Kemakeza v Regina [2012] SBHC 40; HCSI-CRC 110 of 2012 (3 May 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)

Criminal Jurisdiction

MARK KEMAKEZA

-v-

REGINA

Date of Hearing: 30th April 2012
Date of Judgment: 3rd May 2012

Mr. Nimepo for the Applicant.
Ms Driu and Ms Joel for the Respondent.

RULING

Introduction.

1. This is an application by the applicant, Mark Kemakeza, for bail pending the hearing of his appeal on the 11th May 2012. The application was filed on 13th April 2012 and supported by an affidavit sworn by himself. Other supporting affidavits were sworn by Martin Sopage, Douglas Ete, Benjamin Newyear and Selwyn Vasuni filed the same day.
   

Background.

2. The applicant was convicted on 21st February 2012 by the Central Magistrates Court under section 278(1)(c)(i) of the Penal Code of converting $280,000.00 of RCDF funds and sentenced to 14 months imprisonment. He was remanded in custody that same day awaiting sentence. He was sentenced on 13th March 2012. If he is granted a one third remission of his sentence, he is expected to be released on or about the 29th November 2012.
   
3. On 20th March 2012, the applicant filed an appeal against his conviction and sentence. He now applies for bail pending the hearing of that appeal.
   
4. In support of the application, the applicant has filed an affidavit outlining the reason why he should be given bail. The supporting affidavits by Martin Sopage, Douglas Ete, Benjamin Newyear and Selwyn Vasuni did nothing more than indicate their willingness to act as surety for the applicant and to pay into court a total of $30,000.00 to secure his attendance at the hearing of his appeal if bail is granted. Apart from that, their affidavits have not disclosed any reason why bail should be granted to the applicant.
   

Grounds for the application.

5. From the applicant's affidavit, it seems that the only ground for seeking bail is that his appeal will likely not be heard quickly. This ground was raised in ignorance of the fact that the appeal has already been listed for hearing on 11th May 2012.
   
6. Counsel for the applicant came to learn of the actual hearing date only when the application came on for hearing on 24th April 2012. Upon learning of the hearing date, counsel sought an adjournment to Monday 30th April 2012 to enable him amend his submission. That was done and on 26th April 2012, counsel filed a fresh submission.
   
7. From that submission, it appears that only two grounds are now being advanced, the main one being that the appeal against both the conviction and sentence have disclosed arguable points and is likely to succeed. The other ground appears to be that the applicant is sure to appear at the hearing of his appeal and therefore he should be granted bail.
   

The law on bail after conviction.

8. Under section 290 of the Criminal Procedure Code ("CPC"), this court has discretion to grant bail after conviction pending appeal. However, such discretion must be exercised upon existing legal principles.
   
9. In this jurisdiction, these principles have been laid down in a number of cases including Susan Tamana v R[1] ("Tamana"), Lawrence Inito v R[2] ("Inito"), Philip Solodia v R[3] ("Solodia") and, lately, Rodney Hiva v R[4] ("Hiva").
   
10. The first principle, according to these authorities, is that an application for bail after conviction (i.e., bail pending appeal) is not the same as an application for bail before conviction (i.e., bail pending trial). In an application for bail pending trial, the person is prima facie entitled to bail unless it is shown that he should not be granted bail. The reason for this is because of the constitutional guarantee of presumption of innocence under section 10(2)(a) of the Constitution. In such a case, the burden is on the prosecution to show that the person should not be granted bail.
    
11. The situation is rather different in an application for bail pending appeal. In such a case, the person has been convicted of the offence and therefore the constitutional presumption of innocence no longer exists. Hence, in order for the person to be granted bail, the burden is on him to convince the court that the circumstances of his case are such that he should be released on bail despite his conviction and sentence. Unless the person so convinces the court, he is not entitled to bail and the fact that he has appealed against the conviction and/or the sentence is no reason for granting him bail.
    
12. As Muria, CJ, said in Tamana, where he refused a similar application,:
    

"It must be pointed out, however, that the principles to be considered in an application for bail after conviction cannot be treated as the same as those in an application for bail before conviction. The presumption of innocence, which is the guiding principle in criminal cases, no longer exists after a person has been found guilty by a competent court. By the same note, the right of appeal does not revive that pre-conviction presumption of innocence."

13. The second principle is that to grant such application, the applicant must show exceptional circumstances which will justify the court in granting bail. It is for the applicant to show that exceptional circumstances exist. This point was also made in Tamana where Muria, CJ, again said:
    

"It will therefore be a case of exceptional circumstances which will justify the court in granting bail to a person who has been found guilty and convicted".

14. In Inito, this court has laid down three criteria which must be satisfied before an application of this nature can succeed. These criteria are:-
    

[a] there is a possibility that the sentence of imprisonment will be set aside entirely; or,

[b] the sentence is likely to be served completely before the appeal is heard; or,

[c] the case is one of exceptional circumstances. In Tamana, it was said that whatever these exceptional circumstances are, they must those of the case and not of the applicant himself.

15. With respect, I think all these three criteria amount to one and the same thing, that is, they are exceptional circumstances. If there is a possibility that the sentence of imprisonment will be set aside entirely, or if the sentence is likely to be served completely before the appeal is heard, those are exceptional circumstances which would justify granting of bail. The list is not exhaustive and there may also be other circumstances which might be equally forceful so as to justify granting of bail pending appeal. The authorities are also clear that those circumstances must relate to the case and not to the applicant himself[5].
    

Ground for application.

16. In the present case, the applicant has been convicted and sentenced to 14 months imprisonment. He must therefore demonstrate that there are exceptional circumstances which would justify him being released on bail pending his appeal despite his conviction and sentence.
    
17. In his submission, counsel for the applicant has pointed to two grounds as justifying the grant of bail. The first ground is the chances of the appeal being successful. The second ground is the very high chance of the applicant appearing at the hearing of his appeal.
    
18. In relation to the first ground, counsel argues that the question to ask is not that the appeal has a reasonable prospect of success but whether the appeal has raised arguable points. He argues that to justify a grant of bail, it is enough to show that the appeal has raised arguable points.
    
19. In the present case, counsel submits that, not only has the appeal raised arguable points, but there is also a very high chance that the appeals would be successful. Counsel says that one of the appeal grounds in this appeal is that the distribution of the funds which are the subject of the charge against the applicant is a matter which is entirely within the discretion of the applicant and, as such, the Magistrate was wrong in convicting the applicant. Counsel submits that, on the authority of the Papua New Guinean case of State v Kaman[6] ("Kaman"), where a conviction was quashed on the basis that the funds involved in that case were subject to distribution at the discretion of the accused, the appeal by the applicant has a very strong prospect of success.
    
20. Counsel further submits that there is a very high chance that the appeal against sentence will also be successful. He refers to the cases of R v Charles Ashley[7] ("Ashley"), R v Sir Allan Kemakesa[8] ("Allan Kemakeza") and R v John Tebolo[9] ("Tebolo") as authorities confirming the likelihood of success on the appeal against sentence. These cases involved misuse, stealing and conversion of funds by persons in positions of trust. Counsel argues that the sentences imposed in those cases were not more than 2 years and, in some of those cases, part of the sentences were suspended. Counsel argues that this case falls on all four with those cases, hence, a high chance of the appeal against sentence being successful.
    

Prosecution case.

21. The Crown has opposed the bail application and advanced three grounds for its opposition. First, it argues that the principles governing the granting of bail after conviction in this jurisdiction are clear and settled and that the applicant has not discharged the burden of proving the existence of exceptional circumstances to justify the granting of bail. It argues that the question on an application such as this is not whether the appeal has raised an arguable case but whether there is a real possibility that the appeal would succeed. It argues that in this appeal there is no real possibility of the appeal being successful.
    
22. Second, the Crown argues that the appeal itself has been filed out of time and, unless extension of time to appeal is granted, the appeal is null and void, which means that there is no appeal before the court to found this application. Counsel argues that an application for bail after conviction can only be made where there is an appeal before the court and, in this case, there is none.
    
23. Third, the Crown argues that despite the sentences in Ashley, Allen Kemakeza and Tebolo cases, there are other similar cases in which the sentences imposed make it uncertain whether or not the sentence in this case will be set aside entirely. These cases are Dausabea v Regina[10] ("Dausabea"), Una v R[11] ("Una"), Regina v Sukina[12] ("Sukina") and the Allan Kemakeza case referred to earlier. The Crown further argues that the question whether or not the appeal would succeed is an issue which is reserved for the hearing of the substantive appeal and cannot be decided on an application for bail pending that appeal.
    
24. For those reasons, the Crown submits that the application should be refused.
    

Analysis of arguments.

