Gum v State [2020] PGSC 122; SC2032 (24 November 2020)

SC2032
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP NO. 10 OF 2020

BETWEEN
BENEDICT GUM
Applicant

AND
THE STATE
Respondent

Waigani: Makail J
2020: 19^th & 24^th November

SUPREME COURT – Application for bail – Bail sought after conviction and sentence – Exceptional circumstances – Grounds of – Strong prospects of success of appeal – Failure by trial judge to take into account evidence of restitution – Strong mitigating factor – Sentence of 7 years imprisonment – Likelihood to sentence reduce to non-custodial sentence – Criminal Code – Section 383A – Constitution 42 – Bail Act – Section 11(c) – Supreme Court Act – Section 10(1)(c)

SUPREME COURT – Application for bail – Bail sought after conviction and sentence – No appeal filed against conviction – No evidence to verify appeal against sentence – Applicant disentitled to bail – Bail Act – Section 11 – Supreme Court Act – Section 10(1)(c)

Cases Cited:

Rakatani Mataio v. The State (2007) SC865
Taio Mino v. The State (2012) N5180
Havila Kavo v. The State (2014) SC1571
Paul Tienstan v. The State (2014) SC1343
Bola Renagi & Ors v. The State (2000) SC649
Francis Potape v. The State (2015) SC1341

Counsel:

Ms. A. Kimbu, for the Applicant
Ms. D. Jack, for the Respondent

RULING ON BAIL

24^th November, 2020

1. MAKAIL J: This is an application for bail following conviction and sentence by the National Court pursuant to Section 42(6) of the Constitution, Section 11(c) of the Bail Act and Section 10(1)(c) of the Supreme Court Act. These provisions confer power on the Supreme Court to grant bail to an applicant after conviction and sentence. The State opposes bail on the ground that the ground on which the applicant relies on does not constitute an exceptional circumstance.

Brief Facts

2. The applicant was convicted on one count of misappropriation of the sum of K350,000.00 being monies belonging to Stanis Talu on 23^rd November 2018 and sentenced to a term of seven years imprisonment on 22^nd October 2020. The sum of money was given by Stanis Talu to purchase a piece of land. The piece of land was purchased in the name of the applicant and he did not transfer the title to Stanis Talu until after he was convicted. After he subdivided the land, he attempted to give two portions of it to Stanis Talu and provided two contracts of sale to the latter to sign but the latter did not sign them.

3. First, the applicant asserts that he filed an appeal against sentence on the grounds of excessiveness when the trial judge failed to take into account that he made restitution. However, he does not say in his affidavit in support filed 13^th November 2020 when he did that. Also, he does not produce a sealed copy of the notice of appeal to verify his assertion. Secondly, his counsel asserts that as he is out of time to appeal, he will be filing an application to review his conviction.

Guarantors

4. Two guarantors supported his application. They are Clement Paubali who works at the Ombudsman of Papua New Guinea as a Senior Investigator and Chief Inspector Charles Winvan, a member of the Police and works in the Internal Affairs Directorate at the Police Headquarters, Konedobu. If bail is granted each pledged to put up K500.00 cash surety.

Principles of Bail After Conviction and Sentence

5. The law is that where a person has been convicted of an offence, bail is no longer available to him under Section 42(6) of the Constitution and if he wants bail, he must show exceptional circumstances exists to be granted bail: Rakatani Mataio v. The State (2007) SC865.

6. What constitutes exceptional circumstances is not defined. In this case, the applicant relies on one ground which he says constitutes exceptional circumstances and merits a grant of bail.

Strong prospects of success of appeal

7. The applicant relies on the strong prospects of success of appeal. He argues that the trial judge failed to take into account evidence of restitution as a strong mitigating factor. The evidence of restitution was tendered before the trial judge and comprised of an evaluation report and contract of sale which showed that he made restitution by returning the land to the complainant Mr Stanis Talu. The total value of the two portions of land is said to be K750,000.00 which he says was over and above the sum he had misappropriated. If taken into account, the sentence of 7 years imprisonment would be reduced to non-custodial sentence.

8. The applicant relies on the National Court decision in Taio Mino v. The State (2012) N5180 where one of the grounds in which the Court granted bail was a real likelihood of the appeal succeeding. However, it was not articulated by the judge what the apparent error was to arrive at this conclusion.

9. In Havila Kavo v. The State (2014) SC1571 Injia CJ sitting as a single judge of the Supreme Court observed that it is possible to look at the grounds of appeal to see if the judgment and Court records contain errors that may be apparent on the face of the record from which the Court may form a tentative view as to the likely success or failure of the pending appeal. It was held that the absence of a finding on the requisite element of intention to defraud the State of sums of monies by Mr Kavo demonstrated strong prospects of success.

10. However, this was a single judge’s decision. In Paul Tienstan v. The State (2014) SC1343 the full Court expressed a contrary view and reaffirmed the earlier decision in Rakatani Mataio v. The State (supra) where prospects of success of appeal does not constitute an exceptional circumstance for bail to be granted. In that case the Supreme Court reviewed all past cases on bail after conviction and sentence including the doctrine of stare decisis for judicial precedent purposes and held that the decision of the Supreme Court in Rakatani Mataio v. The State (supra) that strong prospects of success of appeal does not constitute exceptional circumstance is good law.

11. The decision in Paul Tienstan v. The State (supra) was by a three-man-bench and is binding on me and displaces the authority of the National Court decision in Taio Mino v. The State (supra) and a single judge of the Supreme Court decision in Havila Kavo v. The State (supra). I agree with the proposition 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 agreement: Bola Renagi & Ors v. The State (2000) SC649 per Amet CJ.

12. Subsequent decisions by a single judge did not follow the decision in Havila Kavo (supra). In Francis Potape v. The State (2015) SC1341, Hartshorn J sitting as a single judge refused bail and amongst other reasons, observed:

“8. Counsel for the State submitted that the trial judge had considered the points that have been raised by the appellant 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) and Paul Tiensten v. State (2014) SC1343.

9. As I understand it, the appellant is not submitting that his prospects of success on the appeal constitute an exceptional circumstance. He is merely submitting that his prospects of success are a circumstance that may be considered.

10. As to the appellant’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

11. I say however with respect, that in my opinion it is not for me to form a view as to the appellant's prospects of success on his appeal. I am fortified in my opinion by the comments of the Court in Mataio (supra).”

13. I follow these decisions and dismiss this ground.

Absence of appeal

14. The other reason is this, although the State does not oppose bail on this ground, it is important to place before the Court a copy of the notice of appeal to verify that the applicant has appealed the conviction and sentence. I am not certain if it is mandatory. I say this because I am aware of cases where after an accused who has been on bail has been convicted and yet to file an appeal against conviction but before sentence is granted bail. Bail is granted presumably on the original bail with same conditions. The time interval between date of conviction and hearing on sentence various from cases to case but generally, no more than a year, and usually a month or so. The period of adjournment is to allow the prisoner to collect information that will mitigate the seriousness of the offence such as a presentence report, reference from a referee and means of assessment report. I have done that before, but Section 11 of the Bail Act appears to draw the Court to the requirement of an appeal prior to bail. It states:

“11. Bail after lodging appeal.

Where a person lodges an appeal against his conviction or sentence or both—

(a) the court which convicted him; or

(b) a court of equal jurisdiction; or

(c) 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.”(Underlying is mine).

15. It is reinforced by Section 10(1)(c) of the Supreme Court Act by the use of the term “appellant”. It states:

“10. Powers that may be exercised by Judge.

(1) Any power of the Supreme Court under this or any other Act—

(a) to give leave to appeal; or

(b) to extend the time within which notice of appeal or of an application for leave to appeal may be given; or

(c) to admit an appellant to bail,

may be exercised by a Judge in the same manner as it may be exercised by the Court.” (Underlining is mine).

16. Given the way the provisions in the two legislations have been drafted, they can only refer to one thing: there must be an appeal on foot before an application for bail can be made. I take up the point made at [3] (supra). Not only does the appellant fail to say in his affidavit in support filed 13^th November 2020 as to when he filed an appeal against sentence, but he does not produce a sealed copy of the notice of appeal to verify his assertion. Secondly, by his own admission through counsel, he has yet to file a review against his conviction. In effect, he has not filed a review against his conviction.

17. The applicant does not say in his affidavit in support (supra) that he was granted bail after he was convicted as envisaged at [14] (supra). Now that he has been sentenced to an imprisonment term and where no appeal has been lodged, the Court would be granting bail to the applicant and allowing him to be a freeman when he is not. He is a prisoner of State. Strictly, up to this point he is not an appellant within the meaning of Section 11 of the Bail Act and Section 10(1)(c) of the Supreme Court Act and disentitled to bail.

18. Bail will be refused for this further reason.

Order

19. The application for bail is refused.

Ruling and orders accordingly.
________________________________________________________________
Kimbu & Associates: Lawyer for Applicant
Public Prosecutor: Lawyer for Respondent