N2515

PAPUA NEW GUINEA

[National Court of Justice]

MP 2 OF 2004

BETWEEN

AARON PULI
Applicant

AND

THE STATE
Respondent

Waigani	:	Sevua, J
2004		:	20th January
&
18th February

CRIMINAL LAW – Practice and procedure – Bail Application – Application after conviction and sentence – Exceptional circumstances must be shown – Arguable grounds of appeal not exceptional circumstances.

Bail Act, s.11

Cases referred to:
John Jaminan v. The State [1983] PNGLR 122
The State v. Robert Yabara [1984] PNGLR 133
Yaki v. The State [1990] PNGLR 513.
Arthur Gilbert Smedley v. The Independent State of Papua New Guinea [1978] PNGLR 452 followed
Rolf Schubert v. The State [1970] PNGLR 394 followed.

Counsel:
B. Takin for Applicant
P. Kaluwin for Respondent

18th February 2004

SEVUA, J	:	The applicant was convicted of wilful murder contrary to s.299 of the Criminal Code on 30th October 2003 and sentenced to life imprisonment on 22nd December 2003. He now applies to be admitted to bail pending his appeal to the Supreme Court in SCRA 91 of 2003.

Mr. Takin, counsel for the applicant has referred to the grounds of appeal set out in paragraphs 3.1 to 3.9 inclusive and 4 of the Amended Notice of Appeal annexed to his affidavit sworn on 12th January 2004 and filed in support of this application.

His submission in the main is that all the grounds of appeal the applicant will rely on in the appeal proper are issues that contain exceptional circumstances which will be tried at the Supreme Court.

Counsel cited John Jaminan v. The State [1983] PNGLR 122; The State v. Robert Yabara [1984] PNGLR 133 and Yaki v. The State [1990] PNGLR 513. However, he submitted that his client’s application can be distinguished from these authorities. In those cases, both the National and Supreme Courts had refused the applicants’ bail pending appeal on the basis that none of those applications had "shown exceptional grounds to convince the Court to grant them bail pending their respective appeals". Mr. Takin confirmed in his submissions that an applicant who has already been convicted and is applying for bail must show exceptional circumstances before he is allowed on bail. That is the principle governing an application for bail following a criminal conviction.

In this application, Mr. Takin, until stopped on his track, went through the grounds of appeal and attempted, what the Court considered, as arguing the merits of the appeal by pointing to what he considered as errors by the trial Judge. Upon must insistence by the Court, he eventually submitted that some of these grounds of appeal are arguable grounds and amount to exceptional circumstances.

Mr. Kaluwin for the respondent opposed the application. He relied on two well known authorities, Arthur Gilbert Smedley v. The Independent State of Papua New Guinea [1978] PNGLR 452 and Rolf Schubert v. The State [1978] PNGLR 394.

I think the law on this issue has already been settled.

In Arthur Smedley (supra) Justice Wilson sitting as the National Court held inter alia that:-

"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. (my emphasis)

Rolf Schubert v. The State [1978] PNGLR 344 followed.

3.	That prima facie the grounds of appeal of an arguable nature does not of itself constitute an exceptional circumstance".

That decision followed another decision of the National Court in Rolf Schubert v. The State [1978] PNGLR 394; where His Honour, Deputy Chief Justice Raine held that; "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" (my emphasis).

In that case, the Court found that exceptional circumstances had been shown however, such circumstances were not shown to the extent that the Court would grant bail to the applicant. In any event, the applicant was granted fourteen days release to put his financial affairs in order.

As I alluded to earlier, the law has been settled and the principle applied in the above cases, which has been adopted and followed in other numerous unreported cases is that, a convicted person who has filed an appeal against his conviction, must show exceptional circumstances in order for him to be released on bail. It is not sufficient to show that the prisoner’s grounds of appeal are arguable or that they are sufficient for the success of his appeal.

These authorities are still very good law and I adopt and follow them here. There is no good reason for departing from them and besides I have not been persuaded to depart from these principles.

There are many good reasons which the Court have, in the past, applied this principle time and again. The Constitutional right to bail available under s.42 (6) of the Constitution does not apply to a convicted prisoner, therefore he is not entitled to bail at all times after conviction. There are very good public policy considerations that this is so.

In this application, the applicant has only relied on his grounds of appeal as sufficient for the Supreme Court to allow his appeal. This is not exceptional circumstances. I find that the applicant has failed to show exceptional circumstances to enable the Court to release him on bail following his conviction and sentence for murder, and whilst awaiting his appeal in the Supreme Court.

The application is therefore refused.
_________________________________________________________________________
Lawyer for Applicant		:	B. T. Gobu & Associates
Lawyer for Respondent	:	Public Prosecutor