Kaya v Independent State of Papua New Guinea [2019] PGSC 119; SC1897 (19 November 2019)

SC1897

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP 8 OF 2019

IN THE MATTER
of an Application for Bail pursuant to s. 37(1) and (15) Constitution,
s. 11(c) Bail Act and ss. 5(1)(e) and 10(1)(c) Supreme Court Act

BETWEEN:
DAVID KAYA
Appellant

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Respondent

Waigani: Hartshorn, J.
2019: 19^th November

SUPREME COURT –Application for Bail – 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 – facts that constitute exceptional circumstances discussed - review against conviction must have good prospects of success - applicant ‘s health conditions will worsen if imprisoned- applicant’s family welfare – applicants opportunity to facilitate restitution - Interests of justice – no exceptional circumstances exist – bail refused

Cases Cited:
Papua New Guinean 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
Havila Kavo v. State (2014) SC1571
Francis Potape v. State (2015) SC1341
Esther Ere v. The State (2018) unreported SCAPP 20/17 delivered 1/3/18
Tracey Tiran v. State (2019) SC1844

Overseas Cases

Chamberlain v. R [1982] FCA 235

Counsel:

Mr. J. Abone, for the Applicant
Mr. T. McPhee and Mr. B. Sabarei, for the Respondent

19^th November, 2019

1. HARTSHORN, J: The applicant was convicted of one count of misappropriation. He was sentenced to a total of fifteen years imprisonment, five years of which will be suspended if K5 million is repaid. 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; Havila Kavo v. State (2014) SC1571; Francis Potape v. State (2015) SC1341 and Tracey Tiran v. State (2019) SC1844.

5. The applicant 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 applicant submits that the following facts and matters together constitute exceptional circumstances:

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

b) The applicant 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;

c) Family welfare;

d) Opportunity to facilitate restitution;

e) Interests of justice.

Good prospects of success of appeal

7. The applicant submits that his appeal against conviction has good prospects of success. This is because amongst others, the National Court did not properly consider the terms of the Power of Attorney given to the applicant pursuant to which he made payments and did not consider each element of the charge, there was insufficient invoice and record evidence before the court. Further, the court did not consider necessary considerations in determining sentence.

8. Counsel for the State submitted that the trial judge had considered the points that have been raised by the applicant 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); Paul Tiensten v. State (2014) SC1343 and Esther Ere v. The State (2018) unreported SCAPP 20/17 delivered 1/3/18.

9. As to the applicant’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.

10. As I commented in Potape (supra) at [11], in my opinion it is not for me to form a view as to the applicant'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.”

11. 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.”

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

Family welfare

13. As to members of the applicant’s family and the people of East Awin being disadvantaged because of the applicant'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 applicant.

Opportunity to facilitate restitution

14. The submission that the applicant requires to have bail so that he may access funds to gain the five year suspension of his sentence clearly cannot be considered to be an exceptional circumstance. No further consideration is required in regard to the submission.

Medical condition

15. The applicant deposes amongst others, that he is a very ill person and that he has been sick for a long time with Hypertension and coronary heart disease.

16. The state submits that the applicant’s medical evidence is insufficient, is inconsistent and lacks weight to establish an exceptional circumstance.

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

18. The only evidence before this court from a medical doctor is from Dr. Peter Olali. He confirms that the applicant had a heart attack in 2013 and has taken heart failure medication since then. Dr. Olali also reports that the applicant should be kept at the health facilities in Bomana Gaol so that he can be monitored closely. In a letter dated 11^th November 2019 to the Gaol Commander, Dr. Olali requests that in regard to the applicant not being allowed to go for reviews that the applicant be allowed to attend his clinic for regular follow-ups. Significantly in my view, even after the allegation that the applicant was not receiving his treatment and monitoring, Dr. Olali does not give an opinion that the applicant should be granted bail or should leave Bomana Gaol on a full-time basis because of issues with his health.

19. I note also that there is no actual medical report concerning the applicant before the court.

20. 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.

21. In this instance, although there is evidence that the applicant had been denied some attendances at a clinic and some medication, the applicant’s doctor has not stated that it is necessary for the applicant’s health that the applicant be given bail or that he should leave the Bomana Gaol on a full-time basis.

22. I am not satisfied that the evidence has shown that the applicant'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.

Conclusion

23. After taking all of the facts and matters submitted on behalf of the applicant into account, together with the submissions of the State, I am not satisfied that the applicant has established that exceptional circumstances exist in his case or that it is in the interests of justice that he be granted bail. His application for bail pending the hearing and determination of his appeal is refused.
_____________________________________________________________
Parkil Lawyers: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent