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State v Kikala [2023] PGSC 15; SC2355 (22 February 2023)

SC2355


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SC APP NO. 10 OF 2022


THE STATE
Applicant


AND


PHILIP KIKALA
Respondent


Waigani: Kariko, Bona and Berrigan JJ
2022: 15th December
2023: 22nd February


APPEAL – APPLICATION TO DISMISS FOR WANT OF PROSECUTION – Order 7, Rule 48, Supreme Court Rules – Principles applying in criminal proceedings – Inordinate delay established – No reasonable explanation for the delay – Appeal and leave for appeal dismissed.


APPEAL – REVOCATION OF BAIL – S 21, Bail Act – Supreme Court bail granted pending appeal – Bail revoked upon dismissal of appeal.


APPEAL - FORFEITURE OF BAIL SURETIES – Ss 19, 22, Bail Act – Significant, repeated and ongoing failure to comply with bail obligations – Respondent’s bail monies and those of his guarantors forfeited.


In May 2017 the Respondent was convicted of misappropriating more than K1.1m of State monies whilst being the Member of Parliament for the Laigap-Porgera Open Seat in Enga Province. In November 2017 he was sentenced to seven years of imprisonment to be suspended upon restitution. He lodged an appeal, and simultaneously an application for leave to appeal, against conviction. In May 2018 the respondent was granted bail by the Supreme Court pending his appeal, including on condition that he take all necessary steps to prepare and prosecute his appeal by 2 November 2018. The appellant failed to do so. At the time of hearing of the application in December 2022 the appeal book was yet to be complied. The appellant failed to take any further steps to progress the application for leave to appeal and failed to appear when the matter was before the Court. The appellant also failed to comply with several bail obligations, including the requirements that he reside at a particular place and not leave the National Capital District without leave of the Court. He ceased complying with his reporting condition on 3 December 2018. On 20 September 2022 the Public Prosecutor filed an application to have the appeal and application for leave to appeal dismissed for want of prosecution pursuant to Order 7, Rule 48 of the Supreme Court Rules. The Public Prosecutor also sought revocation of the Respondent’s bail and the forfeiture of his bail monies of those of his guarantors, pursuant to ss 21 and 22 of the Bail Act, respectively.


Held:


(1) The power of the Court to dismiss for want of prosecution pursuant to Order 7 Rule 48(a) is discretionary: Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 5. The onus lies on the applicant to establish delay. Once established the burden shifts to the respondent to provide an explanation for the delay and demonstrate a readiness to prosecute the appeal: Tulapi v Alu (2011) SC1177. The essential question to be determined is whether there is a reasonable explanation for the delay: Joshua Kalinoe v Paul Paraka (2007) SC874.

(2) The right of a convicted person to have his conviction reviewed by a higher court or tribunal pursuant to s 37(15) of the Constitution must be exercised according to law. This includes in compliance with Order 7 Rule 48 of the Supreme Court Rules and the case law governing it: Bernard Juali v The State (2011) SC667.

(3) A lawyer’s negligence or failure to take appropriate steps does not excuse an appellant from prosecuting his or her appeal with due diligence. In determining whether an appellant has provided a reasonable explanation for delay in a criminal case it is relevant to consider whether the appellant has done all that he or she could reasonably be expected to do to prosecute the appeal. Where an appellant shows that the delay was caused by the failure of his/her lawyer alone the Court should be slow to dismiss for want of prosecution: Bernard Juali, supra.

(4) A Court shall consider whether bail should be revoked when it is alleged that there are reasonable grounds for revoking bail. The Court may revoke bail upon such an application if, after hearing all the evidence, it is satisfied that the circumstances so require it: s 21 of the Bail Act.

(5) The Court may forfeit the whole or part of the security given by a person granted bail in the event that they contravene or fail to comply with their bail obligations: s 22 of the Bail Act.

(6) The Court may order that monies lodged or promised by a guarantor be paid to the State in the event that the person granted bail fails to appear at the time and place set for his trial or fails to comply with his conditions of bail: s 19(7) of the Bail Act.

(7) There was an inordinate delay of almost five and half years in the prosecution of the appeal and the application for leave to appeal. There was no reasonable explanation for the delay. The application under Order 7, Rule 48(a) was upheld and the appeal and leave to appeal were dismissed.

(8) The breaches of the appellant’s bail obligations were significant, repeated and occasioned over a period of years, warranting forfeiture of the appellant’s bail monies and those of his guarantors.

