Tongayu v State [2022] PGSC 42; SC2243 (25 February 2022)

SC2243

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP N0. 14 0F 2022

IN THE MATTER of an Application for Bail made pursuant to Section 13(2) of the Bail Act

ALEX TONGAYU
Applicant

AND:
THE STATE
Respondent

Waigani: Batari J, Toliken, Gora JJ
2022: 23^rd, 25^th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail application pending appeal against conviction – fresh application after earlier refusal of bail by a single judge – form – whether substantial compliance with form under rr 3, 5 Bail Rules 2021 – Need to show exceptional circumstances warranting bail

On an application for bail pending appeal against conviction and sentence on forgery.

Held:

1. The application is incompetently filed by failing to set out the grounds for bail as required under s 13 (2) of the Bail Act and r. 5 of the Bail Rules 2021.
   
2. No exceptional circumstances have been shown, and therefore bail is refused.
   

Cases cited:

Rolf Schubert v The State [1979] PNGLR 66
Himson Mulas v The Queen [1969-1970] PNGLR 82

Counsel:

Mr Alex Tongayu, the applicant in Person
Mr D Kuvi, for the respondent

Ruling of Application for Bail

25^th February, 2022

1. BY THE COURT: This is an application for bail pending an appeal. The application is made to the full Court the applicant having been previously refused bail by a single judge of the Supreme court.
   
2. Alex Tongayu was convicted of two counts of forgery and sentenced on 5 August 2021 to three years imprisonment by the National Court. He has appealed against both his conviction and sentence.
   
3. Pending the hearing of the appeal, the appellant applied for bail under s 11 of the Bail Act (Ch No 430) before Manuhu J sitting as a Judge of the Supreme Court pursuant to s 10 (1) (c) of the Supreme Court Act (Ch No 37). His Honour refused bail. According to the affidavit of the appellant, his Honour concluded that the appellant failed to show any exceptional circumstances to entitle him to be on bail.
   
4. The application is before this Court under s 10 (2) of the Supreme Court Act which entitles the appellant to apply to the Supreme Court for the matter to be determined by the Full Supreme Court. It is a fresh application.
   
5. So, the appellant is not confined to the evidence that was given before Manuhu J. He is at liberty to call any other evidence which he wishes to call including that which he relied on in his earlier application.
   
6. However, the evidence must be relevant evidence based on or driven by the terms or grounds the appellant relies on as constituting exceptional circumstances that would entitle him to bail. The exceptional circumstances must be precisely set out in the application for bail in brief and with clarity to inform the State respondent what to defend and the Court, issues to be determined.
   
7. In the Application for Bail form in this case, the appellant merely states the jurisdictional basis for grant of bail under sections 11, 13 (2) and 19 of the Bail Act. He failed to set out or plead the grounds comprising the “exceptional circumstances” for grant of bail after conviction.
   
8. This may possibly be a determinative omission as it raises the issue of competence of the bail application. Rule 5 of the Bail Rules 2021 requires the application for bail to be filed in Form 1. The form sets out numerous, but plain simple steps to follow in applying for bail. One part requires the reasons or grounds for bail to be set out. Another section of the form requires the applicant where bail has been previously refused, to give full details of the refusal and annexed a copy of the certificate of refusal.
   
9. The application before this Court is clearly non-compliant with the Bail Rules. It failed to conform with the essential requirements of the rules and there had been no application to waive compliance or to amend the Bail Application.
   
10. Under r 3 of the Bail Rules, an incorrect or inadequate completion of the application form may be saved by substantial compliance. In this case, there has been no substantive compliance. The application is incompetently before this Court. It is bound to be dismissed.
    
11. Before we make the final orders, it is worth mentioning, that this is not an ordinary or normal application for bail. It is an application for bail after conviction. In Rolf Schubert v The State [1979] PNGLR 66 it is cautioned, that “applications after conviction are rare as authorities both in Papua New Guinea and Australia make it clear that they are viewed with great care.”
    
12. This is because the situation after conviction no longer involves the presumption of innocence which existed in a situation before conviction. The appellant must therefore show there are “exceptional circumstances” which warrant grant of bail. It is also settled that the appellant who appeals to the Supreme Court after conviction will be granted bail pending the appeal only in “very exceptional circumstances”: Himson Mulas v The Queen [1969 - 1970] PNGLR 82.
    
13. Even though the appellant failed to set out in the application form, the grounds constituting, “exceptional circumstances”, he relies on the evidence which consists of an affidavit of Mr Alex Tongayu, an affidavit of Mr Ivan Pomaleu and an affidavit of Mr Robin Kawat. The appellant also refers to the audio recording of the Supreme Court proceedings in which he was refused bail. This is not made available to the Court as part of the evidence in support of the application.
    
14. We need not decide the bail application on the evidence and merits because of the position we have reached on the application form. It is suffice to observe, that the evidence asserting the grounds for bail do not form or sufficiently meet the requisite for exceptional circumstances.
    
15. Accordingly, bail is refused for being incompetently filed in contravention of r 5 of the Bail Rules.
    
16. The appellant is at liberty to reapply for bail under Form 1 of the Bail Rules.

___________________________________________________________
Appellant in Person: Alex Tongayu
Public Prosecutor: Lawyer for the Respondent