Yasause v Independent State of Papua New Guinea [2014] PGSC 55; SC1381 (11 September 2014)

SC1381

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP NO 17 OF 2014

BETWEEN

THEO YASAUSE
Applicant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Makail, J
2014: 05th & 11th September

PRACTICE & PROCEDURE – Bail – Application for bail – Bail after conviction and adjournment of proceedings – Jurisdiction of – Single Judge of Supreme Court to grant bail – Grounds of – Appeal pending decision by full Court – Delay by Supreme Court in delivering decision – Good prospect of success of appeal – Personal welfare and health condition – Denial of access to medical treatment – Whether exceptional circumstances exist to show detention unjustified – Bail Act, Chapter 340 – Section 12 – Supreme Court Act – Section 10 .

Cases cited:

Arthur Gilbert Smedley v. The State [1978] PNGLR 452
Denden Tom & 2 Ors v. The State (2007) SC914
Rakatani Mataio v. The State (2007) SC865
Dr. Theo Yasause v. The State (2011) SC1112
Walter Enuma & Ors v. The State (1997) SC538

Counsel:

A. Daugl, for the Applicant
F. Kuvi, for the Respondent

RULING ON BAIL

11th September, 2014

1. MAKAIL, J: This is an application for bail made pursuant to section 12 of the Bail Act, Chapter 340. On 08th February 2011, the applicant Dr. Theo Yasause was charged with wilful murder under section 299 of the Criminal Code. After a trial, on 28th September 2012, he was found guilty, convicted of a lesser charge of murder under section 300 of the Criminal Code and on 29th November 2012, sentenced to 30 years imprisonment.

2. On 22nd October 2012, he filed an appeal against his conviction to the Supreme Court and made an application to be admitted to bail. The application was not listed for hearing and the court file went missing. He filed another application for bail during the hearing of the appeal and it is still pending as no date has been fixed for hearing. On 18th December 2013, the Supreme Court comprising of Sakora, David and Kassman, JJ heard the appeal and adjourned to February 2014 for decision. Since then, the decision has been pending.

3. Section 12 of the Bail Act, Chapter 340 states:

"12. Bail during hearing of appeal

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

4. According to section 10 of the Supreme Court Act, the powers that may be exercised by a Judge of the Supreme Court include the power to admit a person to bail. It states:

"10. Powers that may be exercised by Judge.

(1) Any power of the Supreme Court under this or any other Act —

(a) to give leave to appeal; or

(b) to extend the time within which notice of appeal or of an application for leave to appeal may be given; or

(c) to admit an appellant to bail,

may be exercised by a Judge in the same manner as it may be exercised by the Court.

(2) Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court."

5. Given that section 10 (c) of the Supreme Court Act states that "any power of the Supreme Court under this or any other Act may be exercised by a Judge in the same manner as it may be exercised by the Court" and that section 12 of the Bail Act, Chapter 340 states that where the Supreme Court "hearing an appeal adjourns proceedings, it may, in its discretion, grant bail to the appellant on application by or on behalf of the appellant," I am satisfied that a single judge of the Supreme Court has jurisdiction to admit an applicant to bail pending the hearing and/or decision of the Supreme Court.

6. The question is, has the applicant established a case to be admitted to bail? Case authorities such as Arthur Gilbert Smedley v. The State [1978] PNGLR 452, Denden Tom & 2 Ors v. The State (2007) SC914 and Rakatani Mataio v. The State (2007) SC865 state that an applicant for bail after convict must show exceptional circumstances exists to be admitted to bail.

7. Even after refusal of bail by the National Court and prior to conviction, an applicant applying for bail to the Supreme Court must show exceptional circumstances exist to be admitted to bail. This was held in the applicant's second bail application after the National Court constituted by Kariko, J refused bail: see Dr. Theo Yasause v. The State (2011) SC1112.

8. As to what constitute exceptional circumstances, Supreme Court case authorities such as Walter Enuma & Ors v. The State (1997) SC538 and Denden Tom & Ors (supra) held that it depends very much on the circumstance of a particular case. It must be determined from all the circumstances of a particular case. Counsel for each party did not take issue with these principles. I adopt them here.

9. According to his affidavit filed in support of the application on 30th July 2014, the applicant gave four main reasons for applying for bail. First, the adjournment of the appeal and outstanding decision by the Supreme Court, secondly, good prospect of success of appeal, thirdly, abuse of human rights and dignity and fourthly, personal welfare and deteriorating medical condition.

10. The State opposed bail. It submitted that as the applicant has been convicted of a serious offence of murder, the right to the presumption of innocence has been removed and the applicant is a prisoner of the State. Unless exceptional circumstances exist, admission to bail is not automatic. It further submitted that the grounds advanced by the applicant do not show that exceptional circumstances exist for the applicant to be admitted to bail.

11. The submission by the State that the applicant has been convicted of a serious offence, thus the right to the presumption of innocence no longer exists is a significant point because firstly, the applicant is now a prisoner of the State and secondly, any rights that he has enjoyed before being convicted such as right to bail under section 9 of the Bail Act and section 42 (6) of the Constitution no longer apply. Simply put, it is very difficult for an applicant who has been convicted of a crime to be granted bail and that, the applicant must appreciate. So, if he wants bail, he must show that there is something extraordinary or unique about his detention that would justify his release.

12. The fact that the applicant has filed an appeal, that it was heard by the full Court and that the decision is pending does not, in my respectful opinion, make a case exceptional. Neither the delay by the Supreme Court in delivering its decision makes it an exceptional case. Neither counsel has cited a case authority that supports the proposition that it is an exceptional circumstance if it can be established that an appeal against conviction has been heard and decision has been outstanding for a long time, and bail was granted. This ground is dismissed.

13. In a number of decisions, some of which I have cited, the Supreme Court has made it clear that prospect of success of an appeal is not an exceptional circumstance and cannot be used to support an application for bail: see Rakatani Mataio (supra), Denden Tom & 2 Ors (supra) and Dr. Theo Yasause (supra). It follows the applicant's submission that the appeal is likely to succeed because of uncorroborated evidence by sole State witness and inconsistencies in the oral evidence and statement by the sole State witness does not amount to an exceptional circumstance.

14. Indeed if the Court were to consider the prospect of success of the appeal, it would be tantamount to determining the appeal and it would not only be an abuse of process but dangerous because it is not the function of this Court to venture into such matter but the full Court. That said, parties should be reminded that the full Court has heard the appeal, has reserved its decision on the issues raised by the applicant and only that Court will decide the fate of the applicant. This ground is also dismissed.

15. As to the ground on abuse of human rights and dignity, while not condoning or approving such abuses by members of the Correctional Service, if they exist, as I consider it not necessary to make any finding to that effect, with respect, I consider that it is a matter that the Human Rights Track of the National Court, is the appropriate Court to investigate and make appropriate orders. This ground is also dismissed.

16. As to the final ground, what makes this case exceptional from others that the applicant should be granted bail in order to seek medical treatment? The applicant's personal welfare, particularly his claim of deteriorating and life threatening medical conditions regarding his eye sight, need for a replacement eye glass, contracting of tuberculosis (TB) and pancreatitis disease due to poor and unhygienic living conditions at the prison living compound are, in my respectful opinion, not in themselves exceptional grounds. This is a common ground used by applicants for bail. In my view, this is not exceptional. It must be established that access to appropriate or specialist medical treatment has been either denied or unavailable.

17. The applicant said that he has been denied access to medical facilities in Port Moresby for treatment by the Correctional Service. This was a result of directions from the late Commissioner Mr Martin Balthazar in July 2013. But the late Commissioner has since died and there is no evidence of recent events or incidents where he has been denied access to medical treatment by the current Commissioner. Given this, I am not satisfied that the applicant has been denied access to appropriate or specialist medical treatment which would make his continued detention unjustified and that he be admitted to bail.

18. The end result, I am not satisfied that exceptional circumstances exist to show that the applicant's detention is unjustified. Bail is refused and the proceeding is dismissed accordingly.

Ruling and orders accordingly.
________________________________________________________________
Napu & Co Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent