Dau v The Independent State of Papua New Guinea [2023] PGNC 84; N10190 (8 March 2023)

N10190

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 55 OF 2023

BETWEEN:

RUNNY DAU

- Applicant-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

-Respondent-

Waigani: Tamade AJ

2023: 3^rd and 8^th March

CRIMINAL LAW – application for bail after conviction – convicted of two offences – official corruption and conspiracy to defraud – Criminal Code – Section 87 (1)(a)(i)(ii) and Section 407 (1)(b) – Bail Act – Section 11 – appeal against conviction in Supreme Court on foot – prison not conducive to look after infant – applicant show no exceptional circumstances – bail refused

Cases Cited:

Papua New Guinean Cases

Kamana v State [2021] PGNC 9; N8708
Mataio v The State [2007] PGSC 22; SC865
Schubert v The State [1978] PNGLR 394
Ere v The State [2018] PGSC 109; SC1875
Nombri v Kadai [2014] PGSC 75; SC1569

Overseas Cases

Chamberlain v R (No 1) [1983] HCA 13; (1983) 153 CLR 514
Lynne Chamberlain [1982] FCA 235; [1982] 6 A Crim R. 385

Legislation:

Bail Act
Constitution of the Independent State of Papua New Guinea

Counsel:

Mr Martin Kombri, for the Applicant
Mr Andrew Kaipu, for the State

8^th March, 2023

1. TAMADE, AJ: The Applicant Runny Dau is a 34-year-old female from Anda Village in the Anglimp South Waghi District of Jiwaka Province. The Applicant was a Cargo Management Officer with the PNG Customs. She was charged and convicted of the offence of official corruption contrary to section 87(1)(a)(i)(ii) of the Criminal Code and also with the offence of conspiracy to defraud contrary to section 407(1)(b) of the Criminal Code. The Applicant has been in custody since 25 March 2022 when she was sentenced to serve four years imprisonment for each offence to be served concurrently. The Applicant has lodged an appeal to the Supreme Court on 24 April 2022 on her conviction which is yet to be heard.
   
2. The Applicant applies for bail after conviction pursuant to section 11 of the Bail Act. Section 11 of the Bail Act is as follows:
   

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.

3. I adopt the analysis of Acting Justice Tusais (as he was then) in the case of Kamana v State^[1] below in regard to cases on section 11 of the Bail Act as follows:
   

“13. There have been many decided cases on bail applications made under section 11 of the Bail Act. I refer to cases including John Jaminan v State [1982] PNGLR 122, Arthur Smedley v State [1978] PNGLR 452, Rolf Schubert v State [1979] PNGLR 66, Walter Enuma v State (1997) SC538, Dr Theo Yasause v State (2011) SC1112 Salika DCJ, Cannings J Sawong J, Theo Yasause v State (2014) SC1381 Makail J. All those cases reaffirm the principle in law that once a person has been convicted, he is no longer entitled to bail as of right because he is a prisoner of the state. To be granted bail the applicant is required to demonstrate that there are exceptional circumstances justifying his release on bail pending hearing of appeal. Otherwise, courts have been very reluctant to release convicted prisoners on bail.”

4. Mr Kombri for the Applicant has submitted the Supreme Court case of Mataio v The State^[2] where the Court said that in relation to what is exceptional circumstances, each case should be considered on its’ own set of facts. The Court said ths:

27. In relation to what may constitute an exceptional circumstance, we cite with approval, because of its persuasive value what the Court said at 399.

"It is unnecessary, and would be unwise, to attempt to compile a list of circumstances which would be regarded as exceptional. The totality of the circumstances must be looked at. Some relevant factors are indicated by the cases. Reference has been made in the cases to the prospect of success of the appeal. I do not think, however, that the Court which considers application for bail can be expected to assess the prospects of success of the appeal, unless those prospects are obvious. There are cases, I suppose, in which a perusal of the grounds of appeal and a merely superficial appraisal of the case indicate that the appeal has little prospect of success (Ryan [1930] SASR 12... An important factor is the duration of the term of imprisonment which has been imposed especially if it is so short that the term may expire before the appeal is determined (Cooper [1961] ALR 584). No one factor can be regarded as decisive. The Court hearing the application must consider all the circumstances in order to determine whether they can be regarded in the aggregate as exceptional." (underlining ours)

28. Another Australian case we wish to refer to is Alice Lynne Chamberlain [1982] FCA 235; [1982] 6 A Crim R. 385; a case in which an application for bail pending appeal from conviction for murder and sentence of life imprisonment was made in the Federal Court of Australia. The Court held inter alia that:

"As a general principle bail is not granted pending the hearing of an appeal against conviction and sentence imprisonment unless exceptional circumstances exist. What constitutes exceptional circumstances depends upon the facts of each case".

