Potape v Independent State of Papua New Guinea [2015] PGSC 8; SC1341 (13 February 2015)

SC1341

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP 2 of 2015

IN THE MATTER of an Application for Bail pursuant to Section 11of the Bail Act and Section 10 (1) (c) of the Supreme Court Act

BETWEEN:

FRANCIS POTAPE
Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Hartshorn, J.
2015: February 12th and 13th

Application for Bail after conviction pending appeal

Cases cited:
Papua New Guinea cases

John Jaminen v. The State [1983] PNGLR 123
Bola Renagi and Ors v. The State (2000) SC649
Jacob Wama v The State (2003) N2356
Rakatani Mataio v. State 2007 SC865
Denden Tom v. State (2007) SC914
Paul Tiensten v. State (2014) SC1343
Havila Kavo v. State (2014) Unreported SCAPP 23/14, Injia CJ, delivered 23/12/14 at Waigani

Overseas cases

Chamberlain v. R [1982] FCA 235

Counsel:

Mr. I. R. Molloy and Mr. J. Haiara, for the Appellant
Mr. R. Auka, for the Respondent

13th February, 2015
1. HARTSHORN, J: The appellant was convicted of two counts of misappropriation and one count of conspiracy to defraud. He was sentenced to a total of five years imprisonment, two and a half years of which was suspended. He now applies for bail pending his appeal against conviction.

2. This matter came before me as a single judge of the Supreme Court pursuant to s. 10 (1) (c) Supreme Court Act and s. 11 (c) Bail Act. The application for bail is opposed by the State.

3. There is no right to bail after conviction, s. 42 (6) Constitution, and a court must be very vigilant and cautious in its consideration of such applications.

4. The power to grant bail is discretionary. The principles governing bail pending an appeal are that the applicant must show exceptional or extraordinary circumstances for bail to be allowed and such circumstances are to be determined from the whole of the case. There are numerous decisions on this point. They include Rakatani Mataio v. State (2007) SC865; Denden Tom v. State (2007) SC914 and Havila Kavo v. State (2014) Unreported SCAPP 23/14, Injia CJ, delivered 23/12/14 at Waigani.

5. The appellant submits that whether exceptional circumstances exist depends on the whole of the circumstances of the particular case. The prospect of success is a circumstance that may be considered together with any other relevant circumstances. He relies upon Mataio (supra); Denden Tom (supra) and Kavo (supra).

6. The appellant submits that the following facts and matters together constitute exceptional circumstances:

a) The appeal against conviction has good prospects of success;

b) The appellant is an elected Member of Parliament and has constitutional and other responsibilities to perform;

c) The appellant has health problems which could worsen whilst he is imprisoned, and it would be unfair to expose him to that risk whilst an appeal is pending;

d) The appellant will serve a substantial proportion of his sentence before his appeal is heard and determined.

Good prospects of success of appeal
7. The appellant submits that his appeal against conviction has good prospects of success. This is because amongst others the National Court judgment does not contain a necessary definitive finding that he intended to act fraudulently or dishonestly. Further, the finding of the trial judge that the manner in which reimbursements were sought and paid was improper falls short of the necessary finding of fraud and that the findings that the appellant "ought to have known", fall short of a necessary definitive finding of dishonesty.

8. Counsel for the State submitted that the trial judge had considered the points that have been raised by the appellant and had made his findings. In any event, it is submitted that the prospects of success of an appeal is not an exceptional circumstance. Reliance is placed upon the cases of Mataio (supra); Denden Tom (supra) and Paul Tiensten v. State (2014) SC1343.

9. As I understand it, the appellant is not submitting that his prospects of success on the appeal constitute an exceptional circumstance. He is merely submitting that his prospects of success are a circumstance that may be considered.

