Maraga v State [2010] PGSC 60; SC1573 (20 December 2010)

SC1573

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCAPP 14 OF 2010

BETWEEN:

ARUA MARAGA

Appellant/Applicant

AND:

THE STATE

Respondent

Waigani: Injia CJ
2010: 20 December

SUPREME COURT- Bail application pending appeal-Medical grounds - Exercise of discretion - Bail refused

Counsel:
Mr Baniamai, for the Applicant
Mr Kupmain, for the Respondent

20^th December, 2010

1. INJIA CJ: The appellant applies for bail under s 11 of the Bail Act, following appeal against his conviction. He is serving a term of life imprisonment for wilful murder.
2. It is established principle that an applicant for bail after conviction and pending appeal must show exceptional circumstances why bail should be granted. Where a particular circumstance is relied upon, it must be shown that it is of an "extra-ordinary" nature. Leading cases on point are Smedly v State [1978] PNGLR 452, Jaminan v The State [1983] PNGLR 722, The State v Yabara (No. 1) [1984] PNGLR 133, Enuma & Others v The State (1997) SC 538, Mataio v The State (2004) SC 865; the more recent case of Denden Tom v The State (2007) SC 914 and other more recent cases cited by counsel. The principles applicable and the approach to be adopted is discussed by Kapi DCJ in WaIter Enuma & Others v The State, as follows:
"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. The situation is different to the 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 The strong presumption in favour of bail pursuant to s 42 (6) of the Constitution is no longer applicable.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.”

3. In the present case the applicant relies on his medical condition as the only factor constituting exceptional circumstances. The case law on medical grounds as an exceptional circumstance is scarce and the little case law that is there are scattered. From the few cases that have come to my attention, I am able to discern the following principles: An applicant's medical condition may be an exceptional circumstance, provided it is serious and such that detention in hard labour will have a deleterious effect on the applicant and could seriously endanger the applicant's health or life: Rolf Schubert v The State [1978] PNGLR 394 at 396. The onus is on the applicant to provide corroborative evidence by way of medical certificate or report, showing serious and deteriorating medical condition: Joe Parakas v The State, Kuku Hayara v The State (2008) N3488 (Makail J), Martin Abel v The State (2009) N3488 (Makail J), SCR Nos 12 and 12A of 1984; Jacob Wama Kelewali v The State (2003) N2716 (Salika J), Denden Tom v The State (2004) N2716. Medical evidence must come from a reputable medical practitioner, either private or public: State v Wiri Siminz (2010) N4062 (Makail J). Evidence of stressful living conditions in jails, though relevant, is not necessary to be provided as stress is normally attendant with deprivation of personal liberty through detention. Jails normally provide medical services in collaboration with health authorities. Where lack of medical services at the jail is relied upon, evidence is required 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. As I said in SCRA No. 37 of 2009 Janos Bereni & Irene Bereni v The State, Unpublished and Unnumbered Supreme Court judgment dated 26^th February 2010:
“In relation to the applicants' medical conditions, it appears the two applicants had pre-existing medical conditions which has made life in jail uncomfortable. It is clear New Ireland provincial health authorities have been inspecting and monitoring the living conditions in the jail and have proposed remedial measures. This appears to be an ongoing exercise. There is no evidence that the applicants are being treated any differently than the other prisoners on health care matters to their detriment. They can be provided health care facilities in the prison or outside the prison during the appeal process.”

4. I apply those principles and observations to the facts of this case. The evidence produced by the applicant shows that he is carrying an injury on his right mandible area which was successfully treated several years ago but with residual swelling occasionally and undergoing TB treatment for six weeks. He submits the TB treatment is being administered at the ClS upon instructions from medical doctors at Port Moresby General Hospital who diagnosed the disease. He relies on the medical report of Dr John Kulu of Port Moresby General Hospital and medical notes issued by Corporal Hilda Gazawe. TB is a communicable disease and is serious. The applicant's health condition has deteriorated and his continued detention in the jail will endanger his life and pose health risks for other inmates. He should be released on bail to enable him to complete the treatment and his case to be reviewed by the Court after that six months. He also invited me to view the prisoner's condition when he was in court and to ask him any questions. He submits two guarantors have given an undertaking by filing affidavits. In all the circumstances, exceptional circumstances have been shown to warrant grant of bail.

5. Counsel for the State submits the medical evidence is insufficient and lacks weight to establish an exceptional circumstance. There is no evidence from a medical doctor to confirm the TB diagnosis and prescribed medical treatment. Even if the medical notes are accepted, the treatment can be continued at the jail and if further treatment is required that can be arranged with the Port Moresby General hospital. There is no evidence that the applicant's condition and treatment is a risk to other prison inmates.

6. I accept that the applicant has medical conditions which require ongoing medical attention. The injury he is carrying on his right mandible area and the problems with his tooth are not serious and life-threatening. The TB disease is a communicable disease if it is not treated properly and it is serious and could be life threatening for him and other inmates. However, I accept the State's submission that the condition is being adequately treated at the medical facilities at Bomana in conjunction with the Port Moresby General Hospital. There is no medical evidence to show that inmates suffering from that same or other similar communicable disease cannot be accommodated at the jail and appropriate treatment administered to them in a way that the spread of the disease is contained. Also when I observed his appearance, he appeared to be in reasonable condition. In the circumstances, I am not satisfied that his medical condition falls into the exceptional circumstance category and refuse the application. A Certificate of Refusal of Bail to which this ruling is attached will be issued forthwith (see s 16 of the Bail Act).

_________________________________________________________
Baniyamai Lawyers: Lawyer for the Appellant

Public Prosecutor: Lawyer for the Respondent