Matupit v Maki [2013] PGNC 272; N5241 (11 March 2013)

N5241

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

APP.NO 44 OF 2013

IN THE MATTER OF AN APPLICATION FOR BAIL AFTER CONVICTION PURSUANT TO SECTIONS 11 OF THE BAIL ACT (CH.NO.340)

BETWEEN

JOE MATUPIT
Applicant/Appellant

AND:

POLICE CONSTABLE TOBBY MAKI
Respondent

Kokopo: Lenalia, J.
2013: 7th & 11th March

APPEAL – Application for bail – Bail after conviction and sentence by District Court– Applicant convicted after having been found guilty of having in possession of dangerous drug.

PRACTICE & PROCEDURE – Application for bail – Conviction and sentence by the District Court – Relevant principles – "Exceptional circumstances."

BAIL – Right to bail after conviction and sentence – Bail pending appeal – Section 11 of the Bail Act – Having considered the "exceptional circumstances "on this application, the Court refuse bail.

Cases cited

Paul Verol Aisi v Malkom Bai (1976) N52
Auther Gilbert Smedley v The State [1978] PNGLR 452
John Jaminan v The State [1983] PNGLR 122
Chong Kong Chen v The State (1997) N1698
Rakatani Mataio v The State (8.6.07) SC865
Simon Pati Kingal v The State (1.10.08) N3498
Major Walter Enuma and Others v The State (30.12. 97) SC538
Robin Warren and 4 Others v The State (17.12.03) SC725
Charles Posanu and David Koyama v The State (1.5.09) SCAPP.Nos.2 & 3 of 2009

Counsel

Mr. E. Paisat, for the Applicant
Mr. L. Rangan, for the Respondent

11th March, 2013

Historical Background

1. LENALIA, J. The applicant/appellant on this application was charged for permitting other persons to consume liquor on a moving vehicle contrary to s.6(2) of the Liquor (Miscellaneous Provisions) Act. On 20th February 2013, he appeared before the District Court at Keravat which convicted him and sentenced him to three (3) months imprisonment. That Court also suspended his driving licence for three (3) months. The applicant has filed a Notice and Recognizance of Appeal dated 6th March 2013.

2. He filed his Notice of Appeal against the conviction and sentence on 21st May 2010. He has also filed a Recognizance on Appeal. Pending the hearing of his appeal, he now applies for bail pursuant to s.11 of the Bail Act. This section states:

"11. 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.

Submissions by counsels

3. Mr. Paisat of counsel for the applicant/appellant submitted that his client's circumstances warrants grant of bail pending the hearing of the appeal because there exists an highly prospect of success of the appeal because the District Court in Keravat erred in law when it convicted the appellant primarily on the basis of excessiveness of the sentence when the learned Magistrate imposed the prescribed maximum of three months. Counsel further argued that, because his client is a businessman, there exist "special circumstances" or "exceptional circumstances" in term of cases such as Rolf Schubert-v-The State [1979] PNGLR 66 or the case of John Jaminan-v-The State [1983] PNGLR 122.

4. Counsel further argued that on an application for bail after conviction and sentence an applicant ought to show exceptional circumstances. Counsel urges that this Court has wide discretion under s.11 of the Bail Act to grant or refuse bail.

5. That in the circumstances of his client's application, the applicant has shown his application that the loss of business would create matters personal to the applicant's application there are reasons which create exceptional circumstances and the Court should grant bail to his client.

6. Mr. Rangan of counsel for the Respondent objected to this application. In his submission counsel argued that, the applicant/appellant has been formally convicted and sentenced by the District Court a Court of law. Counsel submitted that, the applicant was properly convicted on his plea thus there are no errors on the part of the sentencing discretion of the learned Magistrate.

7. Counsel submitted that this application must be differentiated from an ordinary bail application made under ss.4 and 6 of the Bail Act and s.42 (6) of the Constitution where the considerations under s.9 of the Bail Act apply. Counsel submitted that because no exceptional circumstances have been established, this court should refuse the application. Mr. Rangan however submitted that, this Court has a wide discretion to either refuse or grant bail the pending.

Consideration of whether to grant or refuse bail.

8. The issue is whether the applicant has demonstrated that there are exceptional circumstances present on his application for this Court to exercise its discretion in his favour and grant him bail.

9. It is an accepted principle of law that, the Court may take into account exceptional circumstances when considering an application for bail after a conviction and after pronouncement of a sentence by a Court of law. The list of case law authorities both by the Supreme Court and National Court say that the onus is on an applicant to prove that there exists exceptional circumstances: Aurther Gilbert Smedley-v-The State [1978] PNGLR 452 and see Chong Kong Chen-v-The State (1997) N1698 and Simon Pati Kingal-v-The State (1.10.08) N3498.

10. The case of John Jaminan-v-The State [1983] PNGLR 122 establishes that exceptional circumstances in some way must relate to an applicant and must entirely confine to personal circumstances such as health, financial situation but they do not include consequences following conviction and sentence.

