Mataio v State [2007] PGSC 22; SC865 (8 June 2007)

	Home \| Databases \| WorldLII \| Search \| Feedback Supreme Court of Papua New Guinea

APPEAL – Bail - Application for bail – After conviction – Conviction by the National Court – Exceptional circumstances – Relevant principles – Exceptional circumstances must be shown – Good prospect of success on appeal or likelihood of success – Whether that constitutes an exceptional circumstance – Not of itself -

APPEAL – Bail – Right to – Constitution Section 42 (6) – Bail Act Section 11 – Presumption of innocence – No longer available after conviction – Right to bail – After conviction – No longer exists.

BAIL – Right to – Bail application – After conviction – Pending appeal – To be viewed with great care and reticence – Presumption of innocence and right to bail no longer available – Application to be admitted to bail pending appeal refused.

PNG Cases
Rolf Schubert v. The State [1978] PNGLR 394
Arthur Gilbert Smedley v. The State [1978] PNGLR 452
John Jaminen v. The State [1983] PNGLR 122
Robert Kani Yabara (No.1) [1984] PNGLR 133
Yaki v. The State [1990] PNGLR 513
Major Walter Enuma & Ors v. The State (1997), unreported, SC538, 30th December 1997
Bola Renagi & Ors v. The State (2000) unreported, SC649, 1st August, 2000
Robin Warren & 4 Ors v. The State (2003), unreported, SC725, 17 December 2003
Robin Warren & Ors v. The State (2003), unreported, SC725, 17th December, 2003
Aaroon Puli v. The State, (2004), unreported and unnumbered, (MP 2 of 2004), 18th February, 2004

1. BY THE COURT: The applicant is a former Magistrate of the District Court at Boroko, National Capital District, who in his official capacity and in the discharge of his judicial function was alleged to have corruptly received the sum of K150.00 from one Andrew Sondo, a person, who had been charged with a criminal offence, vis a vis, trading without a license contrary to s.98 Liquor Licensing Act, and was appearing before the applicant. The applicant was therefore charged with judicial corruption contrary to s.119 (2) (a) Criminal Code Act and was convicted on 11 May 2002 by Davani, J after a trial. He was subsequently sentenced to 6 years imprisonment with light labour on 6 August 2004.

2. On 24 August 2004, the applicant lodged an appeal against the whole of the decision of the National Court. This therefore is his application pursuant to s. 11 of Bail Act, to be released on bail pending his appeal. On 8 November 2003, Mogish, J, sitting as a single Judge of the Supreme Court had refused bail. The applicant has now applied to the Full Court to be granted bail pending his appeal.

3. There are eighteen grounds of appeal in paragraph 3 of the applicant’s notice of appeal. We set these out hereunder.

a)	The trial Judge erred in that the appellants conviction was premature in that the available state evidence only pointed towards receiving a benefit but did not prove beyond reasonable doubt that there was anything done by the appellant or omitted by the appellant or to be done by the appellant in his judicial capacity from the benefit of K150.00 received;
b)	The trial Judge erred in relying on circumstantial evidence, as there was another reasonable hypothesis other than the guilt of the appellant, which the trial Judge failed to give due consideration to from the evidence of the appellant;
c)	The trial Judge erred in relying too heavily on the evidence of Andrew Sondo or should have given no weight to his evidence whose credibility was tarnished in that he had step up the whole exercise to pervert the course of justice, which was apparent from the fact that he had photocopied the three K50.00 notes being K150.00 that he was going to give to the appellant and that the circumstantial evidence showed he had already notified the police, of his intentions;
d)	The trial Judge erred in relying on the evidence of Andrew Sondo or should have given no weight to his evidence whose own evidence was that he offered bribe to a judicial officer contrary to Section 119 (2) (b) of the Criminal Code as was the case in Yabara v. The State [1984] PNGLR 378;
e)	The fact that he had notified the police was apparent from the fact that it had taken 10 to 15 minutes for the police to return to question the appellant which no reasonable person would expect to happen unless the whole exercise was planned with the police prior to the offering of the bribe to the appellant;
f)	That the trial Judge erred by not giving the opportunity to the appellant to cross-examine the Ulagis Mantu, Rodney Pakalai and Robert Volo, which would have revealed the collaboration of Andrew Sondo with his wantoks David Pia and Simon Tanga and the police to pervert the cause of justice;
g)	The trial Judge erred in relying on the evidence of David Pia and Simon Tanga and should have given no weight to their evidence who were relatives of the complainant and whose evidence strongly suggested that they were strategically placed to witness the whole incident so that they can corroborate the evidence of Andrew Sondo;
h)	Further in that arresting the appellant within minutes after speaking to Andrew Sondo, denied the appellant his intention to report the matter to his superiors;
i)	The appellant intends to all fresh evidence to discredit the character of Andrew Sondo;
j)	Thomas Bona’s evidence failed to prove the connection between the receiving of a benefit and anything done or to be done by the appellant in his judicial capacity, as his evidence only related to District Court procedures and did not explain the reasons for the constant adjournments in relation to Andrew Sondo’s file which was a matter that was before another presiding magistrate;
k)	The trial Judge erred in law in relying on the authority of Yabara v. The State [1984] PNGLR 378, which involved the reverse situation under Section 119 (2) (b) and not Section 119 (1) (a) as is the case here;
l)	The trial Judge erred in law in finding that all the elements of judicial corruption under Section 119 (1) (a) of the Criminal Code were made out that the evidence available before the Court did not make out all the elements of the offence particularly:- There was no intention to corruptly ask, receive or obtain property; That no benefit was received as the money was returned to the police; and There was no connection between what was received and what was done in the appellant’s official capacity as a judicial officer;
m)	The trial Judge erred in relying on the authority of Yabara v. The State [1984] PNGLR 378 to make out the offence, as that case applied to a person who was not a judicial officer offering bribe to a judicial officer was the complainant in that case, which is Section 119 (2) (b) of the Criminal Code;
n)	Further that the trial Judge erred in finding that the elements constituting the offence were as put forward by the State and not the appellant and gave no reason for not accepting the appellants interpretation of the elements constituting Section 119 (1) (a) of the Criminal Code;
o)	In the alternative, if the Supreme Court upholds conviction, the sentence was excessive as the Court failed to consider available mitigating circumstances;
p)	The sentence was excessive in that the trial Judge erred in denying the appellant’s constitutional right to protection of the law under s.37 by dismissing the appellant’s mitigating circumstances as they were not in affidavit form as the Judge should have adjourned the case to allow for the affidavits to be filed instead of proceeding in the absence of the affidavits;
q)	That the trial Judge was wrong in penalizing the appellant on his statement on the allocutus and gave undue weight to the appellant’s right to put the state to trial,
r)	Such further grounds as it may be considered necessary may be added to this notice following further instructions from the appellant and receipt of the Court transcripts of the National Court proceedings.

4. It is not necessary, and indeed it is not the function of the Court at this stage to consider these grounds of appeal. What underlies these grounds of appeal and is confirmed by the applicant’s counsel’s submissions is that the grounds of appeal raise the issue of a good prospect of success in this appeal. We will elaborate on this principle later in the judgment.

5. At this juncture, we look at s.11 of the Bail Act, which deals with bail after lodging an appeal.

11. Where a person lodges an appeal against his conviction or sentence or both –

may, in its discretion, on application by or on behalf of the appellant, grant bail pending the hearing of the appeal.

7. The issue, so far as the applicant is concerned, is whether the Supreme Court should admit him to bail pending his appeal.

8. This issue raises one very important question which has been addressed by single Judges of the Supreme Court in two different ways that it is the view of this Court to settle the variances of opinion and therefore settle the law as to whether an applicant should be granted bail following his conviction and pending determination of his appeal by the Supreme Court.

9. Courts in Papua New Guinea, England and Australia have upheld and maintained the principle that bail is not readily granted to an applicant who has been convicted of a criminal offence; has appealed, and is awaiting the prosecution of his appeal. That has been the law in this jurisdiction until Kapi, DCJ (as he was then) in 1997, sitting as a single Judge of the Supreme Court ruled otherwise in Major Walter Enuma & Ors v. The State (1997), unreported, SC.538, 30 December 1997; and subsequently followed by Jalina, J in Robin Warren & 4 Ors v. The State (2003), unreported, SC.725, 17 December 2003. We will discuss those decisions with other cases later in this judgment.

