Pisa v State [2018] PGSC 7; SC1660 (16 March 2018)

SC1660

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP NO. 20 OF 2017

BETWEEN
PAUL PISA
Applicant

AND
THE STATE
Respondent

Waigani: Dingake J
2018 : 16^th March

SUPREME COURT – Bail application pending appeal – Medical grounds – Exercise of discretion – Bail refused.

Cases cited:
Esther Ere v. The State, SCAPP No. 20 of 2017
Arua Maraga v. The State, SCAPP No. 14 of 2010 SC1573
Francis Potape v. The State SCAPP No. 02 of 2015 (215) SC1419
Havila Kavo v. The State (2014) SC1571
Rakatani Mataio v. The State, SCA No. 13 of 2004 (2007) SC865

Counsel:

Mr. Fredrick Kirriwom, for Applicant
Ms. Sabine Dusava, for Respondent

1. DINGAKE J: This is an application for bail pending appeal against conviction. The application is made in terms of Section 11 of the Bail Act.

2. The application is opposed by the State.

3. The applicant was convicted and sentenced on a charge of Sexual Penetration of a child under the age of 16 in terms of Section 229A of the Criminal Code Act on the 20^th of April, 2017.

4. The applicant was sentenced to serve a prison term of 15 years.

5. On the 23^rd of May 2017, the applicant filed an appeal against conviction by the National Court.

6. The law governing matters of bail pending appeal is well established in this jurisdiction. The granting or refusal of bail is discretionary. This discretion is exercised on exceptional circumstances. There is plethora of authority on this point: Schubert v The State (1978) PNGLR 394; Mataio v The State (2004) SC865; Denden Tom v The State; Smedly v The State (1978) PNGLR 452.

7. In the case of Enuma and Others v. The State (1997) SC 538, the Court, per Kapi DCJ stated as follows:

“The principles which govern bail pending appeal are well settled in this jurisdiction. The power to grant bail is discretionary. This discretion has been developed by case law and it is now established that application for bail after conviction is viewed with very great care. The situation is different to the one from before conviction when the presumption of innocence still prevails. The strong presumption in favour of bail pursuant to s 42 (6) of the Constitution is no longer applicable. The onus is on the applicant to show that there are matters which constitute exceptional circumstances before bail is allowed pending appeal. The authorities establishing these principles are conveniently set out by the Supreme Court in the State v. Yabara (No. 1 (1984) PNGLR 133. The Supreme Court has stated that it is not appropriate to compile a list of circumstances which would be regarded as exceptional. This is to be determined from the whole of the circumstances of the particular case.”

8. In Schubert v The State (1978) PNGLR 394; Raine DCJ stated the position of the law in the following terms:

“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”.

9. In this case, the applicant relies on his medical condition as the main factor constituting exceptional circumstances. He avers in his supplementary affidavit that whilst serving his term of imprisonment at Bomana Goal he developed a number of medical conditions, particularly a growth on his right eye which needed to be surgically removed; chronic asthma attacks and swollen testicle.

10. The applicant underwent assessment at Port Moresby General Hospital and the growth on his right eye was surgically removed – what remained outstanding was to ascertain the cause of the swelling. It would seem from his evidence that what delayed the ascertainment of the swelling was that he was also suffering from chronic asthma attacks which had to be brought under control before any intrusive medical procedure could be undertaken.

11. The case law on medical ground as an exceptional circumstance in this jurisdiction suggests that medical condition may be an exceptional circumstance if it could seriously endanger the applicant’s health or life: Rolf Schubert v The State [1978] PNGLR 394 at 396.

12. The onus is on the applicant to establish that the medical condition he relies upon may endanger his health or life: Kuku Hayara v The State (2008) N3488 (Makail J). In the case of Arua Maraga v The State (2010) SC1573, page 2, Injia CJ stated that:

“An applicant’s medical condition may be an exceptional circumstance, provided it is serious and such that detention in hard labour will have a deleterious effect on the applicant and could seriously endanger the applicant’s health or life”.

13. Ms. Dusava learned Counsel for the State submitted that the Correctional Services Act 1995 provides for the welfare of detainees. Section 114 of the Correctional Services Regulations 1995 provides that if a medical officer of the Correctional Services believes the life of a detainee is in endanger by his detention in a Correctional Institution or he may not survive his sentence or he is unfit for detention in prison, then such a state of affairs must be reported to the Commissioner.

14. In this case, the Commanding Officer of Bomana Metropolitan Institution Superintendent, Haraya Keddy Keko has deposed to an affidavit in which he says that the applicant has not, since December 2017, made any formal requests to be taken to the Port Moresby General Hospital for further medical assessment.

15. It is also instructive that the applicant has not suggested to this Court that his doctors have been denied permission to see him or he has otherwise been prevented from attending at Port Moresby General Hospital to obtain requisite treatment.

16. In terms of the Correctional Services Act, the welfare of the detainee is a matter for the Correctional Institution and the prison Commander. The detainee is at liberty to vindicate his rights in Court, if any of his rights are violated. In my mind bail is clearly not the correct vehicle to vindicate any such rights, in the event they are violated. Bail application pending appeal must be considered and determined on the principles governing same.

17. During argument, learned counsel for the applicant, Mr. Kirriwom did not seek to advance the averment of the applicant foreshadowed in his affidavit sworn on the 5^th of December 2017, that seem to challenge his conviction. Nothing much turns on this point and counsel was correct not to seek to take this point any further.

18. In all the circumstances of this case, the applicant has not established a case of “exceptional circumstances” to justify the granting of bail pending appeal. Accordingly, this application is without merit and it is dismissed.

______________________________________________________________
Public Solicitor: Lawyers for the Applicant
State Prosecutor: Lawyers for the Respondent