Mose v State [2019] PGSC 31; SC1804 (9 May 2019)

SC1804

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 42 of 2018

BETWEEN:
GIRIGI GOASA MOSE
Appellant/ Applicant

V

THE STATE
Respondent

Waigani: Salika, CJ
2019: 24 April, 9 May

BAIL – Practice and Procedure – Bail pending appeal – requirement to show exceptional circumstance – medical grounds in the case – not an exceptional circumstance

Cases Cited:

John Jaminan v The State (1983) PNGLR 122
Arthur Gilbert Smedley v The State (1978) PNGLR 452
Maraga v The State (2010) SC 1573
The State v Yabara (No1)(1984) PNGLR 133
Denden Tom v The State (2000) SC 914

Counsel

Mr. Kihanges, for the Appellant
Ms. L Jack, for the Respondent

9^th May, 2019

1. SALIKA CJ: INTRODUCTION: The applicant in this matter was charged with misappropriation of K120, 000.00, property belonging to JDM, a company owned by Mr. and Mrs. Dutallas.
   
2. She was convicted of the charge and sentenced to 4 years imprisonment in hard labour by the National Court on 24 July 2018.
   
3. The applicant has filed an appeal against the sentence only.
   
4. This application is for bail pending appeal pursuant to S11(c ) of the Bail Act and S10(i)( c) of the Supreme Court Act.
   
5. The applicant relies on the following material in support of the application:
   
   1. Affidavit of Girigi Goasa Mose sworn and filed 3 September 2018
   2. Affidavit of Girigi Goasa Mose sworn 7 October 2018 and filed 15 October
   3. Affidavit of Dr Athithan Chelvanathan sworn 5 October 2018 and filed 15 October 2018.
   4. Affidavit of Guarantor Arutu Bake sworn 8 October 2018 and filed 15 October 2018;
   5. Affidavit of Guarantor Steve Burke sworn 8 October 2018 and filed 15 October 2018;
   6. Affidavit of Girigi Goasa Mose sworn 26 October 2018 and filed on 15 October 2018;
   7. Affidavit of Girigi Goasa Mose sworn 19 March 2019;and
   8. Affidavit of Dr. Asline Laup sworn 20 March 2018
      
6. I have read all the materials she relies on for this bail application.
   
7. The grounds relied on by the appellant for the bail are:
   
   1. The appellant has been diagnosed with the medical condition known as Systemic Lupus Erythematosus (SLE) which she developed in the 1990s. SLE requires special medical care and treatment. Before being imprisoned at Bomana Prison the Appellant only visited per year for reviews at the Port Moresby Medical Service. Since being imprisoned at the Bomana Prison the Appellant has visited Port Moresby Medical Service on about 20 occasions thus far for treatment and review. She has not only developed complications of SLE but also side effects of the treatment. She has had flare ups of the disease on a number of occasions including severe infection requiring intravenous antibiotics, severe hypertensions requiring in –patient treatment.
      
   2. The Appellants detention at Bomana Prison and her exposure to direct sunlight, poor diet, stress and unhealthy environment are triggers that cause flare ups of SLE.
      

Bail pending Appeal

8. Section 11(c) of the Bail Act says:
   

“11” Bail after lodging Appeal

Where a person lodges an appeal against for conviction or sentence or both;

1. The Court which convicted him; or
2. A court with equal jurisdiction; or

100. A Court of higher jurisdiction,

may in its discretion, on application by or on behalf of the appellant, grant bail pending the hearing of the appeal.

9. The Court has a very wide discretion to grant bail under s11(c) of the Bail Act. Section 11 of the Bail Act does not say that an applicant for bail under this provision must show “exceptional circumstances” in order to be granted bail. However both the Supreme Courts and the National Courts have said over many times that an applicant for bail under S 11 of the Bail Act must show exceptional circumstances. See John Jaminan v The State (1983) PNGLR 122, Arthur Gilbert Smedly v The State (1978) PNGLR 452, Maraga v The State (2010) SC1573, The State v Yabara (No 1) (1984) PNGLR 133, Denden Tom v The State (2000) SC 914. This is because the right to bail under S42 (b) of the Constitution is no longer applicable.
   
10. Kapi DCJ (as he was then) in (1997) SC 538 with respect gives a summary of all case precedents regarding bail after conviction where he said:
    

“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 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 (No1)[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”

11. Injia CJ (as he then was) in Maraga v The State (2010) SC 1573 said:
    

“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 applicants health or life.” The onus is on the applicant to provide corroborative evidence by way of medical certificate or report showing serious and deteriorating medical condition: Joe Parakas v the State, Kuku Hayara v the State (2008) N3488 (Makail J), SCR Nos 12 and 12A of 1984, Jacob Wama Kelewali v The State (2003) N2716 (Salika J), Denden Tom v The State (2004) N2716. Medical evidence must come from reputable practitioner, either private or public.”

12. In this case the only ground the applicant relies on is that the applicant has been diagnosed with a serious medical condition known as Systemic Lupus Erythermatosis (SLE). This condition did not develop as a result of her imprisonment on 19 July of 2018; rather it has been an ongoing concern since 1993. The medical reports which are now before the Court for this bail application are dated from August to October 2018. These medical reports were never before the National Court trial judge. The medical reports I take it are only for the purpose of this bail application and not the appeal itself. The medical reports cannot be part of the appeal book as they were not before the National Court unless she is granted leave to adduce fresh evidence.
    
13. On the affidavit of Dr. Arhithan Chelvanathan I am satisfied that he is an experience physician and a reputable doctor for that matter.
    
14. I accept that the treatment or medication for SLE is not available at the Bomana Jail where the applicant is currently serving time. The applicant from her own affidavit evidence says only Dr Chelvanathan knows how to treat her for her medical condition and that she is attended to by him. Dr. Chalvanathan has the knowledge and experience to attend to her condition.
    
15. The applicants medical condition did not start at Bomana, rather it started at her home in 1993 and it has no cure known to the medical world. The drug she is taking is creating side effects on her health.
    
16. The concluding part of the medical report dated 13 August 2018 says:
    

“Girigi must have access to immediate health care to attend to any of infection at the first instance. She must have multi specialist medical examinations to manage complication of her disease and asses her progress on her management. It has been noted that since July 2018 she has had four visits to the practice with moderate to severe flares up. However prior to that her visit was only on the 26^th May 2018.

The nature of the disease and its serious complications are highlighted in the foregoing for one to appreciate the disease and to understand what and how the patient manages the disease itself.”

17. Part of the medical report dated 2 October 2018 says:
    

“Girigi had developed SLE in the 1990’s and since have been on Prednisolone, a glucocorticoids. She has not only developed complication of the SLE disease itself but also the side effects of the treatment. She has been seen on a number of occasions with flare ups including severe infection requiring intravenous antibiotics, severe hypertension requiring patient treatment. She has developed ophthalmological complications resulting in vision impairments.”

The doctor also says the applicant before been incarnated at Bomana used to attend the clinic twice annually for reviews but now while at Bomana has attended 11 times so far for treatment and for reviews.

18. There is no evidence from the Bomana Correctional Services to give their account of the story concerning the applicants visit to her physician. I am also concerned when the doctor says there are side effects from the medication. Could the side effects of the medication be the cause for the 11 visits to the clinic? This is not clearly spelt out.
    
19. What is clear to me is that the prison officers are allowing her husband to take her to her doctor and that she is getting medical treatment while at Bomana. She is being attended to. It is not as if she is refused and deprived of her right to access medical help. She has access to medical help. She is being assisted from where she is in that she is being taken to her doctor. This is a service not all prisoners get. She is in an already privileged position than other prisoners.
    
20. She no longer has the right to bail because she is now a convicted prisoner and must show exceptional circumstance for the Court to exercise its discretion to grant bail. She has left her victims high and dry without any repayments. Where is their justice? She did not pay them any toea to return their money. I also take note that a lot of money has been spent on her medication and to her lawyers while the victims are left with nothing.
    
21. The applicant with her lawyers must get the appeal ready for hearing instead of making bail applications.
    
22. I consider the applicant is getting treated for her condition and the Correctional Service are allowing her to be taken for treatment. The overcrowding in the jail and the food they are fed is a matter the Courts have no control over. Where the applicant is rostered for duty is a matter for the correctional service. With respect, no exceptional circumstance has been shown to the Court. She has to give the Correctional Officers the medical report so that they can roster appropriately. The application for bail is refused.
    

23. The applicant’s lawyer must prepare the appeal for hearing as soon as possible.
_______________________________________________________________
Fiocco & Nutley Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent