Tiran v Independent State of Papua New Guinea [2019] PGSC 67; SC1844 (19 June 2019)

SC1844

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP 4 of 2019

BETWEEN:
TRACEY TIRAN
Appellant

AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Respondent

Waigani: Hartshorn, J.
2019: 18^th, 19^th June

BAIL - Application for Bail pending appeal – principles for grant of bail considered – applicant to show exceptional circumstances exists that warrants grant of bail – evidence does not show there exists exceptional circumstances – bail refused

Cases Cited:

The State v. Yabara (No.1) [1984] PNGLR 133

Jacob Wama v The State (2003) N2356

Counsel:

Ms. L. Kauba, for the Applicant
Mr. T. McPhee and Mr. B. Savarei, for the Respondent

19^th June, 2019

1. HARTSHORN, J: The applicant for bail was convicted of one count of misappropriation and sentenced to 6 years imprisonment. The applicant has appealed to the Supreme Court against her conviction and sentence.

2. This matter came before me as a single judge of the Supreme Court pursuant to s. 13(2) Bail Act. Counsel for the State did not object to the application being made under this section and in any event I am satisfied that I have jurisdiction pursuant to s. 5(1)(e) Supreme Court Act. The application for bail is opposed by the State.

3. 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: The State v. Yabara (No.1) [1984] PNGLR 133. There is no right to bail after conviction and a court must be very vigilant and cautious in its consideration of such applications.

4. The applicant relies upon two grounds: that she has undergone major surgery twice and her post-operative recovery requires her release on bail. Further, these two grounds constitute a change of circumstances since her unsuccessful bail application to the National Court.

5. The applicant relies upon two medical reports in regard to her condition and gives evidence that amongst others, her two major surgeries have caused her to suffer stress and hypertension, and that she is a high risk of developing a stroke. The applicant deposes that she has been advised to change her diet and improve her conditions if she is to recover well.

6. From a perusal of Dr. Ronald Galacio’s report, it is reported that amongst others, that the applicant is negative for inducible ischemia, or is not at risk of coronary artery blockages. Her coronary status is stable. There are some risks of developing an acute cardiac or cerebrovascular event. Dr. Travertz reports that amongst others, the applicant’s high cholesterol levels and hypertension increased her risk of developing a stroke or heart attack. Neither report states that the applicant is at high risk of developing a stroke. Further, neither report contains a statement or recommendation that it is necessary for the applicant’s health that should be granted bail or released from prison and there is no evidence to the effect that when the applicant has been required to attend hospital or her doctors for treatment or medication, that such visits have been denied.

7. I make reference 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.

8. In the absence of such evidence here, and taking into account the other evidence of the applicant and submissions of both counsel, I am not satisfied that an extraordinary or exceptional circumstance has been made out for the applicant to be granted bail.

9. Accordingly the application for bail is refused.
_____________________________________________________________
Yalapan & Associates Lawyers: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent