Tom v State [2007] PGSC 40; SC914 (3 December 2007)

SC914

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 61, 62 & 63 OF 2004

DENDEN TOM, DANIEL WILSON & SAMUEL TOM
Appellants

v

THE STATE
Respondent

Waigani: Gavara-Nanu, David & Hartshorn, JJ
2007: 27 November & 3 December

CRIMINAL LAW – Practice and procedure – bail application after lodging appeal from conviction and sentence for wilful murder – applicants must show exceptional circumstances – grounds advanced do not amount to exceptional circumstances – ss. 11 & 13 (20, Bail Act, Chapter 340 and s.10 (2) Supreme Court Act.

Cases cited:

John Jaminan v. The Sate [1983] PNGLR 122
Major Walter Enuma & Ors v. The State [1997] SC538
Rakatani Mataio v. The State, SCA 13 of 2004, Unreported Judgment, 8 June 2007 (Sakora, Sevua & Lenalia, JJ)
Sam Tom & Anor v. The Superintendent of CIS, Giligili [2004] N2716

Counsel:

Mr. C. Narokob, for the Applicants
Mr R. Auka, for the Respondent

RULING ON BAIL APPLICATION

3 December, 2007

1. BY THE COURT: Introduction: This is an application for bail after the lodgement of an appeal against conviction and sentence made pursuant to s.11 of the Bail Act, Chapter 340. The applicants together with Charles Barnabas who has since escaped from gaol and remains at large, were convicted for wilful murder by the National Court sitting at Alotau on 4 July 2002 after a trial and were subsequently sentenced to life imprisonment. The applicant, Daniel Wilson also escaped from gaol, but has since surrendered and is currently serving his sentence at the Giligili gaol.

2. The applicants move this application on the Bail Application filed on 22 November 2007 and rely on the Affidavit in Support of Mr. Camillus Narokobi sworn and filed on 22 November 2007 (the Affidavit in Support).

3. The application is contested by the State on the sole basis that the grounds advanced by the applicants do not constitute exceptional circumstances.

4. The applicants initially applied for bail to Justice Davani sitting as a single judge of the Supreme Court on 11 August 2003 proffering as grounds to establish exceptional circumstances that there was fresh evidence in the form of the dying declaration of the person murdered to prove their innocence, the possible likelihood of success given there was likelihood of bias as shown by the trial Judge’s refusal to visit the crime scene and that evidence on the defence of alibi was not properly considered. On 21 August 2003, Her Honour refused the application concluding that the applicants failed to establish any exceptional circumstances. A copy of Her Honour’s published ruling is Annexure "A" to the Affidavit in Support.

5. Whilst conducting our research, we have come across an unreported judgment of His Honour, Jusitce Lay regarding another application for bail by Denden Tom and Samuel Tom only (the second application) following their earlier unsuccessful application made together with the other co-appellants. This matter was not brought to the Court’s attention by either counsel and in particular by Mr. Narokobi, whose firm appears to have also acted for the two applicants. The second application was made in proceedings commenced by the two (2) applicants against the Superintendent of the CIS at Giligili and the State filed by way of an Originating Summons No. 479 of 2004. The arguments raised were that: Samuel Tom had been attacked and injured by a warder whilst at the CIS, there was fresh evidence of the dying declaration of the deceased pointing to their innocence and a newspaper report reporting that police had attributed the murder to another person whom they had shot dead. His Honour in his judgment delivered on 27 October 2004 which is numbered N2716 concluded that the new material placed before him did not constitute a substantial change of circumstances to warrant another application to be moved before a single judge and refused their application as a result.

THE LAW

6. It is trite law that for applicant to successfully apply for bail following conviction and sentence pending determination of the appeal, he has the onus to substantiate grounds that constitute exceptional circumstances. The matters that constitute exceptional circumstances must be determined from the whole of the circumstances of a particular case, but it is impossible to list circumstances falling under such category: Major Walter Enuma & Ors v. The State [1997] SC538. This Court recently examined this principle at great length with approval in Rakatani Mataio v. The State, Unreported Judgment, SCA 13 of 2004, 8 June 2007, (Sakora, Sevua & Lenalia, JJ) including a review of leading case authorities on point in England, Australia and in this jurisdiction. Cases such as Major Walter Enuma and John Jaminan v. The State [1983] PNGLR 122 authorities which were referred to by counsel in their respective submissions, were also discussed.

7. As to the issue of the appeal having a good prospect of succeeding raised in Rakatani Mataio as constitution an exceptional circumstances, the Court said:-

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...........................

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 circumstances. We find this to be conflicting and inconsistent with 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 circumstances has been expressed by different Judges in different Courts.................................

We are persuaded to the extent that we are of the opinion that his 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......................

For these reasons, we hold that the prospect of success of an appeal is not an exceptional circumstances per se. The circumstances of the whole appeal must be considered, not just the prospect of the success of the appeal.

8. Appeal against severity of sentence is also not an exceptional circumstance: Rakatani Mataio

9. The appropriate provisions sanctioning this application to be moved before the full Court are s.11 and s.13 (2) of the Bail Act and s.10 (2) of the Supreme Court Act.

GROUNDS ADVANCED FOR BAIL

10. Counsel for the applicants has advanced various grounds under which this application should be granted both in his submissions and in the Affidavit in Support and these are categorized as follows:-
    
    • (a) There is a good prospect of success relying on the defence of alibi, that there was another suspect, that there was a fresh evidence in the purported dying declaration of the deceased to support their innocence, that the burden of proof leading to their conviction was not discharged, that the trial judge wrongly held that their witnesses were not credible, that their identification as the killers was based on unsatisfactory and uncorroborated circumstantial evidence, that there was the likelihood of the trial judge being biased as he was alleged to have been the Public Prosecutor when the applicants were indicted and this perception was strengthened by the trial judge’s failure to visit the crime scene and that there was a lack of motive on the part of the applicants to kill the deceased.
      
    • (b) The penalty was excessive in the circumstances given the applicants’ youthfulness and they being first time offenders.
      
    • (c) Preparation of the appeal will be assisted by the release of the applicants.
      
    • (d) Due to the looming vacation period which will be lengthy, the appeal may not be heard for another two to three months either in Alotau or Port Moresby.
      
    • (e) Denden Tom who was physically injured be released on medical and humanitarian grounds.
      
    • (f) Fundraising to meet legal costs will be assisted by the release of the applicants.
      
    • (g) The applicants, in particular Denden Tom and Samuel Tom, have good character reports from the Giligili gaol commander.
      
    • (h) The applicants and community leaders were willing to post bond for bail.
      

DISCUSSION OF GROUNDS ADVANCED FOR BAIL

Ground (a):

11. Rakatani Mataio makes it clear that the prospect of success is not of itself an exceptional circumstance.

12. We adopt the position taken by Justice Davani in relation to the fresh evidence of the purported dying declaration of the deceased. This is a matter for a separate application which should be made at the hearing of the appeal under O.7 r.57- r.64 of the Supreme Court Rules. Mr. Narokobi of counsel for the applicants had at the outset sought leave to make an application to introduce fresh evidence to coincide with the bail application, but he was discouraged by the Court not to since the Court was not hearing the appeal proper.

13. We consider that the other issues raised are matters that should be argued before the appellate Court as we are not seized of the appeal at this juncture to consider them. We would, in our view, be dealing with the merits of their appeals if we were to look at the evidence at this stage.

Ground (b):

14. Rakatani Mataio also makes it clear that the appeal against severity of sentence is not an exceptional circumstance.

Grounds (c), (d), (f), (g) and (h):

15. These grounds clearly do not constitute exceptional circumstances.

Ground (e):

16. There is no evidence before the Court about the alleged injury and therefore this ground does not warrant any consideration.

CONCLUSION

17. We are not satisfied that the applicants have established any exceptional circumstances to be admitted to bail. Their application is refused.

_____________________________________________________________

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