Panda v The State [2005] PGSC 31; SC787 (2 May 2005)

SC787

PAPUA NEW GUINEA

[IN THE SUPREME COURT AT WAIGANI]

SCRA 24 OF 2003

BETWEEN:

BARRY PALE PANDA
Appellant

AND:

THE STATE
Respondent

Coram: Kapi C.J., Injia D.C.J., Los J.
2nd May 2005

BAIL APPLICATION – Application for bail after lodging Appeal under s 11 of Bail Act – Bail revoked by the Supreme Court – Fresh bail application may be made under s 12 of the Bail Act – A single judge may consider the fresh application.

Counsel:
A. Kimbu for the Applicant
A. Kupmain for the Respondent

2 May 2005

BY THE COURT: Barry Pale Panda (Appellant) was directed to file an application under s 22 (3) of the Bail Act for consideration by the Court.

"22. Forfeiture of security.

(1) Where a person granted bail contravenes or fails to comply with his bail obligations, a court may make an order forfeiting the whole or part of the security given by him to secure his bail obligations.

(2) Subject to Subsection (3), where an order is made under Subsection (1), the order—

(a) in the case of money undertaken to be paid in the event of a breach or contravention of the bail obligation—shall be deemed to be a judgement of the court that the person pay to the State a sum not exceeding the sum undertaken to be paid; and

(b) in the case of a deposit—may authorize payment of the whole or part of the deposit into the Consolidated Revenue Fund.

(3) A person who is affected by an order under Subsection (1) may, within 14 days after the making of the order, apply to the court making the order for variation or revocation of the order.

(4) The court after hearing an application under Subsection (3) may make any order it considers just in the circumstances."

The background to this application may be summarized as follows. The Appellant was convicted of the offence of rape and sentenced to 12 years in hard labour by the National Court (Mogish J.) on 4th March 2003.

The Appellant appealed in person against conviction and sentence on 18th March 2003.

The appeal was initially listed in June 2004. However, on 30th June 2004, the Supreme Court adjourned the matter to the next sittings of the Supreme Court and directed the Appellant to file a further notice of appeal specifying the grounds of appeal challenging the conviction and sentence.

The Appellant filed further Notice of Appeal on 21st July 2004 in compliance with the order of the Court.

Upon application under s 11 of the Bail Act, the National Court (Los J.) granted bail to the Appellant with reporting conditions on 25th August 2004 after lodging the Appeal.

The record shows that no further steps were taken to prosecute the appeal and the Deputy Registrar listed the matter for summary determination before the Supreme Court on 3rd March 2005. The Appellant failed to appear at the hearing. The Court (Hinchliffe J., Sakora J., Lenalia J.) made the following orders:

"1. The Appeal adjourned to the nest sittings of the Supreme Court.

2. If the Appellant does not prosecute the appeal at the next sittings of the Supreme Court, then the appeal will stand dismissed for want of prosecution.
   
3. The Supreme Court Bail granted to the appellant be revoked.
   
4. The Bench Warrant be issued for the immediate arrest of the appellant to be kept in custody at the Bomana Correctional Services facility from where he is to remain until his appeal is determined by the Supreme Court at its next sittings.
   
5. The issue of forfeiture of the cash bail be determined at the next sittings of the Supreme Court"
   

The appeal was listed for hearing on 26th April 2005. On the date of hearing, the Appellant appeared with his lawyer to argue the appeal on its merits before the Court (Kapi C. J., Batari J., Cannings J.). Counsel for the Respondent was not ready to proceed as counsel for the Respondent (Mr Kua) handling this matter had recently resigned from the Public Prosecutor’s Office and Mr Kupmain was not in a position to argue the matter. The Court held the view that as the Appellant was ready to argue the appeal, the appeal could not be dismissed and upon application of the Respondent, the date of hearing was vacated and the appeal was listed for hearing on 27th June 2005 at 9.30 am.

The Court further directed the Appellant to file an application under s 22 (3) of the Bail Act for determination before the Supreme Court. This is the application which has come before us for determination.

Upon further examination of the orders made by the Supreme Court, the question of forfeiture of bail had not yet been determined and therefore there was no need for the application under s 22 (3) of the Bail Act.

It became clear to us that the Court on 3rd March 2004 had determined the issue of revocation of bail under s 21 of the Bail Act:

"21. Revocation of bail.

(1) Where it is alleged that there are reasonable grounds for revoking bail granted to a person and the person appears or is brought before a court, the court shall consider whether the bail should be revoked.

(2) If, after hearing all the evidence including that of the person granted bail and his witnesses (if any), the court is satisfied that the circumstances so require, it may—

(a) revoke the bail, discharge the person from his bail obligations and commit the person to a place of confinement; or

(b) subject to Subsection (3), vary the conditions of the bail.

(3) Where there is a guarantor for the person granted bail, a court shall not impose conditions of bail more onerous on the guarantor than the existing conditions of bail without first obtaining the consent of the guarantor."

We held the view that the initial bail granted by Los J. was considered under s 11 of the Bail Act and this was revoked by the Supreme Court (Hinchliffe J., Sakora J., Lenalia J.) on the 3rd March 2005 in accordance with s 21 (2) of the Bail Act.

Consequently, we ruled that it is up to the Appellant to make a fresh application for bail. Such an application may be made under s 12 of the Bail Act:

"12. Bail during hearing of appeal.

Where a court hearing an appeal adjourns proceedings, it may, in its discretion, grant bail to the appellant on application by or on behalf of the appellant."

As the Appeal has been adjourned to 27th June 2005, the Appellant may make a fresh application for bail under s 12 of the Bail Act. As this is a fresh application, a single judge of the Supreme Court may deal with it under s 10 of the Supreme Court Act.

Consequently, the Appellant may file a fresh bail application for consideration on Thursday 5th May 2005 before a single judge of the Supreme Court.
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Lawyers for the Appellant : Mirupasi Lawyers
Lawyer for the Respondent : Public Prosecutor