10. As to the appellant's prospects of success on his appeal, I note the approach taken and the comments made by the Chief Justice in Kavo's case (supra) in respect of the consideration to be given by the court to this factor

11. I say however with respect, that in my opinion it is not for me to form a view as to the appellant's prospects of success on his appeal. I am fortified in my opinion by the comments of the Court in Mataio (supra). In that case the Court agreed with the approach taken in Chamberlain v. R [1982] FCA 235 in which Lockhart J. dissenting said at para 5:

"It is undesirable........ for this Court to form a view at this stage on the appellant's prospects of success in her appeal. All I will say is that there is no certainty of a success or of failure. Some points appear to be fairly arguable."

12. Further, in Bola Renagi and Ors v. The State (2000) SC649, Amet CJ (as he then was) said:

"I am also of the opinion that it is not for me to make up my mind at this point about the chances of appeal, it would be wrong for me to do so in the absence of full argument. The appeal is not going to be an easy one. As Dep. C.J. Raine also remarked, "indeed, it might be that I sit on the appeal myself", and so it would be most inappropriate to express an opinion as to the likely merits of the appeal."

13. I will proceed on the basis that as to the appeal against conviction having good prospects of success, some points appear arguable.

Member of Parliament
14. The appellant submits that he is an elected Member of Parliament. He has important duties to perform in his representative capacity where his personal skill, experience and authority are required. His constituents and the wider community will be disadvantaged if he is not able to perform these duties.

15. In addition, the appellant submits, under s. 103 (3) Constitution, a person is not qualified to remain a Member of Parliament, if he is under sentence of imprisonment for a period of more than nine months. However, it is relevant that s. 103 (4) Constitution provides that the operation of sub-section (3) is suspended until an appeal is determined. It is submitted that permitting a Member of Parliament to perform his representative and other duties pending an appeal would be consistent with the intent of s. 103 (4) Constitution.

16. As to other persons being disadvantaged because of the appellant's imprisonment, it is not an uncommon occurrence when someone is imprisoned that others will be disadvantaged as a consequence. Such disadvantage caused can be seen to flow "as a natural consequence of the conviction because of the particular status of the convicted person." as was noted by Pratt J in John Jaminen v. The State [1983] PNGLR 123. His Honour went on to state that such a matter could not be considered in determining whether exceptional circumstances existed. On its own, this factor is not an exceptional circumstance and it is not peculiar to the appellant.

17. As to the s. 103 (4) argument, if it was accepted, in my view it would be placing a Member of Parliament in a more favourable position in regard to bail after conviction than other persons who have been convicted and are appealing their conviction who are not Members of Parliament. I doubt whether that was the intention behind s. 103 (4). I agree with Pratt J in John Jaminen v. The State (supra) that the intention behind s. 103(4) Constitution was more likely to avoid having to hold a by-election that could prove to be unnecessary rather than permitting a Member of Parliament to perform his duties after conviction and pending his appeal.

18. For the above reasons I am not satisfied that by virtue of the appellant being a Member of Parliament that this is a particular circumstance in favour of him being granted bail.

Medical condition
19. The applicant deposes that he suffers from Hypertension, Angina Pectoris, Dyslipidaemia, which is High Cholesterol, and chronic lumbo. He further deposes that a Dr. Yockopua concludes that the appellant requires constant medication, physiotherapy, cardiology reviews and a coronary angiogram, angioplasty or stenting. Further, notwithstanding that the trial judge took into account the appellant's medical condition when considering and passing sentence, this court should consider two other distinguishing factors. These are that this court should have greater regard to the adverse contingencies of incarceration having regard to the fact that the conviction may be quashed and secondly the trial judge did not have the benefit of the affidavit of Dr. Jack Amana, a cardiologist.

20. Dr. Amana deposes amongst others that it is too risky to keep a coronary risk patient such as the appellant at Bomana CIS. The appellant needs to reside where there is easy access to a cardiologist where he can attend for urgent treatment in the event of a surprise sudden coronary attack.

