In re Bail Act Chapter 340, Application by Paul Tiensten [2014] PGSC 29; SC1343 (26 June 2014)

SC1343

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APP NO 2 OF 2014

IN THE MATTER OF THE BAIL ACT CHAPTER 340

AND

IN THE MATTER OF THE APPLICATION OF PAUL TIENSTEN

Waigani: Sakora J, Cannings J, Poole J
2014: 30 May & 26 June

CRIMINAL LAW – practice and procedure – bail applications – after conviction and sentence by the National Court – appeal against conviction pending – relevant principles – exceptional circumstances must be shown – onus on the applicant – what constitute "exceptional circumstances" – prospect of success of the appeal – threats to personal safety and life at the prison – health concerns – attend to arranging funds and retrieval of documents to assist counsel to prepare the appeal.

Held:

(1) A prisoner serving a term of imprisonment following conviction and sentence for an indictable offence and who applies for bail pursuant to s 11 of the Bail Act must show exceptional circumstances in order to be admitted to bail.

(2) What constitutes exceptional circumstances depends on the peculiar circumstances of each case.

(3) Instances of harassment, use of abusive and threatening language, and actual violence perpetrated by fellow inmates do not constitute exceptional circumstances for grant of bail pending appeal, unless and until the internal administrative procedures and processes provided for under the legislation have been availed of and exhausted.

(4) Instances of alleged breaches of constitutional rights and freedoms do not constitute exceptional circumstances unless and until processes for enforcement of those rights and freedoms have been availed of and exhausted.

(5) Making arrangements for funding and retrieval of documents for preparation of the appeal do not constitute exceptional circumstances for grant of bail.

(6) Prospect of success of the pending appeal do not constitute exceptional circumstances for grant of bail pending appeal.

Cases cited

The following cases are cited in the judgment:

Aaron Puli v The State (2004) N2515
Alice Lynne Chamberlain [1982] FCA 235; [1982] 6 A Crim R 385
Bola Renagi & Ors v The State (2000) SC649
Derbyshire v Tongia [1984] PNGLR 148
Himson Mulas v R [1967-70] PNGLR 7
John Jaminan v The State [1983] PNGLR 123
Lionel Gawi v The State (2006) SC850
Mario Giordano (1982) 6 A Crim R 397
MVIT v Reading [1988-89] PNGLR 610
Public Prosecutor v John Aia [1978] PNGLR 224
R v Edgar Gordon (1912) 7 Cr A R 182
R v Patmoy (1945) 62 WN (NSW) 1
Rakatani Mataio v The State (2007) SC865
Re Ilett [1974] PNGLR 49
Re Upai Kunangel Amin [1991] PNGLR 1
Schubert v The State [1978] PNGLR 394
SCR No 2 of 1992 [1992] PNGLR 336
Smedley v The State [1978] PNGLR 452
Taio Mino v The State (2012) N5180
The State v Robert Yabara [1984] PNGLR 133
Zanepa v Kaivovo (1999) SC623

Counsel

G J Sheppard & P Tabuchi, for the applicant
A Kupmain, for the respondent

26 June, 2014

1. BY THE COURT: The applicant Paul Tiensten was on 22 November 2013 convicted of the offence of misappropriation contrary to s 383A(1)(a) of the Criminal Code by the National Court following a trial. On 28 March 2014 he was sentenced to a term of imprisonment for nine years. He is presently serving this sentence at the Bomana Correctional Institution outside Port Moresby.

2. On 2 May 2014 the applicant filed a Notice of Appeal against his conviction, pursuant to s 37(15) of the Constitution and s 4 of the Supreme Court Act. Pending the hearing of that appeal, he applies to this court to be admitted to bail pursuant to ss 6(1) and 11 of the Bail Act.

Evidence in support of application

3. Learned counsel for the applicant in moving the application referred to and relied upon the affidavit of the applicant sworn on 4 May 2014. The sworn depositions of three convicted prisoners housed in the same prison block are also referred to and relied upon as supportive of this application. The applicant outlines the circumstances of his incarceration in "Cell 6B with other high risk persons" at the Bomana facility. These circumstances are described as "serious threats" to safety and life and are said to have started the moment he entered the prison. They are enumerated as continuing threats to life, hurling of verbal abuse and harassment and actual hurling of stones at his person. The latter are said to have been near-misses, except for actual contact having been made once.

4. All these are alleged to have been perpetrated by fellow inmates from the general prison population, having been provoked, it would seem, by the applicant's status/position in society before conviction and imprisonment, more particularly as a national legislator directly involved in recent amendments to the law increasing prison sentences. The applicant deposes that on 12 April 2014 he lodged a formal complaint with the Commander of the gaol about the threats, abuse and harassments, which complaint, he asserts, has so far not elicited any positive response.

5. Mr Sheppard of counsel referred to and relied also on affidavits sworn and filed by three other high-profile inmates of B Block. Their respective sworn depositions uniformly confirm and support what the applicant asserts as actions and utterances that pose serious risks to his personal safety and life. One of them, Dr Theo Yasause, who is serving a sentence for wilful murder, deposes that he is the chairman of the Bomana Peace and Good Order Committee, comprised of both inmates and prison officers, which body he says meets and considers "peace building" within the institution. It would appear that a crisis meeting of prisoner representatives (of the country's four regions) took place at Bomana Gaol on 14 April 2014 when these incidents were discussed. It is said that the meeting considered these incidents to be serious and requests had been made to the prison authorities to relocate the applicant to another and separate block from the general prison population. Nothing is said to have come out of this request.

6. The supporting affidavits uniformly refer to what are said to be similar types of incidents in the recent past leading to the fatal stabbing of one prisoner by another, grabbing national headlines due in the main to the notoriety of the alleged offender. These deponents suggest that given the lack of positive response from the prison authorities in relation to what they say is a real risk to the applicant's life, grant of bail is the only option.

7. In his affidavit, the applicant deposes to what he describes his deteriorating health condition said to be attributable to the constant threats, intimidation, harassment and abuse he is being subjected to. Anxiety, panic attacks and raised blood pressure are said to be presenting health concerns. The applicant refers to the parliamentary sittings (in May, commencing on the 6th) to suggest that missing that sitting will constitute three consecutive sittings that he will have missed, thereby disqualifying him as an MP. Finally he contends that his Notice of Appeal demonstrates "an arguable case with strong likelihood of success".

The applicant's case

8. Learned counsel for the applicant, after discussing the case law in the various Australian jurisdictions and in this jurisdiction, took up the applicant's last point first, that is, "an arguable case with strong likelihood of success". Mr Sheppard submitted that this constituted exceptional circumstances that the court should take into account in the exercise of its discretion.

9. It was contended that there exists "an extraordinarily high prospect of success of the Applicants (sic) appeal". Counsel then proceeded to refer to and rely on trial or single judge pronouncements in the National Court as well as the Supreme Court, in conjunction with Australian case authorities, in relation to considering the prospect of success at the pending appeal as constituting exceptional circumstances. In this respect, the prospect of success of the appeal appears to be the major focus of the applicant's case. Indeed, the grounds of appeal contained in the Notice of Appeal are dealt with in conjunction with the discussion on the case law relied on.

10. Then, what is characterised as "other circumstances for bail" are relied on as constituting also "exceptional circumstances" for the court to admit the applicant to bail. That is to say, those factual circumstances deposed to in the four affidavits (discussed above) that are contended to pose a real risk to the applicant's safety and life should be sufficient to persuade the court to grant bail.

11. Finally, it is submitted that those "other circumstances for bail" demonstrate that the applicant is being denied his constitutional rights. In this respect reliance is placed on what is provided under s 37(17) of the Constitution. Similar support on the issue of Constitutional rights, it is submitted, comes from ss 13 and 116 of the Corrective Services (sic) Act 1995, the former provision relating to the statutory responsibility of the Commissioner for the "welfare and safe custody of all detainees" (sub-s (b)(iii)), and the latter defining who is "in the custody of the Commissioner" for the responsibility under s 13 (b)(iii) to apply to.

12. In the written submissions filed on behalf of the applicant, the need for the applicant to attend to arrangements for his appeal such as: funding, unhindered access to counsel to give instructions, and to access and "recover large volume of documents that are stored off site (sic) . . . which are critical to his appeal", together with the plight of the family left behind, are offered as circumstances that could be described as exceptional. We note that Mr Sheppard made no mention of these matters in the oral submission, one way or the other.

The State's position

13. The State objects to the grant of bail. No answering affidavits to the four filed and relied on by the applicant, nor any other supporting affidavits, were filed on behalf the State. The State's position as put briefly before us by Mr Kupmain of counsel is that the applicant has not discharged the onus placed on him to show exceptional circumstances for bail as required. He submits in this respect that the grounds or circumstances relied on do not amount to exceptional circumstances, either individually or in combination.

14. In respect of the applicant's reliance on prospect of success of the appeal, counsel urges the court to follow this court's earlier decision in Rakatani Mataio v The State (2007) SC865, which stated that prospect of success of the pending appeal is not a relevant consideration for bail, and, thus, not exceptional circumstance(s) as required. As for the applicant's reliance on incidents of threats to his personal safety and life, learned counsel submits that these are, in the first instance, matters of internal administration within the powers of the gaol commander. It is further submitted that if the court finds that the allegations of the applicant constitute breaches of his constitutional rights, as counsel for the applicant has urged, these allegations can be dealt with by the court under the Constitution itself under s 57 (enforcement of guaranteed rights and freedoms).

15. Thus, it is submitted on behalf of the State that, firstly, the prospects of the appeal succeeding does not constitute exceptional circumstances to justify grant of bail, and, secondly, the circumstances surrounding his incarceration at that prison facility are matters that ought to require availing of the administrative avenues before coming to court and asserting those as grounds for bail pending the hearing of his appeal.

The law

16. This application is moved pursuant to ss 6 and 11 of the Bail Act. We say that s 11 is the only relevant provision to invoke here. Under the plain terms of s 6, this court has no jurisdiction to entertain a bail application, the provision concerned with pre-conviction and sentence stage. The concluding part of s 6, 'at any stage of the proceedings' envisages, in our opinion, stages pre-trial, during the course of the trial, and before conviction and sentence. Once conviction and sentence take place, the person is a State prisoner, and 'the proceedings' have concluded then and there. The applicant comes to this court post-conviction and sentence, and the notice of appeal places him in another court, this court, awaiting new proceedings.

17. The law in Papua New Guinea, as indeed in both Australia and England, is that bail allowing a prisoner to remain free in the community after conviction and sentencing for an offence, pending the hearing and determination of the appeal, can only be granted upon the applicant demonstrating to the satisfaction of the court "exceptional circumstances". This principle was recognised and restated as far back as the pre-Independence single judge decision of Frost J (as he then was) in Himson Mulas v R [1967-70] PNGLR 7, where bail was refused for the applicant who had appealed following his conviction and sentence on a charge of 'dangerous driving causing death'. In another single-judge decision, bail pending appeal against sentence was granted where the conviction and sentence had followed a plea of guilty: Re Ilett [1974] PNGLR 49 (pre-Independence Supreme Court).

18. Four years later this conclusion was considered critically. In a post-Independence single judge ruling in Schubert v The State [1978] PNGLR 394, Raine DCJ restated the law as follows:

The practice of the court here in PNG has been that applications for bail after conviction are viewed with very great care indeed. The situation after conviction is a different one than before conviction when the presumption of innocence still prevails. After conviction, an applicant must show that there are matters which constitute exceptional circumstances before bail is allowed pending appeal.

19. Two subsequent cases followed the same principle: Smedley v The State [1978] PNGLR 452 and John Jaminan v The State [1983] PNGLR 123. It was not until the case of The State v Robert Yabara [1984] PNGLR 133, that a full bench of the Supreme Court endorsed the single-judge statements on the applicable principles, by adopting and applying what had been stated in two Australian cases Mario Giordano (1982) 6 A Crim R 397 and R v Patmoy (1945) 62 WN (NSW) 1.

Relevance of prospects of success of appeal

20. After Yabara's case there was a series of single-judge decisions which while applying the principle that exceptional circumstances had to be shown in order for an applicant/appellant to be admitted to bail, embarked upon what would appear to be a consideration of the prospect of success at the appeal, by conducting an examination of the grounds of appeal, to finally determine whether these constituted exceptional circumstances. Needless to say, these exercises entailed the courts that were hearing bail applications descending into the merits or otherwise of the appeals, thereby, we would suggest, usurping the proper and competent jurisdiction of the appellate court.

21. It will be noted that these single-judge decisions, when considering the prospect of success of the appeal in question, employed various phrases such as: "very high likelihood or an extraordinarily high prospect of success"; "based on a point of law which prima facie weighed strongly in favour on the prospect of their success on appeal"; and, "raise arguable points of law". It would not be unreasonable to suggest that these "opinions" basically pre-judged the outcome of the appeal then pending, when they had no business to.

22. The issue of 'prospect of success of the appeal' had not been directly raised in the Yabara case. It was not until Rakatani Mataio v The State (2007) SC865 that a full bench Supreme Court had an opportunity to reconsider whether what is argued to be a strong prospect of success of an appeal constituted exceptional circumstances to warrant admitting an appellant to bail. The Court comprehensively examined the pertinent English and Australian case law on the entire question of bail following conviction and sentence, and pending the hearing and determination of an appeal, and did likewise in relation to the PNG cases that have expressed differing views on the particular issue of the prospect of success of an appeal. Mataio's case is now the leading PNG authority on the subject. Until such time as another Supreme Court is successfully urged to not follow the law enunciated in that case, it must be followed.

23. Under the doctrine of stare decisis which is part of our underlying law, there exists a positive obligation to follow a previous decision in the absence of justification for departing from it. In his authoritative text Precedent in English Law (Clarendon Press, Oxford, 1961), Rupert Cross wrote this (at page 4):

Judicial precedent has some persuasive effect almost everywhere because stare decisis (keep to what has been decided previously) is a maxim of practically universal application. The peculiar feature of the English doctrine of precedent is its strongly coercive nature. (underlining ours)

24. A quick reference to the hierarchy of the courts (on which our legal system is based) as clearly established under s 155(1) of the Constitution should enable an appreciation of the "practical operation of the English doctrine of precedent" (ibid, page 5). In this respect, we are somewhat surprised that learned counsel for the applicant concentrated and relied on, firstly, exclusively Australian cases and, secondly, single-judge PNG cases. Mataio's case was cited in the applicant's submissions only tangentially, as a vehicle to refer to and rely on the Australian cases. This PNG full Supreme Court decision was thus referred to in passing as having "cited the case of ...", without so much as discussing and acknowledging what the case was authority for.

25. The principles adopted and applied in Mataio, it must be acknowledged, emerged from, as stated above, an extensive discussion of the pertinent case law in both England and Australia. These cases are of persuasive value, and if found to be useful and pertinent to our circumstances, they are adopted and respectfully applied as such. We hasten to add that these foreign cases cannot be applied or followed in preference to our own cases on the issues under consideration. A brief reference to these will suffice here to reinforce the principles enunciated in Mataio. In the South Australian Court of Criminal Appeal case of Mario Giordano [1983] 6 A Crim R 397, it was stated that:

In the absence of exceptional circumstances bail pending appeal should not be granted to a person convicted of an indictable offence.

26. The court then went on to add (at page 398):

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 offence unless the circumstances are exceptional.

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 bearing 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.

27. In the Australian case of Alice Lynne Chamberlain [1982] FCA 235; [1982] 6 A Crim R 385, a single-judge Federal Court, considering bail following conviction and sentence pending appeal said:

As a general principle bail is not granted pending the hearing of an appeal against conviction and sentence of imprisonment unless exceptional circumstances exist. What constitutes exceptional circumstances depends upon the facts of each case.

28. As well as urging the court to take into account the taking away (from her) of her infant daughter (to whom she had given birth in prison), her counsel contended that her conviction and sentence had "every prospect of the verdict being set aside and this was sufficient reason for granting bail". The court, in completely rejecting the contention, said:

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. (underlining ours)

29. Several English cases on the subject were referred to and discussed in Mataio. These consistently restated the principle that "it is in exceptional cases that bail is allowed by this Court", the court being the Court of Criminal Appeal. And in relation to the purported prospect of success, one such English case, R v Edgar Gordon (1912) 7 Cr A R 182 held that:

The Court will not, as a general rule, grant bail to a prisoner pending appeal.

30. Justice Darling in that case, finding no sufficient reason, wondered "why the unusual course should be taken of granting bail to a convicted prisoner" (ibid, page 183; underlining ours).

31. Until the full Supreme Court's decision in Mataio, no previous Supreme Court had fully considered whether or not prospect of success on the pending appeal constituted exceptional circumstances for grant of bail. It is not without consequence to note that the earlier single-judge decisions in Rolf Schubert, Arthur Smedley and John Jaminan rejected "prospect" or "reasonable probability" of success on appeal as constituting exceptional circumstances. Similarly, in the more recent single-judge decisions of Bola Renagi & Ors v The State (2000) SC649 and Aaron Puli v The State (2004) N2515. We respectfully reproduce hereunder what Amet CJ said in Bola Renagi & Ors:

I adopt and apply these principles to this application. I to 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 (sic) of appeal, it would be wrong for me to do so in the absence of full argument.

32. In this application, we have finally been urged to follow (by its very inclusion in the 'List of Authorities' handed up to us), a National Court decision of Toliken AJ in Taio Mino v The State (2012) N5180 considering bail after conviction and sentence in the District Court. It was held there that what constituted exceptional circumstances was the "real likelihood of the appeal succeeding". This conclusion was reached despite the sole case citation of the Jaminan case. The Supreme Court's decision in Mataio unfortunately did not get a mention.

The doctrine of stare decisis (the doctrine of precedent)

33. It has to be noted here that nowhere in the present application is this court invited to either follow the principles set down in Mataio, nor to depart from those and overrule that case. This can only be because the authority of Mataio is not acknowledged, in preference to single-judge decisions and Australian judgments, extracts from which have been selectively cited. Additionally, it must be stated, this PNG authority is ignored in breach of the doctrine of stare decisis. The doctrine is not without its critics, but its operation does guarantee certainty and consistency in judicial decision-making. The doctrine is expressly recognised in Schedule 2.8 of the Constitution; and its practical application is explained in Schedule 2.9 of the Constitution. These provisions state:

Sch 2.8 Effect of Part 5.

(1) Nothing in this Part affects or is intended to affect, except to the extent specifically set out in this Part—

(a) the legal doctrine of judicial precedent (also known as stare decisis); or

(b) the principles of judicial comity; or

(c) the rules of private international law (also known as conflict of laws); or

(d) the legal doctrine known as res judicata,

or the further development and adoption of those doctrines, principles and rules in accordance with Part 3 of this Schedule (development of an underlying law for Papua New Guinea).

(2) Except as provided by or under an Act of the Parliament, this Part does not apply to or in respect of village courts.

Sch 2.9 Subordination of courts.

(1) All decisions of law by the Supreme Court are binding on all other courts, but not on itself.

(2) Subject to Section Sch 2.10 (conflict of precedents), all decisions of law by the National Court are binding on all other courts (other than the Supreme Court), but not on itself (except insofar as a decision of the National Court constituted by more Judges than one is of greater authority than a decision of the Court constituted by a lesser number).

(3) Subject to this Part, all decisions of law by a court other than the Supreme Court or the National Court are binding on all lower courts.

(4) In Subsection (3), "lower court", in relation to a matter before a court, means a court to which proceedings by way of appeal or review (whether by leave or as of right) lie from the first-mentioned court in relation to the matter.

34. It has repeatedly been held that this Court should not overrule itself unless parties have been allowed to make full arguments on the point and the Court has had an opportunity to consider those arguments. Though the Supreme Court is not bound by its previous decisions it should only overrule them with great caution, in a clear case, following full argument and preferably when the Court is comprised of a greater number of Judges than in the earlier case and perhaps when the Chief Justice is presiding (Public Prosecutor v John Aia [1978] PNGLR 224; MVIT v Reading [1988-89] PNGLR 610; Derbyshire v Tongia [1984] PNGLR 148; SCR No 2 of 1992 [1992] PNGLR 336; Re Upai Kunangel Amin [1991] PNGLR 1; Zanepa v Kaivovo (1999) SC623; Lionel Gawi v The State (2006) SC850). With respect, these important practical aspects of the doctrine of stare decisis have unfortunately been overlooked in learned counsel's submissions on behalf of the applicant.

Responsibility for dealing with threats to applicant's security

35. The Correctional Service Act 1995 codifies the law on the establishment and operation of the Service, and provides for its functions and powers, as well as the functions and powers of its members, commencing with that of the Commissioner of the Correctional Service. By definition, 'members' are the correctional officers in the employ of the Service. In a hierarchical system of administration, the Commissioner as head of the Service (a 'State Service' pursuant to s 188(2) Constitution), has specific duties and responsibilities under s 13 of the Act, which, under sub-s (1)(b) are:

(i) for the superintendence and efficient organization and management of the Service; and

(ii) for the proper performance by the Service of its functions; and

(iii) for the welfare and safe custody of its detainees; and

(iv) for ensuring that correctional institutions are inspected on a regular basis.

36. As well as the general duties and responsibilities of the Commissioner provided for in the preceding provision, s 14 of the Act invests the Commissioner with "Special Powers" that we consider appropriate for dealing with the incidents that the applicant relies on here:

(1) The Commissioner may at any time, for the purpose of carrying out his duties and functions under this Act -

(a) enter premises occupied by or used by the Service; and

(b) summon a person whose evidence appears to be material to the determining of any subject of inspection, inquiry or investigation conducted by the Commissioner; and

(c) take evidence on oath or affirmation and for that purpose administer oaths and affirmations; and

(d) require any person to produce documents within his possession or subject to his control.

37. The Commissioner enjoys, therefore, quasi-judicial powers to ensure the proper and responsible discharge of his statutory powers, and maintain discipline and order within the Service. Every correctional institution has a senior correctional officer-in-charge who is described as a "Commanding Officer" under s 66 of the Act. His functions are specifically provided for under s 67 of the Act, ensuring he:

(a) is responsible for the management, security and good order of the correctional institution and for the safe custody and welfare of the detainees;

(b) shall take reasonable steps to ensure that members assigned to the correctional institution know what their powers and duties are and what provision is made by or under this Act about correctional institutions and detainees; and

(c) shall give all necessary directions to ensure that correctional officers and other members comply with the provisions of this Act; and

(d) has such other functions as are prescribed.

38. Under Part VIII of the Act (ss 71 to 115) elaborate provisions are made in respect of security and control of correctional institutions. Immediately pertinent to the claims and concerns of the applicant which have been advanced here as justifying grant of bail are the "Visits" to these institutions by certain authorities (apart from relatives and friends who can and should report to outside authorities): Judges and Magistrates (s 73); Member (or an officer) of the Ombudsman Commission (s 74); Lawyers (s 75); and, a Person authorized by the Minister or Commissioner (s 76). In relation to the health and welfare of detainees, provisions exist for conduct of medical examinations and tests: see ss 88 to 91 (inclusive). Under s 96 of the Act (Power to Transfer Detainees):

The Commissioner may, by instrument in the prescribed form, authorize the transfer of a detainee or of a class of detainees -

(a) from one institution to another; or

(b) from place to place within an institution.

39. Informal mechanisms and external supervision for dealing with the incidents that the applicant relies on for his application are well catered for, in our opinion, on the legislation itself by those elaborate provisions under Part VIII. The "Visits" provisions in particular provide easy access for complaints and concerns such as the ones raised by the applicant here to be taken up directly.

Human rights

40. Thus, the outcomes of those visits can quite capably provide the background and impetus for invoking s 57(1) of the Constitution which states:

A right or freedom referred to in this Division shall protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

41. Interestingly enough, s 57(2) is directly relevant to the authorities and persons enumerated under the "Visits" provision of Part VIII. It reads as follows:

For the purposes of this section –

(a) The Law Officers of Papua New Guinea; and
(b) Any other persons prescribed for the purpose by an Act of the Parliament; and
(c) Any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,

have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.

42. Sections 57(3), (4) and (5) vest jurisdiction enabling the granting of orders, declarations, and appropriate relief to enforce rights and freedoms that have been or about to be infringed. And sub-s (6) emphasises that the jurisdiction and powers of the courts under this section "are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of the Constitution".

Arrangements for appeal

43. It is submitted that the applicant needs to attend to "arrangements for his appeal", specifically accessing funds (that the wife is said to be not equipped to arrange), and recovering "a large volume of documents that are stored off site from his residence and (former) office which he is the only person with the ability to identify and recover such documents which are critical to his appeal". These, it is asserted, will in turn assist his counsel prepare for the appeal. It is noted that similar type of arguments were advanced in the Yabara case and rejected there, the Supreme Court relying on what was stated by Wilson J in the Smedley case (supra). We do likewise. And in this respect, we have to note also that the applicant himself did not advert to these matters in his sworn deposition (14 May 2014). It would, therefore, be correct to characterise counsel's submissions on these as being without evidentiary support.

44. It is a matter of record that the applicant's trial took some six actual sitting days in September 2013, during which entire period he was on bail. He would have been on bail pre-trial also after the police formally arrested and charged him. He was still on extended bail when on 22 November 2013 the National Court found him guilty of one (1) count of misappropriation contrary to s 383A(1)(a) of the Criminal Code and duly convicted him, thereby formally changing his legal status to that of 'a prisoner of the State'. When he returned to court for sentencing on 24 March 2014, he was still on extended bail.

45. Thus, from commencement of trial through to date of verdict, he was on bail. After conviction he was on extended bail also for four months before he was sentenced and ordered to be incarcerated to serve the sentence of the court. Seven months post-trial and pre-sentencing is more than ample time to organise and put in order his affairs (especially financial and family), in anticipation of possible conviction and sentence. It could not be properly said that he was in the same disadvantaged restricted situation as hundreds of remandees and prisoners who populate our regimented correctional facilities. He had easy access to his legal advisers and representatives, as well as his private business and political papers/documents.

Summing up

46. We respectfully follow Mataio's case and apply it here. It is, in our judgment, eminently good law, and reflects what has been consistently declared in the appellate courts of all Australian states, and in the Court of Criminal Appeal and the House of Lords in Great Britain. The presumption of grant (of bail) pursuant to s 42(6) of the Constitution, and, ss 3 and 6 of the Bail Act, no longer applies once an accused has been tried, convicted and sentenced to a term of imprisonment on a charge of an indictable offence. He is no longer an 'accused'. He is formally a prisoner of the State, thus subject to control and supervision in a regimented environment such as a State prison to serve the sentence of the court, according to law. One of the laws applicable here is as provided under s 42(1)(b) Constitution (liberty of the person) which reads:

No person shall be deprived of his personal liberty except ... in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself of another court or tribunal.

47. But another law, s 37 (protection of the law, Constitution), sub-s (15) provides that:

Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.

48. Section 11 of the Bail Act enables a convicted prisoner who invokes the constitutional right to appeal to apply for bail pending the hearing and determination of his appeal. And it is the law of this country that bail for such an applicant can only be granted on exceptional circumstances. He bears the onus of satisfying the court of this. What constitutes exceptional circumstances depends on the peculiar circumstances of each case. The application has to be considered on an individual case by case basis.

49. Applying the law to the circumstances of this case, it is our judgment that the instances of harassment, use of abusive and threatening language, and hurling of stones at and against the applicant by fellow inmates of the Bomana Correctional Institution do not, individually or in combination, constitute exceptional circumstances. We accept the submission of learned counsel for the State that these instances are matters within the administrative responsibility of the Commissioner for Correctional Service. And within the institution itself, as with all other correctional institutions throughout the country, the Commanders have direct duties and responsibilities under the Act, as outlined above.

50. The complaints and concerns of the applicant, which we accept, in the absence of evidence to the contrary, had, not one, but several avenues for ventilating and obtaining relief and remedies. These very issues and concerns are the very subject matters of the provisions under the Act regarding 'welfare and safe custody', 'security and control' within the statutory duties and responsibilities of both the Commissioner and Gaol Commander. Informal mechanisms or external supervision for dealing with the incidents that the applicant relies on for this application, are well taken care of in the legislation itself by the "Visits" provisions. The outcomes of these visits can quite capably (if properly utilised by a prospective appellant, or indeed any inmate) provide the background and impetus for invoking s 57 Constitution (supra). The very next provision (s 58 – Compensation) reinforces the powers of the courts in the preceding provision.

51. We are satisfied that all the administrative and formal legal avenues elaborately provided for under the Correctional Service Act and the Constitution have not yet been properly availed of and exhausted before coming to this court sitting on a bail application. We reiterate that the perceived good prospects of success of the appeal do not constitute an exceptional circumstance.

Conclusion

52. We are of the view that this application should be refused. The matters advanced in support of the application do not on their own or in combination with each other demonstrate "exceptional circumstances" as required to admit the applicant to bail. We accordingly order that:

The application is refused for the reason that exceptional circumstances for granting bail after conviction and sentence, pending the hearing of the appeal, have not been shown.
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Young & Williams Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyer for the Respondent