Cases Cited


Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 5
Tulapi v Alu (2011) SC1177
Joshua Kalinoe v Paul Paraka (2007) SC874
Dan Kakaraya v Somare & Others (2004) SC762
PNG Nambawan Trophy Ltd v Dynasty Holding Ltd (2005) SC811
Vele v Henao (2011) SC1110
Kavi v Australia and New Zealand Bank Ltd (2020) SC1951
Magellan Properties Ltd v Steamships Trading Company Ltd (2016) SC1518
Ilai v Yasma (2019) SC1857
Koringa v National Broadcasting Commission (2019) SC1803
Kuima Security Services Ltd v Kikora (2021) SC2113
Monogenis v O’Brien (2022) SC2300
Bernard Juali v The State (2011) SC667
Norr v Ikamata [2005] SC815
Nicholas v Commonwealth New Guinea Timbers Ltd [1986] PNGLR 133
The State v Lance Moha (2010) N3977


References Cited


Section 37(15), Constitution
Order 7, Rule 48, Supreme Court Rules
Sections 17, 19, 21, 22, Bail Act


Counsel


Mr D. Dusava, for the Applicant State
Mr L. Siminji, for the Respondent


DECISION ON APPLICATION


22nd February, 2023


  1. BY THE COURT: The Respondent, Philip Kikala, was convicted and sentenced on charges of misappropriation in 2017. He has been on bail pending appeal since May 2018. The Public Prosecutor applies to dismiss the Respondent’s application for leave to appeal conviction, and his appeal against the same conviction, for want of prosecution pursuant to Order 7 Rule 48(a) of the Supreme Court Rules. The Public Prosecutor also seeks revocation of the Respondent’s bail and the forfeiture of his bail monies and those of his guarantors.

BACKGROUND


  1. On 19 May 2017 the Respondent was convicted following trial in the National Court by Salika DCJ on four counts of misappropriating State monies totalling K1,107,100 whilst the sitting Member of Parliament for the Lagaip-Porgera Open Seat in Enga Province. The matter was adjourned for sentence and the Respondent remanded into custody. The date is not clear but it appears that within the requisite period, and apparently labouring under some misapprehension, the Respondent’s lawyers, NiuAge Lawyers, simultaneously filed an application for leave to appeal against conviction on questions of fact alone, SCRA No 28 of 2017, and an appeal against conviction, SCRA No 29 of 2017 on the basis of errors of mixed fact and law. It was intended that once leave was granted the proceedings would be consolidated. On 21 June 2017 the Respondent applied to the Supreme Court to stay sentencing by the lower court pending determination of the appeal. The Supreme Court referred that application to the trial judge for determination. On 2 November 2017 Salika DCJ refused the application and proceeded to sentence the Respondent to 7 years of imprisonment in light labour, to be wholly suspended upon full restitution at any time.
  2. The Respondent subsequently applied to the Supreme Court for bail pending the appeal, which was granted by Batari J on 25 May 2018 on the following conditions:
    1. The appellant/prisoner be granted bail on K10,000 cash condition, to be paid prior to being released from prison.
    2. Tony Tambi and Tom Keso shall be the guarantors who shall undertake to see that the applicant attends to all his appeal court proceedings and complies with all his bail conditions by also paying K5000 as surety each before the applicant/prisoner is released from prison.
    3. The applicant/prisoner shall report to the Supreme Court Registry at Waigani at the beginning of every Supreme Court Calendar month between the hours of 8.00 am and 4.00 pm.
    4. The applicant/prisoner shall attend in person or by his lawyer at the Supreme Court Directions hearing whenever the Court sits for that purpose at Waigani until completion of the Directions proceedings.
    5. The applicant/prisoner shall reside at Section 506 Allotment 55 Rainbow Estate, Gerehu, National Capital District, at all times and nowhere else without written approval of a Supreme Court Judge or the Supreme Court.
    6. The applicant/prisoner shall not leave his place of residence at Gerehu or the National Capital without prior written approval of a Supreme Court Judge or the Supreme Court.
    7. The applicant/prisoner shall take all necessary steps to prepare and to prosecute his appeal on before or by the date of the first anniversary of his sentence being 2 November 2018.
  3. On 20 September 2022 the Public Prosecutor filed the application now before the Court. The application was served on the Respondent on 5 October 2022.