11. The Courts in this country and other Commonwealth jurisdictions including Australia as discussed by the Supreme Court in Rakatani Mataio-v-The State (8.6.07) SC865 have upheld and maintain the principle that bail is not readily granted to an applicant who has been convicted of a criminal offence and has appealed and is waiting for the prosecution of his/her appeal unless exceptional circumstances are shown.

12. The constitutional presumption of innocence and the right to bail are no longer available to a person who has been convicted and sentenced to an imprisonment term. There is no constitutional provision to bail after a conviction. Once a person has been convicted and sentenced, the right to bail no longer exists. As the authorities show, if the applicant on this applicant desires bail, he ought to demonstrate to this Court that there in his favour exists exceptional circumstances warranting his release on bail.

13. The case of Rakatani Mataio-v-The State (supra) disapproved the decisions in Major Walter Enuma and Others-v-The State (30.12. 97) SC538 and Robin Warren and 4 Others-v-The State (17.12.03) SC725. The reason for that is because the emphasis in those cases was there was no likely hood of success in those appeals. The earlier case was presided over by late Kapi, DCJ (as he then was) while in the later one the presiding Judge was late Jalina, J. The Court followed the decision in Walter Enuma's case.

14. The applicant has filed his appeal and has entered into a recognizance of appeal pursuant to s.200 (a) (b) of the District Courts Act. Appeals from the District Court lies to the National Court as provided for under s.219 of the Act. Section 220 of the Act states:

"220. Institution of appeal.

(1) An appeal under Section 219 shall be instituted—

(a) by notice of appeal; and

(b) by entering into a recognizance on appeal, or by giving other security as specified in Section 222.

(2) An appellant shall give notice of his intention to appeal by lodging, within on month after the day when the decision is pronounced, a notice of appeal with the Clerk of the Court by which the conviction, order or adjudication was made."

15. Note here that pursuant to s.223 of the District Courts Act an appellant could apply for bail pending his appeal in the District Court before the magistrate who presided on the matter or another magistrate. The case of Paul Verol Aisi-v-Malkom Bai (1976) N52 establishes that it is necessary for an applicant pending appeal to establish "exceptional" or "unusual grounds" which principle encompasses a variety of considerations.

16. I am of the view that the variety of considerations includes factor referred to in the case of John Jaminan-v-The State (supra) such as, heath, financial situation or previous good character. However such considerations cannot include those factors which flow as a natural consequence of the conviction and sentence because of the particular status of the convicted person.

17. I consider the comments in the above cases on the issue of "exceptional circumstances" and wish to say that, the decisions in the above cases emphasize and reflect what appears to be an entrenched culture in this jurisdiction where Courts have considered the evidence in the trial at this stage of the appeal to determine whether an application should be granted. This should not be the case.

18. In this jurisdiction the earlier PNG cases used the same reasoning as the Court in some of the above cases. With respect, I am of the opinion that the Court should never be allowed to look at the evidence at this stage of the appeal because it is not the function of the Court to consider the evidence at this stage to see if there is likelihood of success. To say that the applicant has a good chance of success in his appeal is tantamount to determining the merits of the appeal and this in my view, is not desirable as it would be too premature to determine the success or otherwise of the pending appeal.

19. The next issue is this Court notes that the majority of the applicant's guarantors are closely related to the applicant/appellant. Eddie Matupit and Shamain Matupit are biological brother and sister of the applicant while Delilah Manoa is the 1st cousin sister. I remind myself of the Supreme Court decision in the case of Charles Posanu and David Koyama (1.5.09) SCAPP.Nos.2 & 3 of 2009 which says that, the practice of engaging family members as guarantors is risky as practice has shown that, many bailees do not turn up as ordered by the Courts: Charles Posanu and David Koyama (1.5.09) SCAPP.Nos.2 & 3 of 2009.

20. I am of the view that for the interest of justice, I will not consider the guarantees pledged or given by those three guarantors. The only guarantor that this Court will accept is Okole Batilom. Okole is the Ward Committee of Nguvalian village in the Raluana Local Level Government area.

21. Having considered the exceptional circumstances raised on behalf of the applicant/appellant, and having considered counsels' submission on this application, I m of the view that the lawyer for the applicant/appellant can expedite the hearing of this appeal by filing an index to the appeal and the appeal book and the matter goes for hearing.

22. Having considered the above consideration, the application before me is not an ordinary application. It is one where the applicant/appellant has been sentenced by a court of law, the District Court. Courts must be cautious in considering applications of this nature because, on this case, the applicant was convicted on his plea.

23. The issue about the applicant/appellant being sentenced under a wrong Subsection will, I think, be the main ground of appeal a part from the issue of excessiveness. The Court must refuse this application. Parties shall meet their own costs.

___________________________________________________
Motuwe Lawyers: Lawyer for Applicant/Appellant
Public Prosecutor: Lawyer for the Respondent