enforcement of the decision of the District Court appealed from. Likewise upon the institution of an appeal by way of the filing of a notice of appeal and recognizance on appeal under section 220, it also had the effect of automatically staying the enforcement of the decision of the District Court until the expiry of 40 days to allow the filing of an entry of appeal to take place. If within 40 days after the institution of an appeal, no entry of appeal is filed, the decision of the District Court becomes enforceable despite the filing of a notice of appeal and recognizance on appeal. In summary, the appellant has a grace period of 40 days from the date of institution of an appeal against enforcement of the Court order.

28. But His Honour went on to say that in cases where an appeal is lodged within 40 days but no entry of appeal is filed within the 40 days after the institution of the appeal, and the Appellant applies for an order for stay, it becomes necessary for the Court to consider the application for stay. In such cases, how should the Court treat applications for stay?

29. His Honour proceeded to consider the application for stay like the ones that are made in the Supreme Court on the basis that the National Court’s discretion is unlimited and unfettered and that the Court may exercise its discretionary power in an application for stay pending hearing of appeals from the decision of the District Courts. His Honour went on to decide the application based on the principles or guidelines for stay established in the Supreme Court case of Gary McHardy (supra) and in the end, refused the application for stay.

30. Amongst the reasons for refusing the application, His Honour said that the reason for not filing the application for stay in good time was unsatisfactory especially when the Appellant has failed to comply with the decision of the District Court and had filed a belated application for stay.

31. On my part, I am of the view that Parliament enacted section 227 of the District Courts Act to ensure that upon the filing of an appeal within 30 days it operates as a stay and subsequently an entry of appeal within 40 days of the filing of an appeal, it also operates as an automatic stay of the decision of the District Court for two reasons. First, it saves both parties the time and expenses to argue the application and secondly, it enables parties to have an expeditious hearing before the National Court because the right to appeal is a right available to any party aggrieved by the decision of the District Court. See section 219 of the District Courts Act (Appeal to National Court). As the National Court is not the last Court of appeal, I think Parliament intended to relax the law and procedures for appeal to enable aggrieved parties in the District Court the right to ready and easy access to the National Court in an appeal situation.

32. This is where I consider section 19 of the Supreme Court Act is one of the clear differences from section 227 of the District Courts Act. Section 19 requires Appellants to apply for an order for stay of the decisions of the National Court pending the hearing of appeals. This is because the Supreme Court is the last "resort" avenue by which an aggrieved party may seek redress. Only arguable or appeals brought on merit deserve to be heard in the Supreme Court. Thus, a stay of the decisions of the National Court is not granted as of right but at the discretion of the Supreme Court.

33. The other clear difference is that unlike appeals from the District Court to the National Court where parties are not required to apply for leave to appeal from questions of fact, or questions of mixed fact and law and of course interlocutory judgments, the Supreme Court does have those requirements under section 14 (Civil appeals to Supreme Court) and section 22 (Criminal appeals) of the Supreme Court Act.

34. Thus, whilst I accept that the National Court has a wide and unfettered discretion under section 158 (Exercise of Judicial Power) and section 166 (Jurisdiction of the National Court) of the Constitution, I am of the view that where legislations provide for the exercise of powers of the National Court, the National Court should exercise its powers according to the powers granted by the legislations. The Court’s wide and unfettered discretionary power under the Constitution should be exercised as a "last resort" and there must be good and convincing reasons for asking the Court to do so.

35. Proceeding on this basis, with respect, I do not agree that where Appellants have lost their rights to file entry of stay of the decisions of the District Court within 40 days of the institution of the appeals are at liberty nonetheless to file applications for stay and ask the National Court to stay the decisions. The first problem I have with this proposition is that, there is no provision under the District Courts Act or the National Court Act giving Appellants the statutory right to file applications for stay. Similarly, I can find no similar provision like that of section 19 of the Supreme Court Act in the National Court Act providing for applications for stay.