ORDER 7, RULE 48, SUPREME COURT RULES


  1. Order 7 Rule 48 of the Supreme Court Rules provides:

“Where an appellant has not done any act required to be done by or under these rules or otherwise has not prosecuted his appeal with due diligence, the court may—

(a) order that the appeal be dismissed for want of prosecution;

(b) fix a time peremptorily for the doing of the act and at the same time order that upon non compliance, the appeal shall stand dismissed for want of prosecution, or subsequently, and in the event of non compliance, order that it be so dismissed; or

(c) make any other order that may seem just.”

  1. The principles governing Order 7 Rule 48(a), and its predecessor Order 7 Rule 53, are well established in many Supreme Court authorities starting with Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 5. The power of the Court to dismiss is discretionary. The onus lies on the applicant to establish delay. Once established the burden shifts to the respondent to provide an explanation for the delay and demonstrate a readiness to prosecute the appeal: Tulapi v Alu (2011) SC1177.
  2. As observed in the oft cited case of Joshua Kalinoe v Paul Paraka (2007) SC874 at [17] to [20] the essential question is whether there is a reasonable explanation for the delay:

“This rule relates to diligent prosecution of an appeal, thus the time taken to prosecute the appeal is of essence. See Dan Kakaraya v Somare & Others (2004) SC 762. See also PNG Nambawan Trophy Ltd v Dynasty Holding Ltd (2005) SC 811. Thus if an appellant has delayed in prosecuting his appeal the appeal may be dismissed for want of prosecution unless there are reasonable explanations by the appellant for such delay. Delays and lack of due diligence in prosecuting an appeal may arise under various circumstances...

Turning to the requirements of Order 7 r 53 (a), the question is: Did the appellants fail to do any act required to be done under the Rules to prosecute their appeal or otherwise had not prosecuted their appeal with due diligence which would warrant, this Court to dismiss the appeal for want of prosecution?”

See also Kavi v Australia and New Zealand Bank Ltd (2020) SC1951; Vele v Henao (2011) SC1110; Magellan Properties Ltd v Steamships Trading Company Ltd (2016) SC1518; Ilai v Yasma (2019) SC1857; Koringa v National Broadcasting Commission (2019) SC1803; Kuima Security Services Ltd v Kikora (2021) SC2113; Monogenis v O’Brien (2022) SC2300 and the many other cases adopting this statement.


  1. Overwhelmingly, applications under Order 7 Rule 48(a) are brought in civil proceedings. The essential question remains the same, however, regardless of the fact that this application concerns an appeal against a criminal conviction.
  2. Section 37(15) of the Constitution provides that “[e]very person convicted of an offence is entitled to have his conviction reviewed by a higher court or tribunal according to law”. On its face, the right under s 37(15) is not absolute. The right must be exercised according to law. That law includes Order 7 Rule 48 and the case law applying it. It is not suggested otherwise. It is also well established that a person may lose their right unless they act promptly to exercise or protect it. Here we adopt the comments of Sevua and Kandakasi JJ in Bernard Juali v The State (2011) SC667:

“[F]undamentally, the right conferred by s 37(15) of the Constitution has to be exercised according to law. In other words, that right or any other right for that matter has to be exercised “according to law”. That includes the procedural rules such as O. 7 r. 53 and the case law built around them. In addition, there is the well-known principle that unless one takes steps promptly to exercise his rights and or to protect a possible breach of his rights he can lose his rights. In the context of an appeal, lodging an appeal does not entitle an appellant to sit on it for as long as he likes. The onus is always on him to prosecute his appeal with due diligence. A failure to do so attracts a dismissal of the appeal to bring about finality in litigation, unless there is a very good reason for any delay in discharging that obligation.”


REVOCATION OF BAIL AND FORFEITURE OF SECURITY


  1. The Bail Act contains a number of provisions governing the revocation of bail and the forfeiture of bail monies. The powers under these provisions are discretionary and distinct.
  2. Section 21 of the Bail Act relevantly provides (emphasis ours):
    1. REVOCATION OF BAIL.

(1) Where it is alleged that there are reasonable grounds for revoking bail granted to a person and the person appears or is brought before a court, the court shall consider whether the bail should be revoked.

(2) If, after hearing all the evidence including that of the person granted bail and his witnesses (if any), the court is satisfied that the circumstances so require, it may–

(a) revoke the bail, discharge the person from his bail obligations and commit the person to a place of confinement; or

(b) subject to Subsection (3), vary the conditions of the bail.

(3) Where there is a guarantor for the person granted bail, a court shall not impose conditions of bail more onerous on the guarantor than the existing conditions of bail without first obtaining the consent of the guarantor.

  1. There are two parts to s 21 of the Bail Act. A Court shall consider whether bail should be revoked when it is alleged that there are reasonable grounds for revoking bail. The Court may revoke bail upon such an application, but only if, after hearing all the evidence, it is satisfied that the circumstances so require it.
  2. Reasonable grounds for revoking bail obviously include a failure of a person to comply with his or her obligations under s 17 of the Bail Act, that is to appear as and when required during the course of their proceedings and to comply with any conditions of bail imposed under s 18 of the Act.

17. OBLIGATIONS OF PERSON GRANTED BAIL.

A person granted bail–

(a) shall appear at the time and place specified by the bail authority and at every time and place to which, during the course of the proceeding the hearing may be from time to time adjourned; and

(b) shall comply with all conditions of bail fixed under Section 18.

  1. For our purposes, s 18 provides:

18. BAIL MAY BE GRANTED SUBJECT TO CONDITIONS.

(1) Subject to this section, a bail authority may grant bail to a person subject to conditions, including conditions to be complied with before release from custody,...

  1. Considerations should not be confined, however, to the requirements of ss 17 and 18. It is neither necessary nor appropriate to set out all the circumstances which might constitute a reasonable ground for revoking bail. Any matter which demonstrates that a person is unlikely to appear at his or her proceeding, or is a potential threat to the community whilst on bail, or otherwise threatens to interfere with the timely and effective conduct of the judicial proceeding may constitute a reasonable ground for revoking bail.
  2. Several such matters were identified by Kariko J in The State v Lance Moha (2010) N3977 in the context of a trial:

“I also consider that where it is established that since the grant of bail, circumstances have arisen akin to one of the criteria under section 9(1), this may also constitute "reasonable grounds" for revoking bail. For example: accused has talked to prosecution witnesses (likelihood of interfering with witnesses); there has been attempts to physically attack the accused by relatives of a victim (for the accused's own safety that he be kept in custody); the accused has committed a serious offence (likely to commit an indictable offence while on bail); the accused no longer has a permanent or fixed residence (not likely to appear at his trial).”


  1. It is to be remembered, however, that the question to be ultimately determined by the Court is whether the circumstances established require that bail be revoked (or otherwise that the conditions of bail be varied).
  2. On the matter of forfeiture, s 22 of the Bail Act provides that a Court may make an order forfeiting the whole or part of the security given by a person granted bail when he or she contravenes or fails to comply with their bail obligations (emphasis ours):
    1. FORFEITURE OF SECURITY.

(1) Where a person granted bail contravenes or fails to comply with his bail obligations, a court may make an order forfeiting the whole or part of the security given by him to secure his bail obligations.

(2) Subject to Subsection (3), where an order is made under Subsection (1), the order–

(a) in the case of money undertaken to be paid in the event of a breach or contravention of the bail obligation–shall be deemed to be a judgement of the court that the person pay to the State a sum not exceeding the sum undertaken to be paid; and

(b) in the case of a deposit–may authorize payment of the whole or part of the deposit into the Consolidated Revenue Fund.

(3) A person who is affected by an order under Subsection (1) may, within 14 days after the making of the order, apply to the court making the order for variation or revocation of the order.

(4) The court after hearing an application under Subsection (3) may make any order it considers just in the circumstances.


  1. The Bail Act also empowers a Court to make orders of forfeiture against a guarantor. Under s 19(1) a guarantor undertakes to ensure that a person granted bail abides by his conditions of bail. A guarantor may be required under s 19(5) to lodge a surety, or undertake to pay an amount, for this purpose. S 19(7) of the Bail Act empowers the Court to order that those monies or any part thereof, whether lodged or promised, be paid to the State in the event that the person fails to comply with his or her bail obligations.
  2. Section 19 relevantly provides:
    1. GUARANTORS.

(1) A bail authority may require as a condition of bail that no more than two guarantors approved by it undertake to see that the person granted bail appears at the time and place set for his trial and complies with the condition (if any) of his bail...

(5) A bail authority may require a guarantor–

(a) to lodge an amount of money in support of his undertaking; or

(b) to undertake to pay the State an amount of money if the person granted bail fails to appear at the time and place set for his trial or comply with the conditions of his bail...

(7) If the person granted bail fails to appear at the time and place set for his trial or fails to comply with the conditions (if any) of his bail the court dealing with his matter may order–

(a) that the sum of money or part of it lodged by the guarantor be paid to the State; or

(b) that the guarantor pay to the State the amount or part of the amount he undertook to pay under Subsection (5).

CONSIDERATION


  1. There is no dispute that there has been a delay of more than five and a half years since the Respondent filed his appeal and application for leave to appeal. Neither the appeal book nor even its index is yet to be compiled. The Respondent’s assertion in his affidavit of 21 October 2022 that he has compiled a draft appeal book which is with the Public Prosecutor for certification is at best erroneous. At the time of hearing two months later, work to compile the appeal book was still underway.
  2. As for the application for leave to appeal, it appears that no steps have been taken by the appellant or his lawyers to progress the application since it was filed. Evidence produced by the Public Prosecutor establishes that the Respondent failed to appear before the Supreme Court on at least four occasions between February and April 2019 for the hearing of the application before the matter was adjourned generally to the Registry.
  3. On its face the delay in this case is not just substantial but inordinate. The Respondent concedes that he has failed to progress his appeal with due diligence but submits that the delay was due to circumstances beyond his control, namely the inaction of his lawyers and his ill health. We reject these contentions.
  4. It is well established that a lawyer’s negligence or failure to take appropriate steps does not excuse the need to comply with the rules or requirements of any proceeding. It does not excuse an appellant from prosecuting his or her appeal with due diligence. In such cases a person may have a claim against their lawyer for professional negligence: Bernard Juali, supra; see also Kavi, supra at [10] which sets out some of the numerous authorities in this regard in detail.
  5. It is important to recognise, however, that a claim in negligence provides limited recourse for a person who has been convicted or incarcerated. In determining whether an appellant has provided a reasonable explanation for delay in a criminal case it is relevant to consider whether the appellant has done all that he or she could reasonably be expected to do to prosecute the appeal. Here we adopt the comments of the majority in Bernard Juali, supra:

“We are of the view that, where an appellant, again as in the present case, fails to provide any explanation for failing to prosecute his appeal with due diligence, the negligence of his lawyer should not be used as the basis to avoid a dismissal of his appeal. If however, the appellant provides evidence of what he has done, which clearly shows that there is nothing else he could have done, and the delay was caused entirely by his lawyer, the Court should be slow to dismiss an appeal for want of prosecution.”


  1. In this case no adequate explanation has been given for the delay. It is clear that both the appellant and his lawyers failed to prosecute the matter with due diligence. Both failed to ensure the hearing of the appeal by 2 November 2018 and failed to take any steps to progress the application for leave. At the time of the hearing of this application the appeal book was yet to be compiled. It appears that NiuAge Lawyers did nothing at all to progress the matters after that date. The appellant says that he could not progress the matter as he could not pay his lawyers or retrieve his files but that is no excuse. Copies of the applications and the transcript, which had been obtained in 2017, could have been obtained from the court file. The appellant did not discontinue his lawyers’ services until two years later on 30 June 2020 when he says that his family settled his K18,000 legal bills. He says that he then engaged another private law firm, Lomai and Lomai Attorneys but there is no documentary evidence to establish that fact and there is no evidence that those lawyers did anything at all to progress the matter. It is also difficult to understand how the appellant envisaged he would be able to pay for their services given his claims of impecunity. A person cannot blame their lawyers for inaction if they are not able to meet their legal fees. There are many appellants who progress their own appeals without assistance from any lawyer and whilst in custody. Moreover, it was only after the Public Prosecutor served his application of 20 September 2022 on the appellant on 5 October 2022 that the appellant took any action. Even then it took him more than two weeks to apply to the Office of the Public Solicitor for legal aid on 22 October 2022.
  2. We also reject the submission that the appellant’s medical condition provides a reasonable explanation for the delay. The appellant suffers from stage four chronic kidney disease. It is a serious and chronic disease which requires regular review and treatment, which for the most part has been received at the Port Moresby General Hospital, although the materials show that the appellant has been treated from time to time in private hospitals both here and overseas, including Australia and Malaysia. It is also a condition, however, that the appellant has managed for many years and there is no evidence that it renders him incapable of progressing his appeal.
  3. For similar reasons we are not persuaded that the threat posed to the appellant’s health by Covid reasonably explains his inaction. He claims that this prevented him from progressing the matter in the first half of 2020 but the appellant had already failed to act diligently for more than three years by that stage and a further two years have lapsed since then, during which time it must be observed that the appellant has been well enough to provide services to the State for various purposes, including its 2021 National Census exercise.
  4. Finally, the fact that the appellant paid K270,000 in restitution in 2017 is of no relevance to his failure to prosecute the appeal, particularly at this late stage.
  5. It has been submitted that the appellant’s conduct whilst contumelious was not intentional and that in the circumstances the Court should not dismiss the matter for want of prosecution applying Norr v Ikamata [2005] SC815 approving Nicholas v Commonwealth New Guinea Timbers Ltd [1986] PNGLR 133. It is difficult to understand how the Respondent might have been contumelious whilst not intentional but putting that aside, it appears to us that the statement in Nicholas is sometimes misunderstood. The full statement approved by the Supreme Court in Norr from two English cases was:

“That the power of the Court to dismiss an action for want of prosecution should be exercised only when the plaintiff’s default had been intentional and contumelious or where there had been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a substantial risk that a fair trial would not be possible or to service prejudice to the defendant.”


  1. An appellant is under an obligation to prosecute the appeal with due diligence and “see that such proceedings reach finality”: Norr. As it and subsequent authorities demonstrate, failure to do so will of itself constitute intentional and contumelious conduct even if, in the words of the Court in Norr, it is simply “to let the sleeping dog lie”. It is also worth bearing in mind that in Norr the appeal was dismissed for want of prosecution on the basis that the appellants had taken 10 months to settle the index to the appeal book, and failed to appear on at least two occasions, writing a letter on one occasion to seek an adjournment.
  2. It is our view that it more useful when considering applications under Order 7, Rule 48(a) to focus, as the weight of authority does, on the essential question of whether there is any reasonable explanation for the delay.
  3. Whilst some greater leniency might be given when considering what is reasonable, it should not be forgotten that finality of litigation is also very important in the context of a criminal appeal. It is important to the State, those interested in the particular proceedings concerned, and to the maintenance of confidence in the administration of justice and the rule of law generally.
  4. To our mind that is the end of the matter. The Respondent is an intelligent and highly educated man. He has a Bachelor of Economics and held a distinguished career as the Managing Director of the National Housing Corporation and the Livestock Development Corporation before becoming a Member of Parliament. He can have been under no misapprehension as to his obligations to progress his appeal. It is clear to us that the Respondent had no intention of progressing his appeal and was content to sit on his hands whilst on bail until threatened with the prospect of imprisonment.
  5. Our finding is only strengthened when regard is had to the Respondent’s repeated breaches of several bail obligations. In our view these are relevant not only on the matter of revocation and forfeiture but demonstrative of his failure to act with due diligence and his disregard for the appeal process.
  6. Putting aside his failure to prosecute the appeal by 2 November 2018 in compliance with Order 7 of his bail conditions, the Respondent failed to appear for the hearing of his application for leave to appeal on several occasions. He left his place of residence at Gerehu without leave of the Court, contrary to Order 5, and ceased reporting to the Supreme Court Registry on 3 December 2018, contrary to Order 3. We do not accept the Respondent’s assertion that the Supreme Court Registry was unable to locate his form for reporting, which was produced following a file search by the Office of Public Prosecutor on 16 August 2022. Even if we were to accept his assertion, there is no evidence that he made any attempts to rectify the situation and by his own admission he ceased reporting several years ago. In addition, it appears from the material, including medical reports produced by the appellant himself that he has been frequenting Goroka without leave of the Court in breach of condition No 5.
  7. In all the circumstances we uphold the State’s application to dismiss the appellant’s appeal and his application for leave to appeal for want of prosecution. As bail was granted pending the appeal, which now stands dismissed, it follows that the circumstances require that the appellant’s bail be revoked.
  8. It is also clear from our findings that we are satisfied that the appellant has failed to comply with his bail obligations for the purpose of s 22, Bail Act. Unlike bail before conviction for all offences but wilful murder and treason there is no entitlement to bail following conviction and pending appeal. Bail in such circumstances is rarely granted. The breaches by the appellant were significant, repeated and occasioned over a period of years. As above, they demonstrate a blatant disregard for the appeal process and orders of the Court. Forfeiture of the appellant’s bail monies in the circumstances is entirely appropriate.
  9. Similarly, in the absence of any evidence from the appellant’s guarantors, we find that they have failed in their undertaking to ensure that the appellant abide by his conditions of bail pursuant to s 19, Bail Act. Forfeiture is not only appropriate in the circumstances but necessary to inform all potential guarantors of the serious responsibility they undertake and the consequences of failing to do so.

ORDERS


  1. We make the following orders.

________________________________________________________________
Office of the Public Prosecutor: Lawyers for the Applicant
Office of the Public Solicitor: Lawyers for the Respondent


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