Ere v State [2018] PGSC 109; SC1875 (1 March 2018)

SC1875

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP NO. 20 OF 2017

ESTHER ERE
Applicant

-V-

THE STATE
Respondent

Waigani: David, Kariko &Tamate, JJ
2018: 27^th February &1^st March

PRACTICE & PROCEDURE – bail application – after conviction and sentence by the National Court – appeal against conviction and sentence pending – relevant principles – exceptional circumstances must be shown – onus on the applicant – what constitute "exceptional circumstances" – prospect of success of the appeal – medical condition – serving substantial part of sentence

Cases cited:

Ati Wobiro &Ors v The State, SCAPP 18.19 & 20 of 2016 Unreported Judgement dated 24^th November, 2016
Dr Theo Yausase v The State (2011) SC1112
Gilbert Guari v The State (2015) SC1446
Jacob Wama v The State (2003) N2356
John Jaminan v The State [1983] PNGLR 123
Rakatani Mataio v The State (2007) SC865
Re Application of Paul Tiensten (2014) SC1343
Schubert v The State [1978] PNGLR 394
Smedley v The State [1978] PNGLR 452
The State v Robert Yabara[1984] PNGLR 133

Legislation:

Bail Act (Chapter 340)
Constitution
Correctional Services Act 1995
Correctional Services Regulation 1995
Criminal Code (Chapter 262)
Supreme Court Act (Chapter 37)

Counsel:

Mr R Raka, for the Applicant
Mr T McPhee & Ms C Langtry, for the Respondent

JUDGEMENT

1^st March, 2018

1. BY THE COURT: The prisoner Esther Ere has applied for bail pending her appeal against conviction and sentence of 8 years imprisonment imposed by the National Court on 17^th May 2017for the offence of misappropriation contrary to Section 383ACriminal Code (Chapter 262).
   
2. The application is opposed by the State.
   

The law

3. In Schubert v The State [1978] PNGLR 394, Raine, DCJ stated the law relating to bail after conviction 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.”

4. The right to bail guaranteed by Section 42 (6) Constitution is no longer available after conviction. Section 11 Bail Act(Chapter 340)allows a convicted prisoner to apply for bail pending the determination of his appeal. An application was made before a single Judge of the Supreme Court which was refused so this application comes before us pursuant to Section 10(2) Supreme Court Act (Chapter 37). An applicant for bail pending appeal against conviction must show “exceptional circumstances” for bail to be granted. The onus of satisfying the court of this is on the applicant. What amounts to exceptional circumstances depends on the circumstances of each case.
   
5. The principles have been confirmed in many cases including Smedley v The State [1978] PNGLR 452; John Jaminan v The State [1983] PNGLR 123; The State v Robert Yabara [1984] PNGLR 133; Rakatani Mataio v State (2007) SC865 and Re Application of Paul Tiensten (2014) SC1343.
   
6. The applicant submits three grounds as constituting “exceptional circumstances”:
   
   • (1) That her appeal has good prospects of success;
   • (2) That she has a medical condition that requires her to attend medical clinic regularly to receive treatment; and
   • (3) That she would have served a substantial part of her prison sentence by the time the appeal is heard.
     

Good prospects of success of appeal

7. The law on this point was settled by the Supreme Court in Rakatani Mataio v State (supra) where the court held that prospects of success of the pending appeal do not constitute exceptional circumstances warranting bail pending appeal. After a thorough discussion of the law in overseas jurisdictions as well as the PNG case authorities, the Court stated:
   

“[21] With respect, we are of the opinion that the Court should never be allowed to look at the evidence at this stage of the appeal because it is not the function of the Court to consider the evidence at this stage. To say that the applicant has a good chance of success in his appeal is tantamount to determining the merits of the appeal and this, in our view, is not desirable.”

............................

[57] It is quite inappropriate and dangerous, in our view, for the Supreme Court to start to determine the issue of the prospect of success of an appeal when the Court is not dealing with the substantive merits of the appeal. It is tantamount to hearing the grounds of appeal and that is not the function of the Court at that stage of the appeal.

