Matiul v State [2016] PGNC 128; N6324 (20 June 2016)

N6324

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (APP) 1540 of 2015

BETWEEN

EREMAS MATIUL

Applicant

AND

THE STATE
Respondent

Kokopo: Anis, AJ

2016: 30 May & 20 June

CRIMINAL LAW – Bail application made under section 10 of the Bail Act Chapter No. 340 - prisoner convicted of grievous bodily harm under section 319 of the Criminal Code Act Chapter No. 262 - sentence pending - court's power discretionary - no valid reason given in support of application - overcrowding in prison cannot be a valid reason - application refused

PRACTICE AND PROCEDURE – court's discretion under section 10 and 11 of the Bail Act discussed - the consideration 'matters of exceptional circumstances' applicable under section 11 of the Bail Act is also applicable under section 10 of the Bail Act

Facts:

On 30 May 2016, the Court convicted the prisoner for the offence of grievous bodily harm with a fellow co-prisoner. After the Court read out its judgment on verdict, the prisoner through his counsel orally applied for bail under section 10 of the Bail Act Chapter No. 340. The Court refused bail and reserved its full reasons.

Held:

1. The Court's power to consider bail applications made under section 10 of the Bail Act Chapter No. 340 is discretionary.
   
2. A prisoner applying for bail under section 10 of the Bail Act is required to show "matter(s) of exceptional circumstance(s)" similarly like a prisoner in an application for bail pending appeal under section 11 of the Bail Act.
   

(Case followed: State v. Robert Kani Yabara (No. 1) [1984] PNGLR 133)

3. 'Overcrowding in prison' did not constitute a matter of exceptional circumstance that would have warranted the Court on 30 May 2016 to exercise its discretion in favour of the prisoner.
   
4. It was on that basis that the Court on 30 May 2016 refused bail to the prisoner.
   

Cases cited:

Arthur Gilbert Smedley v. The State [1978] PNGLR 452
John Jaminan v The State [1983] PNGLR 122
John Jaminan v. The State [1983] PNGLR 122
Rolf Schubert v. The State [1978] PNGLR 394
State v Boma Bango (2010) N4168
State v. Robert Kani Yabara (No. 1) [1984] PNGLR 133

Counsel:

Mr P. Kaluwin, for Applicant
Ms T. Aihi, for the Respondent

REASONS FOR REFUSING BAIL

20th June, 2016

1. ANIS AJ: On 30 May 2016, I handed down my ruling on verdict convicting the prisoner and another prisoner namely Joe Ngotngot for the offence of grievous bodily harm. The prisoner applied for bail immediately after my decision. The prosecution did not make any submission in reply but said it was up to the Court to consider and determine the application. After hearing the defence submission, I dismissed the application and indicated that I would publish my reasons at a later stage.

2. I do so now.

SOURCE

3. The prisoner applied for bail under section 10 of the Bail Act Chapter No 340 (Bail Act). Section 10 reads:

Where a court convicts a person but adjourns the proceedings before passing sentence, it may, in its discretion, grant the person bail.

ISSUE

4. The central issue was whether the prisoner provided a valid reason for the Court to exercise its discretion in his favour. In a brief ruling on 30 May 2016, I answered 'no' and I refused the prisoner's bail application.

LAW

5. Section 10 of the Bail Act is expressed in that it states that the Court's power to grant bail after conviction but before sentencing is discretionary.

6. However, the question I had at the hearing of the bail application was whether the consideration "matters of exceptional circumstances" also applied to section 10 of the Bail Act. I note that my view was in the affirmative and I pointed to counsel that the prisoner was required to show an exceptional circumstance or circumstances before the Court could exercise its discretion. The defence view was different. It said the consideration (i.e., exceptional circumstances) only applied to bail applications made under section 11 of the Bail Act. It submitted that concerning the present case, the Court's power was discretionary. I note that this Court drew counsel's attention to the case of John Jaminan v The State [1983] PNGLR 122. And I note that counsel maintained his submission on point in regard to the said case authority.

7. What does the case law say on point?

8. I think it is appropriate to start-off by noting that the case law for bail applications under section 11 of the Bail Act, unlike section 10, is settled. In short, an applicant is required to show an exceptional circumstance(s) before the Court may exercise its powers and grant bail pending the applicant's appeal whether it be against conviction, sentence or both conviction and sentence. I note that the case of John Jaminan v The State (supra) was an application for bail made under section 11 of the bail application. And I note that the defence counsel was correct when he submitted that the case was relevant to applications made under section 11 of the Bail Act.

9. This brings me back to my earlier question, which is, whether the consideration 'matter(s) which constitute exceptional circumstance(s)' applicable under section 11 of the Bail Act also applies to section 10 of the Bail Act, for the Court to be satisfied of before granting a request for bail.

10. In my opinion, the answer to this question is "Yes". The case law, which I think is on point, is the Supreme Court case of State v. Robert Kani Yabara (No. 1) [1984] PNGLR 133. The applicant applied for bail under section 11 of the Bail Act. The National Court granted bail to the prisoner pending his appeal. The prosecution appealed against the National Court's decision. The Supreme Court held at page 134 and I read:

The practice of the court here in Papua New Guinea has been that applications for bail after conviction are viewed with very great care indeed. The situation after conviction is a different one than before conviction when the presumption of innocence still prevails. After conviction, an applicant must show that there are matters which constitute exceptional circumstances before bail is allowed pending an appeal. This is what was stated by Raine Dep. C.J. in Schubert v. The State [1978] P.N.G.L.R. at 394 and this was followed in Smedley v. The State [1978] P.N.G.L.R. at 452 and John Jaminan v. The State [1983] P.N.G.L.R. 122.
(Bolding and underlining are mine)

11. I note that despite the Supreme Court ending its decision on point therein with the words "pending an appeal" as I have marked in bold letters above, I think its intention was clear. If one were to read the full length of the decision as I have underlined above, clearly the intention of the Supreme Court in my opinion was to also include the consideration "matter(s) which constitute exceptional circumstance(s)" to bail applications made under section 10 of the Bail Act. Sections 10 and 11 both entertain bail applications after convictions. The main difference between the two provisions is that section 10 deals with bail applications after convictions but before sentences are handed down whilst section 11 deals with bail applications after convictions or sentences that are subject of appeals. I would therefore interpret the said Supreme Court's decision as quoted above, to include or apply to bail applications made under section 10 of the Bail Act. If I am wrong in that regard, I will go one-step further. That is, I will rule now that the consideration "matter(s) which constitute exceptional circumstance(s)" shall also apply to bail applications made under section 10 of the Bail Act. I would adopt and apply the same reasoning applied by the Supreme Court in the case of State v. Robert Kani Yabara (supra) and the cases referred to therein namely Rolf Schubert v. The State [1978] PNGLR 394, Arthur Gilbert Smedley v. The State [1978] PNGLR 452 and John Jaminan v. The State [1983] PNGLR 122.

DECISION

12. I note that the prisoner lost his right to bail after this Court convicted him on 30 May 2016 for the offence of grievous bodily harm.

13. At the hearing of the bail application, I note that I asked counsel to state a valid reason or show cause why I should exercise my discretion and grant bail to the prisoner. The only 'reason' the prisoner gave was that the prison was overcrowded and he submitted through his counsel that, on that basis, the Court should release him out on bail pending sentence. I note that I informed counsel that that cannot be a valid reason for the Court to exercise its discretion to grant bail to the prisoner. The defence did not file any affidavit to support the prisoner's application. I note that I had asked counsel at that point whether the prisoner would prefer to file affidavit evidence and whether the application should not proceed. I note that counsel decided to proceed with the application. I was then left with no evidence except submission made over the bar table. I note that I refused bail on that basis, which was that I was not satisfied the prisoner gave a valid reason for me to exercise my discretion in his favour. I must add that even if evidence was filed that would have showed overcrowding in prison I would not have regarded it as a valid reason for granting bail.

14. I think this is now the appropriate time for me to address what I would term as misconceived submissions I have observed from parties in some of the bail applications that I have come across including this case. What is the misconception? It is to do with the Court's role and the role of the Correctional Service and the Royal Papua New Guinea Constabulary. In my opinion, the Court's role in criminal proceedings is to make findings of and deliver justice, which include determining whether to acquit, imprison or fine accused persons or prisoners. To be precise and on point, if the Court finds that bail should be refused in a matter, it should not be influenced by and change its decision based on submissions that the prison or cellblocks are overcrowded with inmates or prisoners. In my opinion, overcrowding in prison is not a relevant reason that can be used in a bail application whether it be under section 10 or 11 of the Bail Act. Further, I note that it is not the Court's role to, before deciding whether to grant or refuse bail, check and see first if there is space available at the prison or cellblocks. If that were to be the case, in my opinion, it would compromise impartiality towards delivery of competent decisions in bail applications. The simple fact of the matter is there are already established institutions under the Constitution and that responsibility (i.e., of addressing overcrowding in prison or cellblocks) is theirs to address. When I say 'theirs' I am of course referring to the Correctional Service and the Royal Papua New Guinea Constabulary. I also note that there are separate Court processes such as the Human Rights Courts that are available to address issues such as over-crowding in prisons, or if for example the prison or cell facilities are unsuitable for human use or occupation. But of course due processes must be followed to address or achieve these.

15. Finally, I note that the prisoner did not provide any matters of exceptional circumstances herein where the Court could have considered favourably for him. I note that matters of exceptional circumstances can be based on various factors. One that comes to mind is for example medical grounds. With this as an example, I refer to the case of State v Boma Bango (2010) N4168. I note that Justice Kawi therein granted bail to the prisoner who had applied for it under section 10 of the Bail Act. His Honour granted bail because he found that the prisoner was suffering from chronic asthma.

SUMMARY

16. These are my reasoning in relation to the decision on bail I made on 30 May 2016.

ORDERS OF THE COURT

Application for bail under section 10 of the Bail Act was declined.

______________________________________________________
Office of the Public Solicitor : Lawyer for the Applicant
Office of the Public Prosecutor : Lawyer for the Respondent