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Schubert v The State [1978] PGNC 44; [1978] PNGLR 394 (13 October 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 394 - Rolf Schubert v The State 

[1978] PNGLR 394

N166

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ROLF SCHUBERT

V

THE STATE

Waigani

Raine DCJ

11 October 1978

13 October 1978

CRIMINAL LAW - Practice and procedure - Bail application - After conviction - Conviction by National Court - Exceptional circumstances must be shown - Financial hardship combined with possible danger to health - Applicant admitted to bail for limited period to enable him to clear up his financial affairs and put himself at less risk qua health - Bail Act 1977, s. 11[dlxxxiv]¹.

On an application for bail by an appellant who had been convicted by the National Court of indecently dealing with a girl of nine years, the grounds relied on were that the applicant’s business and taxation affairs had got into a considerable mess requiring his personal attendance, that the applicant’s medical history, including a heart attack in 1976, put him at considerable risk doing hard labour and that there was a reasonable probability that the appeal would succeed:

Held

N1>(1)      A person who has been convicted and lodged an appeal against that conviction and is seeking release on bail pending the hearing of that appeal pursuant to s. 11 of the Bail Act 1977, must, in order to be admitted to bail, show exceptional circumstances.

Re Cooper’s Application for Bail [1961] A.L.R. 584 at p. 585 and Re Ilett [1974] P.N.G.L.R. 49 referred to.

N1>(2)      In the circumstances “exceptional circumstances” had been shown, but not to the extent that bail should be granted up to the hearing of the appeal; a period of 14 days being sufficient for the applicant to clear up his financial affairs and put himself at less risk qua health.

N1>(3)      Accordingly, the applicant should be admitted to bail in the sum of K2000, with one surety of K2000, such bail to be revoked after 14 days.

Bail Application

This was an application for bail pursuant to s. 11 of the Bail Act 1977 by an appellant who had been convicted and sentenced to two years’ imprisonment with hard labour by the National Court on a charge of indecently interfering with a girl of nine years.

Counsel

J A. Griffin, for the appellant.

K. B. Egan, for the State.

Cur. adv. vult.

13 October 1978

RAINE DCJ: This an application for bail by an appellant who was convicted of indecently dealing with a girl of nine years. He was sentenced to two years’ imprisonment with hard labour by Pritchard J He then appealed against the conviction to the Supreme Court and this is therefore the case of a man seeking bail in between conviction and the hearing of his appeal, and for examples of this in Papua New Guinea see Re Ilett[dlxxxv]², Himson Mulas v. The Queen[dlxxxvi]³ and Logalio Piaro and Anor. v. Kumbamung[dlxxxvii]⁴. The application is made to me under the Bail Act 1977 and in particular s. 11 thereof which reads:

N2>“11     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, upon application by or on behalf of the appellant, grant bail pending the hearing of the appeal.”

It goes without saying that this confers a very wide discretion upon the court.

Applications such as this are fairly rare because the authorities both here and in Australia make it quite clear that such applications after conviction are viewed with very great care indeed. Courts are, it seems, reticent to grant them. The situation after conviction is a different one than before conviction, when the presumption of innocence still prevails. However, in Ilett’s case the learned judge hearing the application did grant bail after conviction. With respect to him I would have taken a different course. Indeed, the appeal was later dismissed.

Mr. Griffith, counsel for the applicant, really relies on three matters. The major matter that he relies upon is the fact that the applicant’s business and taxation affairs are said to have got into a considerable mess. A very large amount of money is said to be involved. The applicant asserts that it is essential that he should attend to these matters himself. This does not only involve paper work but it also involves the disposition of substantial trade chattels.

The applicant has a well-known firm of accountants who look after his affairs but as I understand his case he himself needs to be around in order to give the accountants, and, in addition to them, his bankers, substantial assistance. His wife was fairly closely associated with him in some way in business affairs but apparently she has left him and gone to Australia. It seems that there are differences between the applicant and his wife, and it may well be that they stem from the incident out of which the conviction arose. Again, as I understand it, were the wife here in this country it might well be that she could have sorted out the business problems. These business problems involve, inter alia, large sums due and owing to the Chief Collector of Taxes. No objection has yet been lodged against a very substantial assessment that has been received but it seems that one is envisaged.

Mr. Egan of counsel for the State put in no material which would cast any doubt on the factual matters lodged in support of this application, nor did he indicate from the Bar table that there was anything unreasonable about them. This being so, I accept what is contained in the affidavit of the solicitor for the applicant for the purposes of this application. He is employed by a responsible firm.

Mr. Griffin also relies on a medical report by Dr. Nelson who has been a witness in my court on a number of occasions and whom I regard as a good doctor, and a thoroughly responsible and decent person. He says that in December, 1976 the applicant experienced a fairly severe myocardial infarction and that he was “really very ill for several days”. He said that for a couple of months after the heart attack the applicant experienced slight angina pectoris. The doctor thinks that the applicant has made a good recovery but points out that there will be a damaged area of heart muscle which will have been replaced by scar tissue. The doctor believes that the applicant “can adequately cope with the exertion of his usual life style” but goes on to say “I am sure that he has some deficit, for which reason I am sure that hard labour ... could seriously endanger his health if not his life”.

I think I am correct in saying that apart from hard physical labour having a deleterious effect as stated by Dr. Nelson, undue stress could also have a deleterious effect on the applicant’s heart and nothing produces stress more than nagging worry about business and taxation problems, and here this is aggravated by the conviction and sentence. The applicant is in his early fifties.

In Ilett’s case Lalor J used the words “special circumstances”, but the balance of judicial opinion seems to require that an applicant such as this must show that there are matters which constitute “exceptional circumstances” before bail is allowed between conviction and appeal. See for instance Re Cooper’s Application for Bail[dlxxxviii]⁵, a decision of Fullagar J Speaking for myself, not being bound by what fell from Lalor J or, for that matter, by what fell from Fullagar J, I am of opinion that exceptional circumstances must be shown. Of course, one judge’s “special circumstances” may be another judge’s “exceptional circumstances”.

N1>Mr. Griffin also relies upon the fact that there is a reasonable probability that the appeal could succeed. I do not think that he put it in these terms but really what he is saying is that this appeal is not a frivolous one. It is not for me to make up my mind at this point of time about the chances of the appeal, it would be wrong to do so in the absence of full argument. Indeed, it might be that I sit on the appeal myself. However, in view of the s. 103 statement made by the applicant I say, tentatively only, that the appeal does not look a very easy one to me, and I am not of opinion that the chances of success are so great that exceptional circumstances favourable to the applicant are constituted.

In view of what I propose to do I do not deem it necessary to examine the law in depth. However, some law was quoted to me in addition to the cases already referred to, and I simply set it out. It is R. v. Carbone[dlxxxix]⁶.

See also an article, Bail: An Examination by Douglas Brown in (1971) 45 A.L.J 193, in particular at pp. 194 and 199.

In my opinion, not without some hesitation, exceptional circumstances have been made out but not to the extent that I am prepared to grant bail right up to the hearing of the appeal. I grant the applicant bail in the sum of K2,000.00 with one surety of K2,000.00 and I indicate that I will revoke this order as from Saturday 28th October, 1978 at 10.00 a.m. My reason for revoking the bail on that day is that in my opinion the 14 days I give the accused bail should be sufficient for him to get on top of his difficulties and give proper directions to his accountants and bankers. It will give him time to appoint an Attorney under Power and to execute documents permitting his attorney to draw on his bank accounts. The applicant is free to leave Port Moresby because this will be necessary for him to attend to his business. I suggest to him that he returns to Port Moresby on the 27th and see his solicitors who will make arrangements for him to return to Bomana Corrective Institution the following morning. I will make the order on 27th October.

At the expiration of the 14 days in my opinion there will no longer be any special circumstances in existence which would allow the accused to suggest that special circumstances exist.

Orders accordingly.

Solicitors for the applicant: Francis & Francis.

Solicitor for the State: K. B. Egan, Public Prosecutor.