Potape v Independent State of Papua New Guinea [2015] PGSC 43; SC1419 (13 March 2015)

SC1419

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP. NO. 02 0F 2015

BETWEEN:

FRANCIS POTAPE
Applicant

AND:

THE INDEPENDENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Manuhu, David, Sawong, JJ
2015: 9 & 13 March

CRIMINAL LAW – Bail – Pending appeal – Member of Parliament – Exceptional circumstance – Good prospect of success of appeal – Medical condition – Parliamentary duties – Delay in hearing of appeal.

Cases cited:
Dendem Tom v The State [2007] SC 914,
Enuma & Ors v The State [1997] SC 538, Havilla Kavo v The State (2014), SCA No. 33 of 2014, Unreported & Unnumbered Judgment of Injia, CJ delivered at Waigani on 23rd December 2014,
Jaminen v The State [1983] PNGLR 122,
Mataio v The State [2004] SC 865,
Paul Jerol Aisi v Malcolm Bai (1976) N. No. 52
Smedley v State [1978] PNGLR 452, The State v Yabara (No. 1) [1984] PNGLR 133,

Counsel:

P. Ame, for the Applicant
R. Auka, for the Respondent

13th March, 2015

1. BY THE COURT: This is an application for bail pending appeal against conviction and sentence. The Applicant, a Member of Parliament and the Open Member for Komo Magarima Open Electorate in Hela Province, on 16th October 2014, was convicted of one count of conspiracy to defraud and two counts of misappropriation. He was sentenced on 16th January 2015 effectively to five years with a partial suspension of two and a half years.

2. The Applicant filed an appeal against his conviction on 31st October 2014 and applied for bail pending appeal on 6th February 2015. The application was heard by Hartshorn, J, a single Judge of the Supreme Court, on 12th February 2015 which application was dismissed on 13th February 2015. The Applicant invoked the jurisdiction of this Court under section 10 (2) of the Supreme Court Act in conjunction with Order 11 Rule 27 of the Supreme Court Rules. These provisions permit an application for bail which is refused by a single Judge of the Supreme Court to be heard by the Supreme Court. Order 11 Rule 27 of the Supreme Court Rules provides, inter alia, that a written request to move the application refused by a single judge of the Supreme Court before the Supreme Court must be served on the Registrar within fourteen days of the order refusing relief. The Applicant gave his written request to the Registrar on 18th February 2015.

3. The principles on grant or refusal of bail after conviction are settled. Grant or refusal of bail is discretionary but such discretion is exercised only on exceptional circumstances: Enuma & Ors v The State [1997] SC 538, Smedley v State [1978] PNGLR 452, Jaminen v The State [1983] PNGLR 122, The State v Yabara (No. 1) [1984] PNGLR 133, Mataio v The State [2004] SC 865, and Dendem Tom v The State [2007] SC 914.

4. The Applicant, in support of his bail application pleaded firstly that there is a strong prospect of success of his appeal. In the written submissions, the Applicant submitted that the trial Judge erred in law to find the Applicant guilty of conspiracy because the other two suspects were not charged and did not give evidence. Therefore there was no evidence of conspiracy. No case authority was cited to support this argument. The Applicant also made references to payment vouchers and minutes of meetings to demonstrate that the Applicant did not have a dishonest intention. The Applicant also took issue with the admission of the record of interview into evidence and argued that by wrongly admitting the record of interview, a grave miscarriage of justice was done to the Applicant.

5. We are of the view that what the Applicant submits is for this Court to consider and delve into the merits of the grounds of appeal. The principles that emerge from numerous Full Court decisions establish that it would be wrong at this stage to express an opinion on the appellant's prospect of success in his appeal. There is no certainty of a success or failure. See Rakatani Mataio v The State (2007); Denden Tom v The State (2007) SC914; Paul Tienstein v The State (2014) SC 1343.

6. We have been referred to the decision of Injia, CJ in the case of Havilla Kavo v The State (2014), SCAPP No. 33 of 2014, Unreported & Unnumbered Judgment of Injia, CJ delivered at Waigani on 23rd December 2014, where the learned Chief Justice made the following observations:

"Fraudulent intent on the part of an offender charged and tried with 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 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... I accept Mr. Molloy's arguments on this point. There is the finding that the trial judge made that though the applicant "was entitled to such sum, but took it from the "wrong basket" and other such findings follow but fails 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 vital point."

7. With respect, an appearance of an apparent error in the nature of a failure to make a definitive finding that certain acts or omission were in fact dishonest or done with fraudulent intent to defraud does not satisfy the test for grant of bail after conviction.

8. In the circumstances, the first ground of the application is without merit and is dismissed.

9. The Applicant pleaded medical condition as his second ground.

10. The Applicant was seen by Dr. Yockopun on 20th November 2014. It was concluded that the Applicant suffers from hypertension and angina pectors (stable type), and recommended treatment abroad. The Applicant was seen again by Dr. Yockopun on 14th December 2014 and received treatment for chest pain. The Applicant then travelled to Manila on 16th December 2014 where he was examined and treated. It was recommended that he return to Manila for further medical examination in relation to his heart and spine. He was however jailed on 16th January 2015 and is unable to return to Manila.

11. The Applicant, as a prisoner, has been examined by Dr. Jack Amana. Dr. Amana deposed that the Applicant is suffering from "hypertension, hyperchloresteremia and obesity which are all very good recipe for coronary event (heart attack). In order to avoid a heart attack, the Applicant has to do regular exercise, he should control his diet, and he should avoid salt. The Applicant, it was recommended, should reside at a place where he would have easy access to a cardiologist and he is required to be monitored on three monthly basis.

12. Welfare of a detainee or prisoner, by virtue of sections 7, 13 and 67 of the Correctional Service Act 1995 is a matter for the correctional institution and the goal commander to attend to. A prisoner may resort to appropriate legal processes to enforce his rights in prison in the event of denial of such a right. Bail is not a process for enforcement of rights and should not be used as such.

13. The Applicant's second ground is therefore without merit and is dismissed.

14. The Applicant further pleaded that he has to be granted bail to attend to his parliamentary duties. The Applicant relies on section 103 (4) of the Constitution which effectively stays disqualification (see section 103 (3) (c) of the Constitution) of a person as a Member of Parliament who has been sentenced to a period exceeding nine months if he has appealed against his conviction or sentence.

15. This provision does not state that such a person should be granted bail. Neither does section 11 of the Bail Act give such privilege to a Member of Parliament. It is in the public interest to have a convicted person serve his sentence. It is not in the public interest to have convicted person out on bail. It is for this reason that the test is very high. It is also not in the public interest to have a convicted person who has been sentenced to more than nine months to continue to occupy a public office and potentially bring the public office into disrepute.

16. We are of the view therefore that the Applicant's position as a Member of Parliament which is preserved by appealing does not amount to an exceptional circumstance: Jaminen v The State. This ground is also dismissed.

17. The final ground of the application is the likely delay in the hearing of his appeal. It was submitted that by the time the appeal is heard, the Applicant would have served a substantial part of his sentence. Minus the suspension, the prisoner has been sentenced to two and a half years. He has been in prison since 16th January 2015. He has about 28 months still to serve. Whether he is given remission is at the discretion of the correctional administration.

18. In the case of Paul Jerol Aisi v Malcolm Bai (1976) N. No. 52, it was held that where an application is made for bail pending appeal against a short sentence, bail will generally not be granted if the appeal can be speedily heard: See Criminal Law and Practice of Papua New Guinea, Andrew, Charmers, Weisbrot (1979) The Law Book Company, 385.

19. In this case, the hearing of his appeal depends on the Applicant's preparation of his appeal. It has taken one month for the Applicant to bring this application before a single Judge and one month to bring this application before us. If the Applicant had utilised the last two months preparing his appeal, which he could have done simultaneously with this application, the appeal would be ready for hearing by this time. It may take another two to three months for his appeal to be ready. How soon the appeal is heard is very much within the Applicant's power and control.

20. In the circumstances, the Applicant has failed to persuade us that the likely delay is an exceptional circumstance. This ground is also dismissed.
21. We have dismissed all the four grounds. We have to dismiss the application and we do so.

________________________________________________________________
Ame Lawyers: Lawyer for the Applicant
Pondros Kaluwin, Public Prosecutor: Lawyer for the Respondent