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Kavo v State [2014] PGSC 76; SC1571 (23 December 2014)

SC1571

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SC APP 23 of 2014


BETWEEN:


HAVILA KAVO
Applicant


AND:


THE STATE
Respondent


Waigani: Injia, CJ
2014: 22nd & 23rd December


SUPREME COURT – Bail application pending appeal – Appeal against conviction and sentence for misappropriation offence - Exercise of discretion – Exceptional circumstances – Grounds - Multiple grounds - Performance of duties of public office held by applicant, Prospect of success of appeal & Delay in hearing and determination of appeal - Principles – Totality of factors to be considered – Interest of justice to be considered - Bail granted
Cases cited
Denden Tom v The State (2007) SC914,

John Jaminan v The State [1983] PNGLR 122
Rakatani Mataio v The State (2007) SC865
Paul Teinstein v The State (2014) SC1343
State v. Heisi Tau (1999) N1937
SCAPP No. 20 of 2014, Nombri v Kadai, Unpublished Supreme Court Judgment dated 10th, 15th October 2014


Counsel:


I Molloy & S Ketan, for the Applicant
D Kuvi; for the Respondent


23rd December, 2014

  1. INJIA CJ: This is an application for bail pending an appeal against conviction and punishment for the offence of misappropriation contrary to s 383 A (1) (a) of the Criminal Code. The applicant was sentenced to 3 years imprisonment of which 18 months was suspended and was ordered to serve 18 months. It is made under s 10 (1) (c) of the Supreme Court Act. The State contests the application.

The Law


  1. The right to bail is protected by the Constitution and it is available to persons charged, tried, convicted and punished for an offence in Papua New Guinea. A person charged and tried for a criminal offence has a right to be granted bail: Constitution, s 46 (2). The right to bail is lost when a person is convicted and sentenced to imprisonment. The onus is on applicant to show exceptional circumstances exist to justify bail. The standard of persuasion is indeed a high one. Where particular circumstances are relied up, it must be shown that there exists exceptional circumstance or circumstances of an “extra - ordinary” nature. As to what factors constitute exceptional circumstances depends on the circumstances of each case.
  2. In this case, the applicant relies on three grounds, which if taken severally or jointly, constitute exceptional circumstances and those are as follows:-

  1. All these three factors are amongst many relevant factors that are to be taken into account in determining a bail application following conviction for a criminal offence and pending appeal.

Multiple factors constituting exceptional circumstances – the correct approach


  1. In a case where multiple factors fall to be considered s to whether they constitute exceptional circumstances, the "totality" approach that advocated by the full Courts in Rakatani Mataio v The State (2007) SC865, and followed in Denden Tom v The State (2007) SC914, and recently followed in Paul Tiensten v The State (2014) SC1343, is the correct approach.

Performance of duties of public office held by the applicant


  1. With regard to the first factor, the applicant is the Governor of the Gulf Province. I accept the thrust of Mr Kuvi’s submission that the importance of the public office that the applicant holds is not a valid reason for a convicted felon to be released on bail. The principle was first enunciated in John Jaminan v The State [1983] PNGLR 122 and that has been followed in numerous subsequent cases. However, the pressing importance of any public duties to be performed by a person occupying public elective office, in the interim period pending the outcome of the appeal, is permitted by the operation of s103 (3) of the Constitution. Although it is a relevant consideration which I take into account in this case, its weight is reduced by the very fact that the subject matter of the criminal offence for which he is convicted concerns abuse of a position of trust.

Prospect of success of appeal


  1. With regard to the second point, it is always difficult for the Court to assess the prospect of success of an appeal from a glance at the judgment on conviction and or sentence or from the grounds of appeal howsoever precise or meticulously pleaded they may be. At the bail stage, it is not for this Court to discuss the merits of the appeal in any detail and reach a conclusive view as to the merits of the appeal. However, the Court can for the purpose of determining the exceptional nature of the appeal, peruse the judgment and Court records and if found to contain errors that may be apparent on the face of the record from which the Court may form a tentative view as to the likely success or failure of the pending appeal. Fraudulent intent on the part of the offender charged and tried for the offence of misappropriation is an essential element of the offence of misappropriation and a particular and clear finding of fact on the evidence is essential to support a conviction. Mr Molloy argues that there appears to be an apparent error on the face of the record of the judgment on verdict, where there is no definitive and conclusive finding of fact that the applicant acted dishonestly or had a fraudulent intent in applying to his own use the sum of K131,338, the property of the State. Mr Kuvi did little in his submissions to rebut Mr Molloy’s arguments. I accept Mr Molloy’s arguments on this point. There is that finding that the trial judge made that the applicant “was entitled to such sum, but took it from the wrong basket” and there are other such similar findings made in favor of the applicant that follow, but these fall short of any definitive finding that such of his actions were in fact dishonest or done with fraudulent intent to defraud the State of its property. I find that the applicant has a good prospect of success on this point.

Delay in the hearing and determination of appeal - Interest of justice


  1. With regard to the third factor, I prefer to consider the arguments raised by the applicant in the context of the interest of justice. On the one hand, the applicant has been found guilty and convicted by a CTourt of law and he is compelled by law to serve his term. On the other hand, the prosecution of his appeal will no doubt take time owing to various reasons including preparation of the Appeal Books upon production of the transcript of proceedings by the Court Recording Services. His appeal could be ready for hearing in March or April of 2015, by which time he would have served one third of his term. These are competing interests of equal strength that the “interest of justice” should reign in to decide where the line should be drawn.
  2. I prefer to adopt a statement made by Sakora J in State v. Heisi Tau (1999) N1937 where his honour said:

“In my opinion, the inclusion of those exceptions (to the availing of the right or entitlement) was a deliberate legislative act to ensure that interests of justice is accorded due recognition and consideration, and, where appropriate, held to prevail over the individual rights and interests of the accused person. This would suggest that the criminal laws of the country are to be enforced without exception, and equally, and that those who have (or are alleged to have) offended against society or community’s laws and rules are made to realize that they have forfeited their right to live and move around freely.”


  1. In a recent decision of mine in SCAPP No. 20 of 2014, Nombri v Kadai, Unpublished Supreme Court Judgment dated 10th, 15th October 2014, I made some observations with regard to consideration of bail in a contempt matter which I consider to be pertinent to the "interest of justice" and applicable to the case before me. I said:

“...although grant of bail pending appeal is not to be regarded as an exercise in leniency, bail is considered less strenuous than imprisonment. The fact that the grant of bail will result in halting the enforcement of the order for imprisonment that is lawfully imposed on the applicant from taking its normal course, is reason enough for a Court or a Judge deciding a bail application to give serious consideration to whether such an applicant should be allowed out on bail pending his appeal. For the grant of bail as a matter of course or almost willy nilly for all manner of reasons is sure to produce seemingly conflicting responses from other court users and the public as to whether the Courts are serious about the orders they issue and whether court orders are meant to be strictly obeyed. As a result, the Court’s authority to punish offenders for contempt and public confidence and respect in the administration of justice is weakened or diminished...


...The interest of justice is not best served by escaping punishment; the answer lies in expediting the appeal so that waiting time in jail is cut short. Under present judicial case management system and practices in place, provided appeal documentation is prepared in short time, a special fixture for the hearing of the appeal can be allocated by the Supreme Court Listings Judge and the appeal heard and determined with due expediency. The answer to the question “what is the interest of justice at stake here” lies in expediting preparation, hearing and determination of the appeal in the quickest possible time."


Totality of circumstances, Conclusion and Decision


  1. Having made those observations and findings, it is time now to balance these. In balancing the findings I have made with regard to the three factors relied upon by the applicant and argued before me, the Court needs to apply those observations against other relevant factors that I have found to exist which favour the applicant and balance those against factors which turn against the applicant, and arrive at a conclusion that reflects the totality of those matters.
  2. As part of this balancing act, I should first distinguish the present case from the facts of four other cases relied upon by the parties to support their respective positions. In the John Jaminan case, the applicant was a member of Parliament, was convicted and sentenced for rape of a young girl. In the Rakatani Mataio case, a District Court magistrate was convicted for official corruption or bribery. In the Tom Denden v The State case, the offender was convicted of murder. In Paul Tiensten, a Minister of the State, he was convicted of misappropriating substantial amount of money in the millions of Kina. The applicant in this case is an elected Governor of a province, a position similar to Jamina and Tiensten, however the other facts of those cases do not resemble the facts of the present case in terms of their gravity.
  3. In summary, notwithstanding the observations and findings I have made that favour the respondent in relation to the first and third factors, I consider that my findings on the second factor (that is, the prospects of success of the appeal) when taken together with the aspects of the other two factors that favor the applicant; and the distinguishing features of this case on the facts from the other four cases decided by the full Court that I have mentioned; the aggregate totality of these factors do constitute exceptional circumstances to warrant bail. The interest of justice in terms of the incarceration of a convicted felon in circumstances where he has a high chance of success in his appeal against conviction is the dominant consideration in the circumstances of this particular case, and that factor militates in favour of grant of bail.
  4. For the foregoing reason, I grant the application.
  5. A copy of this my ruling will be attached to the Certificate of Bail which I will issue after settling with the parties the conditions of bail.
  6. I will now hear parties on the conditions of bail.

Conditions of bail


  1. (After hearing parties on the conditions of bail), Bail is granted on the following conditions:

________________________________________________________________


Simon Ketan Lawyers : Lawyer for the Appellants/Applicants

Pondros Kaluwin, Public Prosecutor : Lawyer for the Respondent

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