Enuma v The State [1997] PGSC 18; SC538 (30 December 1997)

Unreported Supreme Court Decisions

SC538

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA N0. 107 OF 1997
MAJOR WALTER ENUMA & OTHERS V THE STATE

Waigani

Kapi DCJ
29 December 1997
30 December 1997

CRIMINAL LAW - Practice and procedure - Bail Application - After conviction - Exceptional circumstances must be shown - a good prospect of success of appeal - a good ground for exercise of discretion - Bail Act (Cap. 340) (as amended), s. 11

Counsel

P. Harricknen with P. Parkop and M. Murray for the applicants

C. Manek for the State

30 December 1997

KAPI DCJ: Captain Bola Renagi, Captain Beldon Namah, Lieutenant Michael David, Lieutenant Linus Osoba and Major Walter Enuma were all charged with the offence of mutiny in accordance with s 55 (1) of the Defence Force Act (Cap. 74 )(hereinafter referred to as the Act). They were tried in the National Court constituted by the Defence Force Judge in accordance with the provisions of the Act. They were all convicted of mutiny with the exception of Major Walter Enuma. He was found not guilty of the offence of mutiny under s 55 (1) but instead found guilty of failing to suppress or prevent the mutiny in accordance with s 55 (2) of the Act. They were sentenced as follows:

1. Captain Bola Renagi was sentenced to ten years imprisonment with hard labour.

2. Capt. Beldon Namah, Lt. Michael David and Lt. Linus Osoba were sentenced to eight years in hard labour each.

3. Major Walter Enuma was sentenced to five years in hard labour.

The trial judge made further orders directing that each of the offenders be transferred to various prisons throughout the country. It is not necessary to set out the details of this order as counsel for the State has consented to the stay of execution of these transfer orders pending the determination of the appeal.

They have all appealed to the Supreme Court against their convictions as well as against the severity of sentences. Pending the determination of the appeals, the appellants have applied for bail in accordance with. s 11 (c) of the Bail Act (Cap 340)(as amended). This matter has come before me as a single judge of the Supreme Court pursuant to s 5 (1) (e) of the Supreme Court Act.

The principles which govern bail pending appeal are well settled in this jurisdiction. The power to grant bail is discretionary. This discretion has been developed by case law and it is now established that application for bail after conviction is viewed with very great care indeed. The situation is different one from before conviction when the presumption of innocence still prevails. The strong presumption in favour of bail pursuant to s 42 (6) of the Constitution is no longer applicable. The onus is on the applicant to show that there are matters which constitute exceptional circumstances before bail is allowed pending appeal. The authorities establishing these principles are conveniently set out by the Supreme Court in The State v Yabara (No. 1) [1984] PNGLR 133. The Supreme Court has stated that it is not appropriate to compile a list of circumstances which would be regarded as exceptional. This is to be determined from the whole of the circumstances of the particular case.

In this case, counsel for the appellants have advanced two matters which would constitute exceptional circumstances. First, that the appeals by the appellants show a good prospect of success and secondly, that the preparation of appeal by the appellants in terms of raising money to pay private counsel to prosecute the appeal would be assisted by the release of appellants on bail.

I will deal with the second matter first. Counsel for the appellants has submitted that they hired a private lawyer to defend them during the trial and they have not fully paid their legal fees which are estimated to be around K100,00.00. On appeal they have retained the same lawyer as well as two other private lawyers to prosecute the appeal in the Supreme Court. Counsel has submitted that the release of the appellants on bail will assist the appellants in raising sufficient funds to pay for the lawyers in prosecuting the appeal. The appellants rely on affidavit sworn by Mr Powes Parkop, the lawyer who represented them at the trial. This affidavit fails to set out the manner in which the appellants intend to raise funds nor does it set out the extent to which their custody in prison may affect their attempts to raise money. During the course of submissions, counsel for the respondent confirmed that the appellants are still on the Defence Force payroll and are still receiving their salaries. I am not satisfied that this matter constitutes an exceptional circumstance.

I now consider the issue of whether there is a good prospect of success of the appeal. I will deal with this issue in two categories. The first relate to Capt. Bola Renagi, Capt Beldon Namah, Lt. Michael David and Lt. Linus Osoba. They were convicted of the offence of mutiny under s 55 (1) of the Act. They have appealed against their convictions on a number of grounds. For the purposes of bail, they rely mainly on the grounds of appeal relating to the failure by the trial judge to disqualify himself from further presiding in the trial. It is sufficient to simply set out the first ground of appeal in this regard:

“THE LEARNED JUDGE ERRED IN:-

Not disqualifying himself from presiding over the trial even though evidence had arisen and presented in court whereby a reasonable and fair minded person sitting court and knowing all the relevant facts would have a reasonable suspicion that a fir trial for the appellants was not possible or that there was a reasonable impression or appearance of bias as a result of those evidence.”

For the purposes of the bail application before me, I need to set out the background to the application made by the appellants for the trial judge to disqualify himself from presiding any further in the case. My purpose here is not to fully consider this ground of appeal. That is the function of the Supreme Court when it considers the appeal proper. I will consider it only in so far as it is relevant to whether or not it may constitute an exceptional circumstance.

The appellants made application on two separate occasions asking the trial judge to disqualify himself from presiding in the case. The first application was prompted by a speech made by the trial judge in his capacity as Defence Force Judge on the opening of the National Court constituted by the Defence Force Judge under the provisions of the Act and the swearing in of Brigadier General Leo Nuia as the Commander of the Papua New Guinea Defence Force on 9^th July 1997. The allegation was that the trial judge made comments regarding the background and other matters relating to the charges against the appellants to the extent that it created an impression that the appellants may not get a fair trial. The trial judge heard the application and refused to disqualify himself in a judgement handed down on 24^th September 1997.

The second application to disqualify was made as a result of an allegations that a witness Lt. Col. Carl Malpo who gave evidence against the appellants made two separate visits to the residence of the trial judge on 15^th October 1997 and 9^th November 1997. This application was made after all the evidence was completed but before judgement was delivered. The trial judge heard the application and dismissed the application in a written decision dated 9^th December 1997.

For the purposes of the bail application, I need only examine this ground of appeal in respect of visit by Lt. Col. Carl Malpo to the residence of the trial judge on 9^th November 1997. The relevant facts surrounding this visit are not disputed. Lt. Col. Carl Malpo gave and completed his evidence on 2^nd October 1997. That he visited the trial judge’s residence on 9^th November 1997 and briefed the trial judge on security arrangements for the judge as he was planning on travelling to Lae for National Court circuit. In considering the issue, the trial judge had regard to the proper principles in Diro v Justice Amet & Others [1995] PNGLR 411 and Boateng v The State [1990] PNGLR 342. After the trial judge set out the proper principles he then referred to the three witnesses who gave evidence on behalf of the appellants and stated:

“If these three soldiers had sat in Court all throughout the proceedings, and had listened to the evidence and then become aware of the evidence of Lt. Col. Malpo and Major Bartley in this application, they would of course know all the facts. Given that scenario, it is my belief, that they would not have formed an impression that the accused’s would get a fair trial.”

However that is not the basis upon which the trial judge dealt with the application. He dismissed the application on the basis that the it was brought prematurely before conviction. He stated:

“I consider that the appropriate time for such an application to be made is after the completion of the trial, if the accused’s are convicted. The appropriate proceedings then will be by way of an appeal to the Supreme Court.”

These appellants have appealed on the ground that the trial judge should have disqualified himself from presiding in the case. As I have indicated before, the trial judge set out the proper principles in his judgement. In Boateng v The State (supra) the Supreme Court said:

“The test to be applied in determining whether an accused person had been denied a fair trial was whether a reasonable and a fair minded person sitting in Court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the accused was not possible.”

In Diro v Justice Amet & Others (supra) the National Court held:

“(1) ...The Court looks at the impression which would be given to other people.

(2) If a fair minded person sitting in the Court with knowledge of the facts would have a ‘reasonable suspicion’ that a fair trial would not be possible, then the Court ought to accede to the request.”

In applying these principles to the visit by Lt. Col. Malpo on the 9^th November 1997, counsel for the State conceded that there would be a reasonable suspicion that a fair trial for the appellants would not be possible in the circumstances. It is not relevant to consider whether the decision was in fact affected. The Supreme Court in referring to this consideration in Boateng v The State (supra) stated:

“Justice requires that there be complete absence of any inference or impression that a judge or his family have, by personal association with parties or witnesses, influenced the outcome of a case. However impeccable a judgement or a decision of a judge might be the appearance created by such association in the mind of a reasonable man that justice might not have been done to a party cannot be remedied by denials, however true, that such association had no effect on the outcome of the case.”

I have concluded that there is good prospect of this ground of appeal succeeding in the appeal. In the circumstances I am satisfied that these appellants have shown an exceptional circumstance for their release on bail.

I now consider the application by Major Walter Enuma. This appellant was found not guilty of the offence of mutiny under s 55 (1) of the Act. However, he was convicted of failing to suppress or prevent the mutiny pursuant to s 55 (2) of the Act. This appellant has appealed against his conviction on the basis that he was not charged with the offence prescribed under s 55 (2) of the Act. Counsel for the appellant has submitted that there is no provision in law which empowered the trial judge to find the appellant guilty of this alternative offence. If the prosecution intended to deal with the appellant on this offence, it ought to have charge him with this offence in the indictment. The trial judge simply found the appellant guilty of an offence of which he was not given the opportunity to plea nor was he given the opportunity to defend himself at the trial. Counsel for the State simply submitted that he had no answer to this ground of appeal. I find that there is a good prospect of this ground of appeal succeeding in the appeal. I am satisfied that this appellant has shown an exceptional circumstance for release on bail.

I make the following orders:

1. That all appellants be granted bail on payment of K500.00 cash each at the National Court Registry.

2. That each appellant to reside in their respective barracks where their homes are presently located.

3. That each appellant shall not leave his barracks whether on official duty or otherwise without the permission of the Commanding Officer or his Second-In-Charge.

4. That each appellant shall not communicate with the other appellants pending the determination of the appeal, except on the days or dates they appear in Court.

5. That each appellant shall remain in his residence at all times between 6 p.m. - 6 a.m. daily until the appeal is determined.

6. That each appellant shall report to his Commanding Officer or Second-In-Charge each day anytime between 9:30 a.m. and 3:30 p.m. until the appeal is determined.

7. That each appellant shall not make any press statement or release to any media organisation in respect of the appeal.

8. That each appellant shall not communicate with any member of the Defence Force who participated in the alleged mutiny except such communication is connected with official duty.

Lawyer for the Applicants: Powes Parkop

Lawyer for the State: Public Prosecutor