5. As to whether the prospect of the Applicant’s appeal on her conviction to the Supreme Court is a matter for consideration in the application for bail after conviction and sentence, the Supreme Court in the Mataio case also said this:

“36. With respect we are of the opinion that this is the correct approach. What is being motivated by this kind of submission is that the Court which hears the bail application is also asked to consider the prospect of success of the appeal. This is not the function of the Court dealing with the bail application. We whole-heartedly agree with Lockhard, J that it is not desirable for a Court hearing a bail application to look into the success of an appeal as in doing so, the Court is looking at the merits of the appeal at this stage. We think that this should never be the practice and procedure in this jurisdiction.

37. It will be noted that in that case, the prospect of success of appeal was not an exceptional circumstance that enable the Federal Court to grant bail to the appellant. The basis for grant of bail was that the appellant had given birth to a child when she was incarcerated and the child had been removed from her by certain authorities. There was need for her to care for her baby at that time.”

6. The Supreme Court in Mataio considered the Australian case of Alice Lynne Chamberlain [1982] FCA 235; [1982] 6 A Crim R. 385. This was the widely publicised case in the media in Australia of little Azaria who was found to have been taken by a dingo. The evidence as to this would be discovered much later after Alice Lynne Chamberlain was convicted for murdering her nine-week-old daughter and sentenced to life imprisonment in the Northern Territory of Australia. Whilst incarcerated, she gave birth to her second child Khalia who was taken away from her by the Authority. She applied for bail pending her appeal to the Federal Court and was granted bail on exceptional circumstances that she had to take care of her baby. When her appeal was dismissed by the Federal Court, she was taken into custody to serve her sentence. Chamberlain applied for bail soon thereafter to the High Court of Australia in Chamberlain v R (No 1)^[3] to breastfeed her baby pending the hearing of the special application to the High Court. The High Court of Australia considered the issue of an exceptional circumstance after conviction, after the Federal Court had dismissed her appeal on conviction and pending special leave to the High Court. The High Court considered the fundamental issue of the roles of jurors as central to the criminal justice system in Australia. The High Court said this:

“To grant bail in such a case is to whittle away the finality of the jury's finding and to treat the verdict merely as a step in the process of appeal. The central feature in the administration of criminal justice is the jury, and it is a mistake to regard the effect of its verdict as contingent upon confirmation by an appellate court. (at p520)”
7. Chamberlain’s application for bail after conviction, after a refusal by the Federal Court of her appeal and pending a special leave to the High Court was refused. Chamberlain and her husband would later be acquitted of the crimes that they were convicted for on their daughter Azaria upon new evidence that a dingo was responsible for the death of Azaria.

8. The Applicant’s application is premised on this ground, that she was pregnant and gave birth to a child on 24 November 2022 whilst incarcerated. In her Affidavit in support of the application, she states that she was pregnant when she was sentenced to prison. She gave birth at the Port Moresby General Hospital whilst incarcerated and she is applying for bail pending her appeal as she states that her baby’s health and safety is the reason why she is applying for bail that her baby needs to be raised outside of prison. She also said that she could have applied for bail when she was still pregnant and in prison and or when she had complications during the later stages of her pregnancy but she did not.
   
9. Mr Kaipu of the State has submitted that the Applicant in this case is a Papua New Guinean and therefore if she has a husband or relatives, they can best take care of the child outside of prison. In the communal culture of PNG, relatives usually step in to help raise a child when their family member is not capable to do so for various reasons and in this case, when the mother of the child is incarcerated. This can be contrasted to the Australian case of Alice Lynne Chamberlain in the Northern Territory of Australia where there is no such support system for a child being born where the mother has to raise the child and breastfeed her. The western culture is a vast contrast to PNG. Where the child is still in the womb and where there is a need for special medical attention which is not available through the Port Moresby General Hospital where the CIS have that service for prisoners as a State hospital, an exceptional circumstance may arise. Also, where the child has just been born and the attachment of the child and the mother is such that the child cannot be separated from the mother where there is a medical condition with the newborn child, it will be unreasonable to remove the child from the mother at that early stage of attachment and an exceptional circumstance may arise. In this case, the child was born on 24 November 2022. The child is now 3 months old, this is where the infant becomes more sturdier, able to grasp things etc. The child is not entirely dependent upon breast milk, gradual introduction of solid food can begin and babies can also be bottle fed. The care and welfare of the baby can be severed from the mother and taken care of by other people. If the mother is in a situation where she needs medical attention after delivery complications, the child should be taken away from her out of prison as she is not capable of taking care of her child. This is not the case. Where the child has grown in 3 months as a healthy baby with no medical conditions, the child’s welfare is best served outside of prison. The attachment or bond between the mother of a baby and baby alone should not be a consideration to give rise to an exceptional circumstance unless there is a medical condition in the baby that the medical service available to the prison cannot address which threatens the life of the new born baby. As the child is now thriving and healthy at 3 months old, the interest or welfare of the child can be best taken care of away from the prison with the Applicant’s husband or with her relatives. The adage that “it takes a village to raise a child” is true in PNG.
   
10. The statutory power under section 11 of the Bail Act therefore raises “exceptional circumstance” as a narrow and confined area where applications for bail should be carefully and strictly scrutinised against the finding of a conviction by the National Court which is fundamental to the process of criminal justice in PNG. As in the Chamberlain bail case, to grant bail on a wide spectrum is to whittle away the power of the National Court which arrived at the verdict which can be seen as suspending the verdict.
    
11. An “exceptional circumstance” was found in the case of Schubert v The State^[4] where the Applicant in that case was applying for bail after being convicted on the offence of indecently dealing with a girl of nine years. The Applicant was sentenced to a term of two years. On application for bail pending appeal, the Applicant relied on the ground that he had to attend to his financial and taxation issues which involved a considerable amount of money as he owned a firm of accountants. The Applicant’s financial dilemma could only be attended to by the Applicant and that given his heart medical condition, the stress of worrying about his financial situation and his conviction could put a strain on his heart. The Court therefore granted him bail for only 14 days to sort out his financial affairs and for him to return to prison where his bail was set to be revoked.
    
12. In Ere v The State^[5], the Supreme Court said this in relation to where an Applicant seeks bail after conviction pending appeal on medical grounds:
    

“The medical condition of a prisoner may constitute an exceptional circumstance justifying the grant of bail but only if the condition is life-threatening and continued detention would seriously endanger the health and life of the prisoner; Ati Wobiro & Ors v The State, SCAPP 18.19 & 20 of 2016Unreported Judgement dated 24^th November, 2016.”

13. In Nombri v Kadai^[6], the Court also said that:
    

“Where lack of medical services at the jail is relied upon, the applicant must provide evidence of lack of medical facilities at the place of detention provided by the jail authorities in conjunction with health services offered by health authorities outside the jail.”

14. I find that the Applicant in this case has not shown an ‘exceptional circumstance” to warrant bail pending appeal whilst serving out her sentence. The consequence of giving birth to a child whilst being incarcerated and any medical issues that may not be adequately addressed by the medical facility provided for at the place of detention may raise an exceptional circumstance however just the reason to be with the baby out of prison for the welfare of the baby is not an exceptional circumstance in my opinion as it undermines the power of the National Court entering a conviction. The prospect of a successful appeal is also not a ground for bail under exceptional circumstance as to delve into the appeal is to peek into the authority of the Supreme Court. The application for bail pending appeal is therefore refused.
    
15. The Court therefore makes the following orders:
    
    1. The Application for bail by Runny Dau is refused.

________________________________________________________________
Kombri & Associate Lawyers: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent

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[1] [2021] PGNC 9; N8708 (19 January 2021)
[2] [2007] PGSC 22; SC865 (8 June 2007)

^[3] [1983] HCA 13; (1983) 153 CLR 514 (2 May 1983)

[4] [1978] PGNC 44; [1978] PNGLR 394 (13 October 1978)
[5] [2018] PGSC 109; SC1875 (1 March 2018)
[6] [2014] PGSC 75; SC1569 (15October 2014)