Kande v State [2021] PGSC 99; SC2181 (24 December 2021)

SC2181

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APP NOS 11, 12 & 13 OF 2021

TONY KANDE, WILSON MUKA & HENRY NAIO
Applicants

V

THE STATE
Respondent

Waigani: Cannings J
2021: 21^st, 24^th December

BAIL – application to Supreme Court for bail pending appeal against conviction – Bail Act, s 11 – whether exceptional circumstances warranting bail.

The three applicants are police officers convicted of obstructing the course of justice and sentenced to custodial terms of imprisonment of 18 months or two years each. They lodged appeals to the Supreme Court against their conviction and sentence and then applied for bail under s 11 of the Bail Act. The State opposed bail.

Held:

(1) An applicant for bail under s 11 of the Bail Act must prove that exceptional circumstances warrant the granting of bail.

(2) There were exceptional circumstances here given the relatively short custodial terms that the applicants are facing and the risk of their appeals not being able to be heard and determined before the lapse of a significant portion of their custodial terms.

(3) Other relevant considerations were that their grounds of appeal are not obviously unmeritorious and that they each have a good record of complying with the bail conditions that applied in the course of their National Court proceedings and that they face some risk of personal harm due to exposure in the prison to persons imprisoned as a result of discharge of their police duties.

(4) Bail granted subject to K2,000.00 being paid up-front and other conditions including diligent prosecution of their appeals.

Cases Cited

The following cases are cited in the judgment:

John Jaminan v The State [1983] PNGLR 122
Paul Tiensten v The State (2014) SC1343
Pauline Stephenson v The State (2020) SC1928
Rakatani Mataio v The State (2007) SC865
Schubert v The State [1978] PNGLR 394
The State v Kande, Muka & Naio (2021) N9132
The State v Kande, Muka & Naio (2021) N9252

Counsel

M Wenge, for the Applicants
T Kametan, for the Respondent

24^th December, 2021

1. CANNINGS J: Tony Kande, Wilson Muka and Henry Naio apply to the Supreme Court for bail under s 11 of the Bail Act. They are members of the Police Force serving prison sentences of two years in the case of Kande and Naio and 18 months in the case of Muka after their conviction, after trial, of the offence of attempting to obstruct the course of justice, contrary to s 136 of the Criminal Code.

2. They were convicted on 13 September 2021 (The State v Kande, Muka & Naio (2021) N9132) and sentenced on 5 November 2021 (The State v Kande, Muka & Naio (2021) N9252). They each appealed against their conviction and sentence on 26 November 2021, within the 40-day appeal period set by the Supreme Court Act.

3. Section 11 of the Bail Act provides:

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.

4. A prisoner seeking bail pending appeal has the onus of proving that there are exceptional circumstances warranting the grant of bail. Numerous cases have settled that point including Schubert v The State [1978] PNGLR 394, John Jaminan v The State [1983] PNGLR 122 and Paul Tiensten v The State (2014) SC1343.

5. The State opposes bail, arguing that there are no exceptional circumstances. The applicants argue that the combined effect of the following factors make their case exceptional:

1. their due dates of release from custody are likely to arrive before determination of their appeals;
2. they have serious concerns for the welfare of their families;
3. they face serious threats to their personal security while in prison;
4. they have a strong prospect of succeeding with their appeals.
   

6. The second factor is irrelevant. Prisoners inevitably have serious concerns for their family once they are imprisoned. These concerns are almost invariably genuine, but they are not exceptional.

7. The third factor does not usually carry much weight. A police officer who is imprisoned will often be at more risk of harm within the prison than other prisoners. However, I note that there is some corroboration of the claim of an enhanced risk of harm to these particular applicants in an affidavit by Chief Inspector Robert Volo, Acting Superintendent, Criminal Investigation Division, National Capital District. It can be taken into account in this particular case as tending to show that the circumstances are exceptional.

8. As to the fourth factor, it is not proper in a bail application of this nature for an assessment to be made of the prospects of success of the appeal (Rakatani Mataio v The State (2007) SC865). I refrain from doing that. However, I consider that I am authorised to make a cursory examination of the grounds of appeal, and I have done that, and my assessment is that there are some grounds of appeal that appear arguable and are not obviously untenable.

9. The first factor – the risk that the appellants will serve their prison terms before their appeals can be heard and determined – is the weightiest consideration. With the benefit of the remission of one-third of their sentence to which each applicant is in effect entitled under s 120 of the Correctional Service Act, their due dates of release from custody are 4 March 2023 in the case of Kande and Naio and 4 November 2022 in the case of Muka.

10. While it cannot be said with certainty that their appeals cannot be heard and determined before those dates, it is certainly the case that, given the relatively short custodial terms that the applicants are facing, there is a real risk of their appeals not being able to be heard and determined before the lapse of a significant portion of their custodial terms. If their appeals against conviction are allowed and they are acquitted, they would be prejudiced by having spent a considerable time in custody.

11. The Supreme Court in Pauline Stephenson v The State (2020) SC1928 held that the circumstances of a prisoner facing a short time in custody who applies for bail pending an appeal against conviction are capable of being regarded as exceptional. There, the time to be served in custody was only ten months, which gave rise to exceptional circumstances and the prisoner was granted bail. Here the time to be served is 16 months in the case of Kande and Naio and 12 months in the case of Muka. These are longer periods than in Stephenson but the principle still applies. The applicants are facing relatively short periods in custody and there is a risk that if their bail applications are refused they will have served significant portions of their sentences before their appeal is heard and determined. This tends to make their circumstances exceptional.

12. I now refer to two other matters not highlighted by the applicants, which I think are relevant. First, they were on bail for a long period during the course of their National Court proceedings and there is no evidence that they breached their bail conditions in that period. They deserve credit for that. It adds to the mixture of factors tending to make their circumstances exceptional. Secondly, they have taken active steps to prosecute their appeal. They have made an official request to the Court Reporting Service to obtain a transcript of the National Court proceedings.

13. In summary, I find that the combined effect of the following factors gives rise to exceptional circumstances warranting the grant of bail:

• the relatively short custodial terms, which is the weightiest consideration;
• there is some corroboration of their claim that their personal security is at risk while they are in prison;
• their grounds of appeal are not obviously unmeritorious;
• they were on bail for a long period during the course of their National Court proceedings and there is no evidence of any of them breaching their bail conditions;
• they have taken active steps to prosecute their appeals.
  

14. For those reasons, bail is granted. Cash bail will be K2,000.00 each. Other standard bail conditions will apply, to be included in the order of the Court.

ORDER

15. Each application for bail under s 11 of the Bail Act, filed 9 December 2021, is granted on the following conditions:

1. K2,000.00 cash bail in respect of each applicant to be paid prior to release from custody.
   
2. Brian Avuti and David Sopane shall be the guarantors for Tony Kande. Nao Mase Oala and Thoa Gelai Enara shall be the guarantors for Wilson Muka. David Reng and Pastor Barry Asinao shall be the guarantors for Henry Naoi. Each guarantor shall undertake to see that each applicant complies with all bail conditions by pledging K2,000.00 each as surety, which is payable in the event that the applicant whose bail they are guaranteeing breaches any of the bail conditions.
   
3. Each applicant shall report to the National Court Crimes Registry Waigani every Monday between the hours of 9 am and 3 pm.
   
4. Each applicant shall prosecute their Supreme Court appeal diligently and attend the Supreme Court on each occasion that their appeal is called for directions hearing, status conference or any other mention of their appeal.
   
5. Each applicant will reside at the place specified in their bail certificate and nowhere else without written approval of a Judge.
   
6. Each applicant shall not leave National Capital District, without prior written approval of a Judge.
   
7. Each applicant shall on a weekly basis attend their church for service and worship.
   
8. Each applicant shall not approach or interfere with any person who was a State witness in their trial in the National Court.
   
9. Each applicant shall not consume alcohol or take any intoxicating drugs whilst on bail.
   
10. Each applicant shall keep the peace and be of good behaviour at all times.
    

Judgment accordingly.

_____________________________________________________________
Luthers Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyer for the Respondent