[58] For these reasons, we hold that the prospect of success of an appeal is not an exceptional circumstance per se. The circumstances of the whole appeal must be considered, not just the prospect of the success of the appeal.” (our emphasis)

See also Re Application of Paul Tiensten (supra).

8. The applicant mainly contends that her appeal against conviction has good prospects of success because the learned trial judge failed to refer to the relevant legal principles in convicting her on circumstantial evidence. We consider this argument to be an issue for the appeal proper. Reference was also made to certain grounds of appeal, but as pointed out by counsel for the State,they largely challenge findings of fact by the trial Judge and it is our view that consideration of the grounds of appeal is the function of the court at the hearing of the appeal.
   

Medical condition

9. The medical condition of a prisoner may constitute an exceptional circumstance justifying the grant of bail but only if the condition is life-threatening and continued detention would seriously endanger the health and life of the prisoner; Ati Wobiro & Ors v The State, SCAPP 18.19 & 20 of 2016Unreported Judgement dated 24^th November, 2016.
   
10. The applicant deposes in her affidavit in support that she suffers from hypertension (high blood pressure) which requires regular medical attention and treatment. In support of her application for bail, she produced medical reports dated 2^nd October, 2017 from two doctors at the Port Moresby General Hospital, a Doctor Sonay Kibob (Consultant Emergency Physician) and a Dr Jack Amana (Cardiologist). Both doctors fear her condition may worsen by her being detained in prison.
    
11. There is no indication from these reports that the appellant's condition worsened after her imprisonment and there is no recent medical report to indicate that her condition has further deteriorated since the examinations were conducted by the doctors last October. A fresh report made close to the bail application is necessary; Gilbert Guari v The State (2015) SC1446 and Dr Theo Yausase v The State (2011) SC1112.
    
12. We note the submission by the State that the Correctional Services is obliged under the Correctional Services Act 1995 to provide for the welfare of detainees; see Sections 7, 13 and 67. We also note that a detainee has a right to reasonable medical care and treatment consistent with community standards and necessary for the preservation of health; Section 141 (1) Correctional Services Act 1995. A correctional institution is required to be served by a medical officer and to maintain an infirmary for sick detainees; Section 141(2) Correctional Services Act 1995 and Section 110 Correctional Services Regulation 1995. The medical officer may be a registered nurse, health extension officer or medical practitioner; Section 107 Correctional Services Regulation 1995. If the medical officer believes the life of a detainee is endangered by his detention in a correctional institution or he may not survive his sentence or he is unfit for detention in prison, that matter must be reported to the Commissioner; Section 114.
    
13. It may be that the Bomana Gaol does not presently have the requisite medical officer or infirmary but there is no evidence before us to that effect.
    
14. The applicant has also not produced any evidence that she cannot have her medical reviews and monitoring while she is in jail, or that her doctors have been denied access to see her in prison or that she has been prevented from attending Port Moresby General Hospital or other medical clinic for her reviews and treatment. In the absence of such evidence, the applicant’s medical condition could not be regarded as an exceptional circumstance; Jacob Wama v The State (2003) N2356.
    
15. We are not satisfied that the evidence shows that the applicant’s medical condition is seriously deteriorating and she is being denied medical assistance. We therefore do not consider her medical condition as an exceptional circumstance.
    

Sentence

16. Counsel for the applicant did not address us at all on the ground relating to sentence so we assume that ground is abandoned. In any case, we find no merit in that ground. The sentence of 8 years (with expected remissions) expires around 17^th September, 2022. We think the appeal may possibly be heard as early as later this year. The obligation is on the applicant to prosecute her appeal with due diligence. We reject the suggestion that the applicant will have served a substantial part of her sentence by the time her appeal is heard.
    

Conclusion

17. Taking into account all of the facts and matters urged by counsel, we are of the opinion that the applicant has not established any exceptional circumstance warranting the grant of bail pending her appeal, and we accordingly refuse her application.

___________________________________________________________

Raurela Lawyers: Lawyer for the Applicant
The Public Prosecutor: Lawyer for the Respondent