21. The State submits that the appellant's medical evidence is insufficient and lacks weight to establish an exceptional circumstance. The appellant's medical condition was recently revealed by Dr. Amana on 5th February 2015 it is submitted. The report states that the appellant has hypertension, hypercholestremia and obesity which are all very good indicators of a coronary event. However, the doctor also states that the appellant needs to do regular exercise every day, that his diet should be cholesterol free with vegetables and white meat and that he is not to take salt. Further, the doctor states that the appellant is required to be monitored every three months for his weight and cholesterol control. It is submitted that the medical report does not show a serious deteriorating condition of the appellant's heart and as such detention in hard labour will not have a deleterious effect upon his health.

22. It is submitted that gaols normally provide medical services in collaboration with Health authorities and the appellant can be afforded those healthcare facilities in or outside prison during the appeal process. Further, the appellant is still able to access medical attention. It is submitted that the medical condition of the appellant does not appear to be serious and that it does not fall into the category of being an exceptional circumstance.

23. From a consideration of the evidence, Dr. Yockopua on 20th November 2014 referred the appellant overseas for reviews and treatment. The appellant went overseas. On 9th January 2015, Dr. Maria Cainto Bayona in the Philippines diagnosed the appellant with various conditions and stated that he requires regular check ups and monitoring of his blood chemistry every 3 to 6 months. Then on 27th January 2015 Dr. Yockopua stated as to the appellant's status:

"We will continue to review him on a monthly basis until most of the risk factors have been sorted. He will need to continue taking his medications and avoid the risk factors. If he continues to suffer from repeated attacks of chest and other symptoms suggestive of a heart attack we will admit him and refer him for coronary angiogram +/-angioplasty/stenting."

Dr. Yockopua's conclusion was:

"As seen in the above findings supported by the reports attached, this patient (Potape) had suffered previous heart attack, has significant risk factors for another attack, and that we need to continue to monitor him on a frequent basis. When conditions worsen, we will admit him and refer them to another level higher."

24. In regard to Dr. Amana's evidence, he deposes as to being reliably informed of circumstances in Bomana CIS and on that basis forms an opinion as to the risk of keeping a coronary patient such as the applicant there. He does not say who reliably informed him or whether in fact he has actually been to Bomana CIS and viewed the facilities. Given this, in my view, his opinion as to Bomana CIS carries little weight.

25. In his letter dated 5th February 2015, he states, amongst others, and in my view significantly, that, "the CT angiogram done in Medical City showed no evidence of calcium deposition in the coronary arteries, making him a low risk patient." Further, he states that he will continue to see the appellant every three months.

26. There is no indication from these reports that the appellant's condition has worsened, that he cannot have his reviews and monitoring in prison, that he cannot be in prison, or that any doctor of the appellant has been denied access to the prison or been prevented from seeing the appellant in prison.

27. In this regard I refer to the case of Jacob Wama v The State (2003) N2356. In that case, as the applicant had not produced any evidence that he had been denied access to his doctor for treatment or that the doctor had been prevented from seeing him, the court held that in the absence of such evidence the applicant's medical condition could not be regarded as an extraordinary case. Notwithstanding that this is a National Court decision, I am satisfied that the same considerations apply.

28. I am not satisfied that the evidence has shown that the appellant's medical condition will be adversely affected by being in prison or that his condition is seriously deteriorating. I do not find that his medical condition can be categorised on its own as an exceptional circumstance.

Sentence served
29. The appellant submits that as he has been sentenced to serve a total of two and a half years imprisonment, by the time his appeal is heard, with expected remissions, he will have served a substantial part of his sentence before his appeal is heard and determined.

30. To my mind, this is a circumstance to consider, but not exceptional on its own. The applicant is in the same position as other persons waiting for their appeals to be heard and it can be said to be a natural consequence of the conviction. His counsel can take all available measures to attempt to have his appeal heard quickly.

Conclusion
31. After taking all of the facts and matters submitted on behalf of the appellant into account, together with the evidence and submissions of the State, I am not satisfied that the appellant has established that exceptional circumstances exist in his case. His application for bail pending the hearing -and determination of his appeal against conviction is refused.

_____________________________________________________________
Haiara's Legal Practice: Lawyers for the Appellant
Office of the Public Prosecutor: Lawyers for the Respondent