36. The second problem I see with this proposition is that, the principles for application for stay under section 19 of the Supreme Court Act should not apply to applications for stay in the National Court as the National Court and the Supreme Court are two separate Courts and have separate jurisdictions under two separate enabling legislations. Whilst the Supreme Court is conferred jurisdiction under section 19 of the Supreme Court Act to make orders for stay, there is no same or similar provision in the National Court Act conferring jurisdiction to the National Court to make orders for stay. Thus, I consider that it would be wrong to impose on the National Court the jurisdiction to make orders for stay by applying the principles of stay established by the Supreme Court in the National Court.

37. This leads me to the third problem and that is, if the Court is asked to grant stay of decisions of the District Court, then what is the point of having section 227 of the District Courts Act? In my view, asking the National Court to grant application for stay would open itself to abuse. Litigants will always want orders for stay and the Court will be inundated with such applications. This brings me back to the observation I made at the opening of my reasons for decision and that is, that litigants and generally the people are accustomed to the seeing and acting on Court orders and expect to see a Court order from the National Court staying the decisions of the District Court pending the appeal before they cease to enforce the decisions of the District Court.

38. That is why I am of the view that any person aggrieved by the decisions of the District Court must file an entry of appeal within 40 days from the institution of the appeal to stay their enforcement. If entries of appeal are not filed, the law as it is allows the decisions of the District Court to take effect not withstanding that there are appeals pending in the National Court. By law, (the decision of the District Court itself), the successful party is at liberty to enforce the decisions if the unsuccessful party fails to comply with them.

39. Thus, I consider that Appellants who fail to comply with the statutory requirements of the District Courts Act such as filing of entry of appeals within 40 days of the institution of the appeal must not flip back so to speak and apply for stay. Once they loose that right to stay the decisions of the District Court, they are stuck with them. They must live with the consequences of their failure and that is to comply with the decisions of the District Court regardless of any pending appeals.
It is my view that the only way they can prevent this from happening is to expedite the appeal. Otherwise, to avoid being placed in this kind of awkward situation, they must file an entry of appeal within 40 days of the institution of the appeal to the National Court. In this respect, I distinguish the case of Philip Kapal & Ors -v- The NEC & The State [1987] PNGLR 302 a judgment of His Honour Hinchliffe J, which His Honour Kandakasi J, referred to in Sunga Andrew’s case (supra).

40. There, His Honour Hinchliffe J, declared the suspension of the Western Highlands Provincial Government by the National Executive Council void and of no effect. This came about after Phillip Kapal issued proceeding against the State challenging the decision to suspend the Western Highlands Provincial Government. Later on that day after the decision of the Court, the Defendant made application to the same Court to stay the declaration because it intended to appeal that decision to the Supreme Court.

41. At that time no appeal papers were lodged at the Waigani Supreme Court Registry otherwise the matter would have been out of the control of the National Court and into the jurisdiction of the Supreme Court. This situation was confirmed by a telephone inquiry to the Supreme Court that the Defendants were given a Supreme Court appeal number but had not filed the appeal papers. It was submitted that the stay order was sought pursuant to Order 13, rule 21 of the National Court Rules which provides that "The Court may, on terms, stay execution of a judgment or order".

42. His Honour held that the Court may grant a stay of proceedings where the Applicant demonstrates a reason or an appropriate case to warrant the exercise of the discretion in its favour and it is not necessary that special or exceptional circumstances should be made out. Nonetheless, His Honour refused the application as the Applicant did not demonstrate to his satisfaction "an appropriate case" for the exercise of discretion in its favour.

43. In the present case, the Applicant lodged an appeal and is pending hearing. The matter is now outside the jurisdiction of the District Court. It is in the jurisdiction of the National Court. Further, it is not a case where the matter is initially before the National Court and the National Court is being asked to make an order for stay pending appeal papers to be lodged at the Supreme Court Registry.

44. Hence, it would require the Court to exercise its wide and unfettered discretion pending appeal documents lodged in the Supreme Court. Here, there is section 227 of the District Courts Act which provides for a stay of the decision of the District Court once the Appellant files an entry of appeal. Thus, in my respectfully view there is no basis for the Court to exercise its wide and unfettered discretion in the present case.

45. From all these discussions, the practical application is this; where the Applicant like in this case is convicted and sentenced by the District Court and files an appeal and entry of appeal within the time limitations, the conviction and sentence are automatically stayed pending the appeal. In my view, it follows that there is no legal basis to commit the Applicant to prison and also to require him to apply for bail under section 11(c) of the Bail Act.

46. Conversely, in my view as there is no provision of an "automatic stay" in appeals from the National Court to the Supreme Court, an Applicant who is convicted and sentenced to prison or otherwise by the National Court and appeals the decision to the Supreme Court must comply with the decision of the National Court by serving out the imprisonment term if it is a prison sentence. The only way out of this is to apply for bail under section 11(c) of the Bail Act pending the appeal. In the words, the decision of the National Court takes effect on the date of pronouncement.

47. As the Applicant did file an appeal and also an entry of appeal on 22 August 2008, I accept Mr Kua’s submissions that the filing of the entry of appeal automatically stays the decision of the District Court. I accept that this is the position at law notwithstanding the fact that the appeal under sections 220 and 221 of the District Courts Act was filed outside the 30 days and the entry of appeal was filed outside the 40 days under section 227 of the District Courts Act.

48. I am confident with the position I take although as I have observed earlier, His Honour Cannings J, was not too sure which position to take in his decision of The Application of Lina Edward (supra). I say this because I consider that, they do not affect the operation of the entry of appeal as the time to appeal was extended outside the 30 days time limitation by the National Court on 17 July 2008 and further extended until 22 August 2008.

49. It follows by operation of law (the Court Order granting extension of time to appeal) that the 40 days was time limit to file an entry of appeal extended upon the filing of the appeal on 22 August 2008 which time would have expired on or around 2 October 2008. In this case, the Applicant simultaneously filed the appeal and entry of appeal on 22 August 2008, thus there is no cause for concern here. Hence, the decision of the District Court should be or should have been stayed by operation of law pending the hearing of the appeal.

Can the stay of the decision of the District Court be a ground for release of the Applicant on bail in this proceeding?

50. This issue is pretty much straight forward. As I have found that by operation of section 227 of the District Courts Act, the decision of the District Court of 10 December 2007 should be or should have been stayed, can it be a basis for the release of the Applicant on bail in this proceeding? First, the decision of the District Court should not have been enforced in the first place until the appeal is determined. As it has been enforced, when the Applicant was apprehended and committed to prison on 12 September 2008, I cannot make a finding that the warrant of commitment is void ab initio because that is not the relief the Applicant is seeking before this Court.

51. In my view, it is not a ground for bail. I consider that the correct process is for the Applicant to seek declaratory orders to declare void the warrant of commitment and for his release. As this is not the application before the Court, there is no basis for me to order the release of the Applicant on this ground. Hence, I make no order under this ground.

Exceptional circumstances

52. This leads me to the next issue and that is whether or not the Applicant has demonstrated that there are exceptional circumstances present in this case for the Court to exercise its discretion in his favour and grant him bail.

53. It is accepted that the Court may take into exceptional circumstances when considering as application for bail after conviction and sentence but the onus is on an Applicant to prove that there exist exceptional circumstances. See Arthur Gilbert Smedley -v- The State [1978] PNGLR 452 and Chong Kong Chen -v- The State (1997) N1698

54. Further, the Courts have held that arguable grounds of appeal do not constitute an exceptional circumstance in an application for bail after conviction. See again the cases of Arthur Gilbert Smedley (supra) and Chong Kong Chen (supra). This is because bail is no long available as of right and the presumption of innocence is no longer there for the Applicant who has been convicted of a crime and sentenced by a court of competent jurisdiction.

55. However, it was said in the case of Haro Mekere -v- The State (2003) N2493 by His Honour Gavara-Nanu J that where there is a good prospect of success on appeal, the authorities overwhelmingly establish that bail can only be granted where there is very high likelihood or an extra ordinarily high prospect of success. His Honour referred to Chong Kong Chen’s case (supra) and in John Jaminan -v- The State [1983] PNGLR 122 where the outcome is readily apparent. These cases provide the meaning and the test to be applied, when determining whether the applicant has a good prospect of success on appeal. His Honour said that an appeal raising a point of law is arguable. (Underlining is mine).

56. In this case, I note that there are three grounds of appeal in the notice of appeal. The first two grounds are relevant and they are in the following terms:

"1. The learned magistrate erred in law in endorsing a compensation award for K30,000.00 made by the Peace and Good Order Committee in that the District Court does not have the jurisdiction to make monetary awards exceeding K10,000.00.

2. The learned magistrate erred in law in entertaining a compensation award made by the Peace and Good Order Committee and adopting it as its own order".

57. In my view, these grounds of appeal raise first the issue of the monetary jurisdiction of the District Court and secondly the issue of the legality of the District Court to accept and endorse an agreement reached between the disputing parties before the Peace and Good Order Committee as part of the condition of the suspended sentence of the Applicant.

58. This grounds of appeal stem from the decision of the District Court to impose a sentence of two and half years imprisonment term and wholly suspending it on condition that the Applicant pay compensation of K30,000.00 to the relatives of the deceased within six months of the decision. I consider that prima facie, these two grounds are strong arguable grounds of appeal. The first ground raises a point of law, that is whether the District Court has the monetary jurisdiction to impose a condition of a suspended sentence of K30,000.00 compensation award in a case where a person is convicted and sentenced to imprisonment. Of course we know that the monetary jurisdiction of the District Court is K10,000.00. See section 21 of the District Courts Act.

59. When the Applicant was alleged to have breached or defaulted in complying with the condition, I assume that the District Court acted on its power under section 171(1) of the District Courts Act to commit the Applicant to prison. Section 171(1) states:

"171. Warrant of commitment in other cases.

(1) Where -

(a) a conviction does not adjudge the payment of a fine, but that the defendant be imprisoned for his offence; or

(b) a Court orders the doing of an act other than the payment of a fine or sum of money or costs and directs that, in case of the defendant's neglect or refusal to do the act, he shall be imprisoned, and the defendant neglects or refuses to do the act,

the Court or a Magistrate may issue a warrant of commitment for the imprisonment of the defendant for such time as the conviction directs.

(2) .........".

60. The question is, can the District Court impose a sum of money of K30,000.00 which section 171(1)(b) refers to on a person convicted by the District Court of an offence like in this case, the Applicant as a condition of his suspended sentence?

61. The second ground of appeal raises the issue of the legality of the District Court to accept and endorse the agreement to pay K30,000.00 compensation reached between the disputing parties before the Peace & Good Order Committee as part of the condition of the suspended sentence of the Applicant. That is, can the District Court adopt the agreement of the parties reached at the Peace & Good Order Committee as a condition of a suspended sentence? It is also an arguable point of law.

62. These questions, in my view, raise arguable points of law. I can say that this is a case where there is a very high likelihood or an extra ordinarily high prospect of success and where the outcome is readily apparent. Hence, I am satisfied that the Applicant has demonstrated that there are exceptional circumstances present in his case. (my underlining)

CONCLUSION

I grant the application on the following conditions:

1. The Applicant pay cash bail of K 600.00 and his police cash bail be converted as National Court bail money.

2. The guarantors each pay K200.00 cash surety.

3. The Applicant is not to drive any motor vehicles whilst awaiting his appeal.

4. The Applicant is to report to the Assistant Registrar of the Mt Hagen National Court every Mondays of each fortnight between the hours of 9:00 am and 3:30 pm.

5. The Applicant is to appear at every National Court Call over whenever required.

6. The Applicant is not to leave the Western Highlands Province unless with leave of the Court.

Paul Paraka Lawyers: Lawyers for the Applicant.
Acting Public Prosecutor: Lawyers for the State