Gum v State [2021] PGSC 36; SC2095 (29 April 2021)

SC2095

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APP NO 1 OF 2021

BENEDICT GUM

V

THE STATE

Waigani: Berrigan, J
2021: 23^rd and 29^th April

CRIMINAL LAW – BAIL APPLICATION - Section 11 of the Bail Act – Sections 5 and 10 of the Supreme Court Act – Application previously made before a single judge of the Supreme Court – Application refused.

Cases Cited

Rakatani Mataio v The State 2007 SC865
Turin v Toyota Tsusho (PNG) Ltd (trading as Ela Motors) (2019) SC1882
Bob v The State (2005) SC808
In re Bail Act Chapter 340, Application by Paul Tiensten (2014) SC1343

References Cited

Section 11 of the Bail Act, 1975
Sections 5 and 10 of the Supreme Court Act
S 162(2) of the Constitution

Counsel

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

DECISION ON BAIL APPLICATION

29^th April, 2021

1. BERRIGAN J: This an application for bail following conviction and sentence.
   

Background

2. The applicant was convicted by the Chief Justice, Sir Gibbs Salika, on 23 November 2018 of one count of misappropriating K350,000 belonging to Stanis Talu, contrary to s 383A of the Criminal Code.
   
3. On 22 October 2020 he was sentenced to seven years of imprisonment in hard labour.
   
4. On 13 November 2020 the applicant lodged an appeal against sentence, SCRA No 31 of 2020. On the same day he lodged a bail application on the basis of the strong prospects of success of that appeal.
   
5. On 19 November 2020 the applicant filed an application for leave to review against conviction, SC Rev 65 of 2020.
   
6. On 24 November 2020 Makail J dismissed the application for bail on the basis that the prospects of the success of an appeal does not constitute an exceptional circumstance, and on the further ground that there was no evidence that an appeal against sentence had in fact been lodged (as there was no evidence as to the date the appeal was lodged, nor was a sealed copy of the notice produced), and the applicant was yet to file a review against conviction.
   
7. On 15 December 2020 the applicant filed a fresh bail application attaching a copy of the notice of appeal against sentence filed on 13 November 2020 and seeking bail on medical grounds.
   
8. On 21 December 2020 Hartshorn J dismissed the application for leave to review conviction on the basis that: the delay was inordinate; no reasonable explanation had been given for the delay; there were no exceptional circumstances, and no specific exceptional circumstances; it was not a test case and there was no particular circumstances exist which required the court’s determination on a new or novel point of law; it was not in the interest of justice that a person who decided not to appeal after receiving legal advice should be entitled to have his conviction reviewed after legal advice from a different lawyer, almost two years after his conviction.
   
9. The applicant says that on 22 December 2020 he applied to the Full Court of the Supreme Court for leave to review Hartshorn J’s decision, which application is now pending.
   
10. On 4 March 2021 Cannings J refused to hear the applicant’s bail application on the basis that the matter was completed following Makail J’s decision. The applicant says that the court advised him to file a fresh bail application under a new proceeding. There is no record of Cannings J’s ruling before me.
    
11. On 18 March 2021 the applicant filed this further fresh application for bail, again on medical grounds.
    

Application for bail following conviction and sentence

12. On its face the application is made pursuant to s 42(6) of the Constitution, ss 6 and 11 of the Bail Act, 1975 and s 10 of the Supreme Court Act.
    
13. There is no right to bail after conviction under s 42(6) of the Constitution: Rakatani Mataio v The State 2007 SC865. Section 11 of the Bail Act and ss 5 and 10 of the Supreme Court Act are the operative provisions now. As the Courts have repeatedly emphasised, an applicant seeking bail following conviction and sentence must show exceptional circumstances, and an application is to be viewed with great care and reticence: Mataio.
    
14. Section 11 of the Bail Act provides that where an appeal has been lodged, such an application may be heard by a court of higher jurisdiction:
    

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.

15. Section 162(2) of the Constitution provides that the jurisdiction of the Supreme Court may be exercised by a single judge in such cases provided for under an Act of Parliament:

162(2) In such cases as are provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.

16. Ss 5 and 10 of the Supreme Court Act read together give power to a single judge to hear an application for bail:
    

S. 5 INCIDENTAL DIRECTIONS AND INTERIM ORDERS.

(1) Where an appeal is pending before the Supreme Court–

(a) a direction not involving the decision on the appeal; or

(b) an interim order to prevent prejudice to the claims of the parties; or

(c) an order in any proceedings (other than criminal proceedings) for security for costs; or

(d) an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or

(e) an order admitting an appellant to bail,

may be made by a Judge.

(2) A direction or order made under Subsection (1) shall be deemed to be a direction or order of the Supreme Court.

(3) A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court.

S. 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.

(2) Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court.

Consideration

17. The State submits that the applicant has no standing under s 11 of the Bail Act as there is currently no appeal on foot as the application for leave to review conviction was dismissed by Hartshorn J. The applicant contends that an appeal against sentence has been lodged and furthermore, an application to review Hartshorn J’s decision is pending.
    
18. Neither submission is entirely accurate and neither provides an answer in this case.
    
19. Firstly, it is clear that an appeal has been lodged, but an application under s 11 and s 10(1)(c) has already been heard and determined by Makail J. At the time of the application, an appeal against sentence had been “lodged” for the purposes of s 11 of the Bail Act, and was “pending” for the purposes of s 5 and s 10(1)(c) of the Supreme Court Act.
    
20. Section 10(2) of the Supreme Court Act makes clear that where a Judge refuses an application in relation to a matter specified in Subsection (1), in this case, bail, the applicant may apply to the Supreme Court to have the matter determined by that Court. The Supreme Court is the full Supreme Court. Makail J heard and refused the applicant’s bail application. Accordingly, if the applicant wishes to apply for bail now he must do so under s 10(2) of the Bail Act to the full Supreme Court.
    
21. Instead the applicant filed a fresh application on 15 December 2020, which Cannings J refused to hear, and now this further fresh application.
    
22. Secondly, whether or not a review, or even an appeal against conviction, is now on foot, is beside the point.
    
23. It is by no means clear, but it appears that the applicant relies on the fact that he now has an application for leave to review Hartshorn J’s decision on foot as enabling him to make this application before a single judge “under a new proceeding”.
    
24. It does appear that an application for leave to review pursuant to s 10(2) of the Supreme Court Act was lodged with the full Supreme Court on 22 December 2020. On the face of the application it is not an application for leave to review Hartshorn J’s decision but an application to the full Supreme Court to review the decision of the trial judge, Chief Justice Salika, on conviction.
    
25. There is a question to my mind as to whether it was permissible for the applicant to apply to a single judge of the Supreme Court to seek leave to review his conviction pursuant to s 155(2)(b) of the Constitution in the first place, and whether, having done so, he is now permitted to apply to the full Supreme Court on the same grounds. In Turin v Toyota Tsusho (PNG) Ltd (trading as Ela Motors) (2019) SC1882 the Chief Justice, Sir Gibbs Salika, held that Section 10 (2) of the Supreme Court Act does not enable the applicant to go to the full Court of the Supreme Court to invoke the powers under s. 155 (2) (b) of the Constitution. “The jurisdiction under s. 155 (2) (b) is not and with respect cannot be exercised or invoked under s. 10 (2) of the Supreme Court Act. The jurisdiction under s. 10 (2) of the Supreme Court Act is for appeals only.” Furthermore, as observed by the Chief Justice, leave applications under s. 155 (2) (b) in criminal matters are heard by the full Court of the Supreme Court.
    
26. It is not necessary for me to determine those matters, which are beyond the scope of this bail application. Regardless of whether or not an application for leave to review the conviction is pending, or is an abuse of process, it is very clear that s 11 of the Bail Act and ss 5 and 10(1)(c) of the Supreme Court Act, when read together, provide a single judge with power to grant bail only where an “appeal” has been lodged and is pending. On their face those provisions have no application where an applicant is seeking leave to review.
    
27. At the risk of repetition, the applicant’s application pursuant to s 11 and ss 5 and 10(1)(c) has been heard and determined. If he wishes to apply again he must go the full Court. To my mind that is the end of the matter.
    
28. I note here that my view would be no different if in fact the applicant had lodged an appeal against conviction instead of an application seeking leave to review. Section 11 does not envisage separate bail applications arising out of separate notices of appeal as seems to be suggested.
    
29. That is clear from the terms of s 11 itself which provides that a court may grant bail following conviction and sentence where a person lodges an appeal against “conviction or sentence or both”.
    
30. It also follows as a matter of common sense. Whilst appeals against conviction and sentence are distinct they arise from the same criminal proceeding. The 40-day appeal period for each starts to run immediately after the date on which the sentence is imposed: Bob v The State (2005) SC808. (A matter which counsel for the applicant appears not to have been aware of when seeking leave for review less than one month after sentence.)
    
31. An alternative interpretation of s 11 would mean that a person who filed an appeal against both conviction and sentence would be permitted to bring two separation applications for bail whilst a person who appealed only against only or the other would not. Not only is that contrary to the terms of s 11 and common sense in general terms for the reasons stated above, it makes even less sense given that bail will only be granted in exceptional circumstances, and that in determining this issue, the prospects of success of an appeal cannot of itself constitute an exceptional circumstance. The circumstances of the whole appeal must be considered: Mataio (supra); In re Bail Act Chapter 340, Application by Paul Tiensten (2014) SC1343.
    
32. The applicant did not seek to bring the application on the basis of a change in circumstances. As such the question of whether a single Supreme Court judge is permitted to hear an application for bail based on change of circumstances in the particular context of s 11 and s 10 was not raised, or argued before me: cf Tom v Superintendent Corrective Services Giligil (2004) N2716 and Karo v The State (2009) SC998. In the circumstances I will say nothing more.
    
33. In conclusion, a single judge of the Supreme Court has no discretion to hear a bail application unless an appeal has been lodged and is pending. There is an appeal against sentence pending in this case but the applicant has already applied under s 11 of the Bail Act for bail and been refused. He may now seek bail before the Supreme Court pursuant to s 10(2) of the Supreme Court Act. That application is a fresh application which the Court considers and determines de novo: State v John Tuap (2004) SC765. He is at liberty to raise old and new grounds.
    
34. The application is refused.

________________________________________________________________
Kimbu Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State