10. However, we have examined some old English cases on this area of the law on appeal and we find that between 1908 and 1928, there were six cases in which the English Criminal Court of Appeal had decided to grant bail to appellants, however not on the grounds of good prospect of success in their respective appeals. We have observed that in those cases that the Courts had granted bail in a restrictive manner and the approach taken by the English Courts in those cases was not because those appeals had any prospect of success.

11. On the contrary, we also observed that there were other old English cases which the English Criminal Court of Appeal had refused bail because there were no exceptional circumstances and we intend to refer to those cases because we are of the opinion that despite the fact they are old cases, the principles established in those cases are the same as Courts in Australia and in our own jurisdiction have maintained except the two Papua New Guinea cases we alluded to earlier.

12. As we adverted to, the general rule in both England and Australia has been that the Court did not grant bail to a convicted prisoner who has filed an appeal and is awaiting the hearing of his appeal unless exceptional circumstances were shown. This is consistent with some decisions in a number of cases in our jurisdiction.

13. The general rule was laid down in R. Rawlings (1909) 3 Cr. A.R 5 at 6. Although the prisoner was admitted to bail by the full Court, the Lord Chief Justice (Darling, J) said the general rule of the Court was not to allow bail pending appeal. In R. v. Garnham (1910) 4 Cr. A.R 150; the Court of Criminal Appeal held that the Court did not usually grant bail, pending appeal, when the term of imprisonment was long. Bray, J said, "it is not unusual to grant bail when the term of imprisonment is a long one, and in this case, it must be refused."

14. In R. v. Edgar Gordon (1912) 7 Cr. A.R 182; the appellant, an architect and surveyor, was convicted of obtaining credits up to £20 or upwards without disclosing that he was an undischarged bankrupt, and with obtaining goods by false pretences. He was sentenced to one month and eight months imprisonment respectively, to be served concurrently. The appellant then made an application for bail to a single Judge (Channell, J) and the application was referred to the Full Court. The crown, which opposed the application, pointed out that bail was only granted in exceptional cases, for example, when the appeal would take some time to be listed or when a difficult issue of law is raised. It was held: "The Court will not, as a rule, grant bail to a prisoner pending his appeal." In the words of Darling, J at p.183:

"No sufficient reason has been shown to the Court why the unusual course should be taken of granting bail to a convicted prisoner."

R. v. John William Gott (1922) 16 Cr. App.R 86; followed Gordon’s case (supra). The prisoner was convicted of blasphemy and sentenced to 9 months imprisonment with hard labour. An application for bail was lodged to the Court instead of to a single Judge, as it was the last day of term for bail pending appeal. The appellant had previously been convicted of the same offence three times. The Court, in following Gordon’s case (supra) held that "The rule of the Court is to refuse bail pending appeal." We cite the ruling by the Lord Chief Justice (Trevethin, LCJ) in full because we agree with it as we consider it to be of persuasive value. The Lord Chief Justice said at p.87:

"This is a class of case in which bail is dangerous. We must follow E. Gordon, 7 Cr App. R. 182: 1912. In fact, this is a fortiori: if we granted this application, we could never consistently refuse bail."

15. We highlight this danger with a great emphasis because if the Courts in this country are not cautious, bail cannot consistently be refused and so it is timely to remind us of this pertinent danger which was pronounced more than a hundred years ago, but is still very good law in our view. We will also emphasise the same principle in an Australian case later.

16. In R. v. Greenberg (1923) 17 Cr. App.R 106; the prisoner was convicted of indecent assault and sentenced to 6 months imprisonment. The Court granted him leave to appeal and leave to call certain witnesses, however refused bail. Lord Chief Justice Hewart said at 107, "it is only in exceptional cases that bail is allowed by this Court."

17. In R. v. Fitzgerald (The Duke of Leinster) (1923) 17 Cr. App.R 147, the prisoner had been convicted of obtaining credit without disclosing that he was an undischarged bankrupt and sentence was deferred. Bail was refused as the Court held that "the general rule is to refuse bail to prospective appellants." At p.148, Sankey, J said:

"This Court has frequently laid down that it will not grant bail unless there are exceptional and unusual reasons. Gordon, 7 Cr App R 182: 1912; Gott, 16 Cr App R 86: 1921; Wise, 17 Cr App R 17: 1922; and there are no such reasons in this case, and the Court will not grant this application."

18. In Australia we look at R. v. Patmoy (1945) 62 WN NSW 1, Maxwell J. held that, the "Prisoner had not established a case of "exceptional circumstances" to justify the granting of bail pending appeal."

19. That was a case were the appellant had applied for bail pending appeal on the grounds that his health was bad; he was suffering from an illness which requires special dietary attention, and his business would suffer serious damage in his absence. We note His Honour’s appropriate remarks on the grounds of application at page 2 where His Honour appropriately addressed the three grounds – the appellant’s state of health, his good character and damage to his business. We also note with great interest His Honour’s summary of the grounds of application which we refer to below.

20. At page 2, the Court said something which we consider to be of great value and significance in this jurisdiction as well as in this present application. The Court said:

"As an appeal is pending it is not desirable to advert in detail to the facts in evidence - relative to the appellant’s confidence of his acquittal on the trial. It suffices to say that in my opinion, the matters advanced do not – viewed as a whole – establish a case of "exceptional circumstances" so as to justify the granting of bail pending the hearing of the appeal."

21. We consider that the part of the Court’s judgment that has been emphasized above reflects 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. We will address that later because the earlier PNG cases used the same reasoning as the Court in the above case. With respect, we are 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 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 our view, is not desirable.

22. In Mario Giordano [1983] 6 A Crim R 397; the South Australia Court of Criminal Appeal held that, "in the absence of exceptional circumstances bail pending appeal should not be granted to a person convicted of an indictable offence." The appellant was a medical practitioner who was found guilty of 119 offences against the Health Insurance Act 1973 (Cth), and sentenced to 9 months imprisonment with hard labour. He appealed against conviction to the Full Court, then applied for bail before Matheson, J, who referred the appellant’s application to the Full Court, which eventually refused bail.

23. We wish to cite parts of the judgment of the Court at p 398 - 399 because we are convinced that these principles are very persuasive and should be adopted pursuant to Schedule 2.2 of the Constitution. We turn to page 398 where the Court said the following:-

"The inveterate practice of this Court, as of appellate Courts in the other Australian States and in England, has been that bail is not granted pending appeal against conviction or sentence for an indictable crime unless the circumstances are exceptional (Ryan [1930] SAStRp 16; [1930] S ASR 125).

The considerations which bear upon the grant of bail after conviction and sentence are very different from those which bear upon the grant of bail pending and during trial. Before and during trial, the primary, although not the only consideration is whether the applicant will appear when required to do so. This consideration has only a minor hearing on the grant of bail after conviction. Obviously bail after conviction would not be granted unless the circumstances were such as would have included bail before and during trial. After conviction however, other cogent factors also come into consideration."

"There are practical reasons, moreover, why Courts should exercise extreme caution about the grant of bail pending appeal. An appeal Court does not sentence afresh in the light of circumstances which have changed since sentence was passed. It should not be placed in the invidious position, particularly on an appeal against sentence, if the dismissal of the appeal having the effect of returning to prison a person whose circumstances may have changed greatly during a period of liberty on bail pending appeal. There is a serious risk of availability of bail leading to a proliferation of unmeritorious appeals thereby adding to the strains on the system of justice. Prisoners undergoing punishment in custody are prone to seize any opportunity to secure release, perhaps leaving the justice to take care of itself. Appeals would be launched, irrespective of the prospects of success, simply in order to secure release, or perhaps with a view to creating situations which would tend to frustrate justice by making it difficult to return the appellant to prison." (our emphasis).

25. We note that during arguments in that case, it was pointed out that the Courts had been more liberal in granting bail pending trial and since 1966 bail has been commonly granted during trial. That trend, it was argued, showed a more liberal attitude towards bail therefore that should result in some modifications of the practice in relation to bail pending appeal. To that His Honour said at 399:

"I do not think that the liberality with which bail is now granted to persons who have not been found guilty, can be extended to those who have been found guilty. In my opinion the Court should adhere to the practice that bail is granted pending appeal against conviction or sentence for serious crime only in exceptional circumstances" (our emphasis).

26. We stress that the constitutional presumption of innocence and right to bail are not available after a conviction. There is no longer a constitutional right to bail after a conviction. We must therefore emphasise that, once a person charged with an indictable offence has been convicted, his constitutional right to bail no longer exists. As the authorities have shown, if he desires bail after his conviction and following an appeal, he must demonstrate to the Court that there are exceptional circumstances warranting his release on bail.

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".

29. We are of the view that some of the principles stated by each of the three Judges constituting the Federal Court of Australia should be cited because they are persuasive and are very good principles of law.

30. We start with the fact that the appellant was convicted of murdering her 9 week old daughter and sentenced to mandatory term of life imprisonment on 29 October 1982. On 17 November 1982, she delivered a daughter. The baby daughter was taken away from her by administrative decision of the relevant authority in the Northern Territory. The significance of maintaining this fact is that, it is one of the grounds of her application for bail.

"In cases of this kind, the general principle of law to be applied is that as a general rule bail will not be granted pending the hearing of an appeal except in exceptional circumstances........ What are exceptional circumstances differ from case to case. The rationale of the principle, however, is clearly apparent. A jury has found the accused guilty and the accused has been sentenced to imprisonment. There remains no presumption of innocence. That sentence should be served except in exceptional circumstances."

32. It is interesting to note here that in that case, counsel for the appellant contended that the prospect of success of appeal against conviction was good therefore the reason to grant bail. At 390, this argument is stated in this manner-

"Counsel for Mrs. Chamberlain contended that in this case there was every prospect of the verdict being set aside and this was sufficient reason for granting bail."

"that contention is completely rejected. This Court, on the material before it, cannot form any view on that matter. It would be wrong for the Court, on the material before it, to form any view on the matter. I am satisfied, however that, the appeal is genuine, is bona fide, and that, on a consideration of the grounds of appeal, real questions are raised by the appeal which will require the consideration of the Full Court of the Federal Court which hears the appeal."

34. We consider that the point to note here is that, even the argument on the good prospect of the appeal against conviction being set aside, was not considered as an exceptional circumstance. In fact two paragraphs down from what has been quoted, Fox, J alluded to facts which did not constitute exceptional circumstances. These are what we would describe as the appellant’s personal antecedent, her release on bail pending trial and during trial, her residing at Avondale College with her husband and two sons, that she had no passport and she desired to leave with her family at Avondale College pending her appeal. The Court said, these facts, severally or collectively, do not constitute exceptional circumstances and sufficient to justify the granting of bail. It was therefore said that the facts of the case are unusual but that of itself does not constitute exceptional circumstances.

"The prospects of the appellant’s success on the appeal from her conviction and sentence are relevant considerations. Much has been said about them by her counsel and counsel for the Crown. I do not propose to review those submissions. It is undesirable for this Court to form a view at this stage on the appellant’s prospects of success in her appeal. All I will say is that there is no certainty of a success or a failure, some points appear to be fairly arguable"

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.

38. This Court is also of the view that when an appeal is against the severity of sentence, that should not be an exceptional circumstance for granting bail after conviction and pending appeal. A case in point is Chief Justice Young’s decision in the Supreme Court of Victoria in Re Kularie [1978] VicRp 29; [1978] VR 276; where the appellant was an applicant for leave to appeal against sentence and also an applicant for bail. In refusing the application for bail, the learned Chief Justice said -

"Bail will be granted after conviction and pending an appeal only in very exceptional circumstances. The essence of a prima facie ground of appeal is of little weight where the ground of appeal is that the sentence imposed is too severe."

40. In Papua New Guinea, the prospect of success in an appeal as an exceptional circumstance in granting bail following conviction and pending appeal has not been judicially determined by the Supreme Court. However we reiterate that after conviction, there is no longer a constitutional presumption of innocence and right to bail.

41. After Independence, and since 1978, a number of cases have developed the common law principle that an applicant for bail after conviction and pending appeal must show exceptional circumstances in order to be admitted to bail. That was held in The State v. Robert Kani Yabara (No.1) [1984] PNGLR 133. That case, including some from single Supreme Court Judges, in the recent past have not, held that the prospect of success of an appeal is an exceptional circumstance until the decision of Kapi, DCJ (as he then was) sitting as a single Judge of the Supreme Court in Major Walter Enuma & Ors v. The State (1997) unreported, SC.538, 30 December 1997.

42. The earlier cases which the Supreme Court discussed in Yabara are Rolf Schubert v. The State [1978] PNGLR 394 (Raine, DCJ); Arthur Gilbert Smedley v. The State [1978] PNGLR 452 (Wilson, J) and John Jaminen v. The State [1983] PNGLR 122 (Pratt, J). The more recent cases are Major Walter Enuma & Ors v. The State (supra); Bola Renagi & Ors v. The State (2000) unreported, SC649, 1 August 2000 (Amet, CJ); Robin Warren & Ors v. The State (2003), unreported, SC725, 17 December 2003, (Jalina, J) and Aaron Puli v. The State, (2004), unreported and unnumbered, (MP 2 of 2004) 18 February 2004, (Sevua, J).

43. In Enuma’s case, Kapi, DCJ (as he then was) concluded that there was a good prospect of appellants succeeding in the appeal. In the circumstances, he was satisfied that the appellants had shown exceptional circumstances for their release on bail.

44. In Bola Renagi & 2 Ors (supra) Amet, CJ held that the likelihood of success is not of itself an exceptional circumstance. This is the same view discussed in the Australian cases. We agree with His Honour’s reasoning based in Schubert and Smedley (supra). We are of the view that the principle in that case is similar to the case of Kularie (supra) and we adopt the principles here. After citing these cases, His Honour said at page 4:

"I adopt and apply these principles to this application. I too do not consider that to simply argue that certain proposed grounds are likely to succeed necessarily of itself constitutes an "exceptional circumstance" favourable to the applicants to merit grant of bail. I am also of the opinion that it is not for me to make up my mind at this point about the changes of appeal, it would be wrong for me to do so in the absence of full argument. The appeal is not going to be an easy one. As Dep CJ Raine also remarked, "indeed, it must be that I sat on the appeal myself", and so it would be more appropriate to express an opinion as to the likely merits of the appeal." (emphasis added).

45. In Robin Warren, Jalina, J, although referred to the two passages in Schubert and Smedley (supra) that Amet, CJ also cited in Bola Renagi (supra), Jalina, J nonetheless held that the likelihood of success of the appeal constituted an exceptional circumstance and consequently granted bail to the applicants.

46. Sevua,J a member of this Court, had the opportunity to consider the same issue in Aaron Puli (supra) bearing in mind what was said in the cases that are cited in this judgment. At that time, His Honour not aware of Amet, CJ’s decision in Renagi (supra). However, he was very much informed of what the Court said in Smedley (supra) and Schubert (supra) and followed the principles in those cases in refusing bail because he considered that the success of the appeal was not an exceptional circumstance.

47. In Yaki v. The State [1990] PNGLR 513; the Supreme Court held inter alia, that the requirement to show exceptional circumstances for a grant of bail pending the hearing of an appeal under s. 11 of the Bail Act were not satisfied. Even though the appellant’s counsel in that case did not argue the success of the applicant’s appeal on all the grounds of appeal, counsel did raise irregularity in the conduct of the trial, which we assume would have related to the issue of good prospect of success of the appeal.

48. We need to highlight two pertinent matters in that case. First, Kapi, DCJ (as he then was) was the President of the Court in Yaki’s case. Secondly, the issue of the prospect of success of the appeal was raised in an indirect manner by counsel for the applicant even though that issue did not arise from all the grounds of appeal. Thirdly, the Court held that, that ground of appeal was not likely to succeed and found it unmeritorious. The reason for outlining those facts is because the very issue that is raised and argued in the case before us now, was discussed and considered in that case. Therefore the Court had the opportunity to determine whether the prospect of success of the appeal amounted or constituted an exceptional circumstance. However, the Court did not, in spite of the fact that the opportunity existed. Had the Court considered that the prospect of success in an appeal was an exceptional circumstance, it would have expressly pronounced that as the law.

49. The Court did not express that opinion however, in his decision as a single Judge of the Supreme Court in Enuma’s case, Kapi, DCJ, (as he then was) expressed a view that the prospect of success in the appeal was an exceptional circumstance. We find this to be conflicting and inconsistent with the other cases. With respect, we find that his opinion is obiter dicta and not binding on the Full Court. But more so, for the sake of consistency and judicial comity, we find that we are unable to agree with his opinion. If one considers the other cases carefully, the principle that the prospect of success of an appeal is not an exceptional circumstance has been expressed by different Judges in different Courts.

50. We note that in Rolf Schubert (supra), Raine, DCJ expressed the same principle that Courts in England and Australia had expressed and the same principle has received a very good reception in Papua New Guinea. We also note that Wilson, J followed Schubert’s case in Gilbert Aurthur Smedley (supra). We further note that the same principle in Schubert’s Case was adopted and applied by Amet, CJ in Bola Renagi & 2 Ors (supra) at pages 3 and 4 of his judgment. We are persuaded to the extent that we are of the opinion that this is a very good principle of law that must guide the Courts in this country in this type of application. We adopt and apply the same principle in the present application.

51. We cite with approval the principle enunciated in Rolf Schubert and followed in Arthur Smedley and Bola Renagi & 2 Ors and we confirm that as the law in relation to an application for bail after conviction and pending appeal. We approve the following principle:

"A person who has been convicted and lodged an appeal against that conviction and is seeking release on bail pending the hearing of that appeal pursuant to s.11 of the Bail Act 1977, must, in order to be admitted to bail, show exceptional circumstances."

52. We agree with the principles set out in those cases and we will cite those principles here too. In Rolf Schubert v. The State (supra) at p 397 Deputy Chief Justice Raine said the following:

"Mr. Griffin also relies upon the fact that there is a reasonable probability that the appeal could succeed..... It is not for me to make up my mind at this point of time about the chances of the appeal, it would be wrong to do so in the absence of full argument.......However I say, tentatively only, that the appeal does not look a very easy one to me, and I am not of opinion that the chances of success are so great that exceptional circumstances favourable to the applicant are constituted."

53. In Arthur Gilbert Smedley (supra), determined subsequent to the above case, Wilson J said at p 454:

"The principal reason relied upon by Mr. Kendell in making this application was that, prima facie, the grounds of appeal are of an arguable nature. Assuming arguendo, that, prima facie, the grounds of appeal in this case are of such a nature, I am not persuaded by..........any authority that that of itself constitutes an "exceptional circumstances." That circumstances does not of itself immediately conjure up in my mind the idea of something exceptional.............It is to be remembered that under s.42 (6) of the Constitution and the Bail Act, the right to bail of an ordinary accused person (ie. a person accused of any crime other than treason or willful murder) is guaranteed to him "at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise requires. "No such right is preserved to him after conviction, rather suggesting that the legislature contemplated that bail would be refused at that stage unless circumstances could be shown to exist which justified the exercise of the judicial discretion. I acknowledge that s.11 of the Bail Act nowhere mentions "exceptional circumstances" (or even "special circumstances"........In my opinion this judicial gloss has been put upon the section because of the view that the "guilt of the person accused as been established.........in what must be taken until the contrary be shown to be a trial properly conducted without error of law" (R. v. Southgate (supra) Sugerman J. at p.44[1]

54. Another National Court decision which followed the above cases is John Jaminen v. The State [1983] PNGLR 122; where Pratt, J said; "The applicant needed to show "exceptional circumstances" to be granted bail pursuant to s.11 of the Bail Act 1977."

55. We have already cited the opinion of Amet, CJ in Bola Renagi & 2 Ors and we consider that those cases are authoritative for the principle that we have approved and cited in this judgment.

56. We consider that it is wrong and undesirable for a Court hearing a bail application after conviction, to be weighing up the prospects of success by considering the grounds of appeal. It is for the appropriate Court to determine the success or failure of an appeal or the grounds. We concur with, and adopt, what Amet, CJ said in Bola Renagi & 2 Ors. We are of the opinion that that is the correct approach in law and the correct law to apply in this application and in all similar applications. We consider that Schubert, Smedley, Jaminen and Bola Renagi are good law. We also adopt Chief Justice Young’s statement in Re Kularie (supra) and Lockhart, J’s views in Chamberlain (supra). We adopt those principles and apply them in the present case.

57. We disapprove Kapi, DCJ’s opinion in Walter Enuma (supra) and Jalina, J’s opinion in Warren & Ors (supra). It is quite inappropriate and dangerous, in our view, for the Supreme Court to start to determine the issue of the prospect of success of an appeal when the Court is not dealing with the substantive merits of the appeal. It is tantamount to hearing the grounds of appeal and that is not the function of the Court at that stage of the appeal.

58. For these reasons, we hold that the prospect of success of an appeal is not an exceptional circumstance per se. The circumstances of the whole appeal must be considered, not just the prospect of the success of the appeal. Accordingly, we find that the applicant’s contention on this issue is unmeritorious. We therefore refuse the application and order that the application be dismissed.

Narokobi Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent

Supreme Court of Papua New Guinea

Mataio v State [2007] PGSC 22; SC865 (8 June 2007)