25. I have already outlined the principles governing granting of bail pending the hearing of an appeal in this jurisdiction. I need not repeat them again. Suffice to say that to grant bail pending appeal, exceptional circumstances must be shown before bail can be granted. Such circumstances would include a real possibility that the conviction will be quashed or that the sentence of imprisonment will be set aside entirely or where the sentence is likely to be served completely before the appeal is heard. These circumstances must relate to the case and not to the applicant.
    
26. In this case, while I agree that the appeal has raised arguable grounds, I am unable to say whether or not those grounds will succeed. It is one thing to say that the appeal has raised arguable points, it is another thing to say that those points will succeed.
    
27. However, for my part, I do not agree that bail should be granted simply because the appeal has raised arguable points. That is not an exceptional circumstance. Present authorities favour the position that bail pending appeal should be granted only where the appeal has a real likelihood of success, not where the appeal raises arguable points.
    
28. Counsel for the applicant has referred to the case of Kaman as the basis for his argument that the appeal against conviction has a real likelihood of success. Unfortunately, the facts of that case are slightly different from the present case. In that case, the funds were not used by Kaman for his personal benefit. The funds were in fact used to purchase the materials for which the money was intended. The problem, however, was that Kaman did not distribute the materials to the persons for whom the materials were meant to be given. It appears that at the time the case was brought against him, he was still in possession of the materials. It was for that reason that the court held that he could not be guilty of the offence because the materials were still in his possession and he still had the discretion to give the materials to whoever he chose to give them.
    
29. In the present case, the Magistrate found that the applicant has used the $280,000.00 for his own personal benefit. If the finding of the Magistrate is supported by the evidence then the chances of a successful appeal against the conviction may be in doubt. However, that is an issue to be argued at the hearing of the appeal.
    
30. As for the sentence, the Magistrate has imposed a 14 months custodial sentence. There is no question that the Magistrate had jurisdiction to impose that sentence having regard to the fact that the maximum sentence for the offence of conversion under section 278(1)(c)(i) of the Penal Code is 7 years and the authorities are clear that offences of this nature deserve custodial sentences especially when committed by persons who hold positions of trust. The appeal itself recognises this fact. Ground 2 of the appeal against sentence pleads that "the sentence of 14 months is excessive and be substituted with a lesser term".
    
31. So, the challenge here is not about the custodial nature of the sentence, it is about the length of the custodial sentence. The question, therefore, is whether a challenge as to the length of a sentence is an exceptional circumstance where the custodial nature of the sentence is not challenged. The authorities are clear that to amount to exceptional circumstance, there is a possibility that the sentence of imprisonment will be set aside entirely (my emphasis). It is clear in this case that even assuming the appeal against sentence were to be successful, it is only the length of the sentence which will be affected and not the custodial nature of the sentence. In other words, the imprisonment sentence will not be set aside entirely. Hence, there is no exceptional circumstance here.
    
32. Finally, the question whether or not the applicant will likely answer bail if the application is granted has no relevance in this application. Whether the applicant will appear at the hearing of the appeal is a circumstance that relates to the applicant. It does not relate to the case. It is well established that circumstances personal to the applicant are not relevant on the hearing of applications for bail pending appeal.
    
33. The Crown has also raised the issue of the irregularity of the appeal and suggests that there is no appeal before the court. It submits that that is a point which will be argued at the hearing of the appeal. I do not think it is appropriate to decide this question on this application. I make no decision in regards to that question.
    

Order.

34. However, for the reasons set out above, it is my view that this application should be refused and, accordingly, I so order.
    

THE COURT

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^[1] Unreported judgment in CRC No. 15 of 1995
^[2] [1983] SILR 177
^[3] [2007] SBHC 70.
^[4] CRC 331 of 2011
^[5] Tamana v R Unreported judgment in CRC No. 15 of 1995.
^[6] [1993] PGNC 32; N1177 (8 October 1993).
^[7] [2012] SBHC 10; HCSI-CRC 178 of 2011.
^[8] [2008] SBHC 41; HCSI-CRC 467 of 2007.
^[9] [2010] SBHC 27; HCSI-CRC 217 of 2009.

^[10] [2008] SBHC 30; HCSI-CRC 127 of 2008 (An appeal to the Court of Appeal against this decision was rejected in Dausabea v Regina [SBCA 11; CA-CRAC 20 of 2008).
^[11] Una v Regina [2007] SBHC 17; HCSI-CRC 402 of 2006.
^[12] [1988] SBHC 60; HC-CRC 031 of 1995.