Hulape v Independent State of Papua New Guinea [2018] PGSC 74; SC1741 (2 November 2018)

SC1741

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP NO: 7 OF 2018

IN THE MATTER OF AN APPLICATION SEEKING BAIL

BETWEEN:
CHRISTOPHER PROMARA HULAPE
Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Dingake J
2018: 11 & 18 July, 24 October

Counsel:

Mr. C. Hulape, for Applicant
Mr. C. Sambua, for Respondent

2 November, 2018

1. DINGAKE J: The applicant, Christopher Hulape, appears before me without a benefit of a lawyer. He is a self actor.
2. His application is that he be granted bail on terms that the Court deems fit. He does not state the jurisdictional basis under which he approaches the Court in his bail application, Document No. 1, filed of record.
3. However, in his written submissions, he contends that his bail application is brought in terms of Section 42(2) of the Constitution and Section 6(1) of the Bail Act Chapter No. 340.
4. It is apparent in the papers filed by the applicant, in support of his application, that the appellant was initially convicted by the National Court, per Salika DCJ, in August 2016, and sentenced to five (5) years with conditions. The five (5) years sentence was wholly suspended.
5. Subsequent to the above conviction and sentence, sometime in 2018, the applicant was convicted and sentenced, for a different offence, by the National Court, per Koeget AJ, and sentenced to five (5) years with hard labour.
6. In his papers filed in support of his application, he avers that he has appealed against both decisions of Salika DCJ and Koeget AJ. It is apparent that the bail he seeks is pending those appeals.
7. Having regard to the above, it would appear that the appropriate section of the Bail Act to invoke is Section 11 which deals with bail after lodging an appeal.
8. In terms of Section 11 of the Bail Act a Court which convicted the applicant, or a Court of equal jurisdiction, or a Court of higher jurisdiction may in its discretion grant the applicant bail.
9. Section 1 of the Bail Act defines “Court” as including a Judge of any Court.
10. The applicant avers in his supporting affidavit that he must be granted bail since he has established that he has “exceptional circumstances” based on errors of law and facts committed by the National Court per Koeget J.
11. The applicant argues that as a result of the conviction and sentence by Koeget J, he cannot comply with the conditions imposed by Salika DCJ. He also alleges that he was denied legal representation and misled by the National Court, per Koeget J. I have found no evidence that he was in anyway misled by the judge.
12. This Court has discretion to grant the application. It is a discretion that must be exercised on sound principles.
13. In this case, the applicant has been convicted by a Court of competent jurisdiction.
14. The presumption of innocence that applies to an accused pending trial does not apply to him. He may be entitled to bail if he demonstrated some exceptional circumstances, which he has failed to do.
15. In the result, the application for bail is without merit and it is refused.

___________________________________________________________
Lawyers for the Applicant: In Person

Office of the Public Prosecutor: Lawyers for the Respondent