N4580

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No. 360 of 2012

BETWEEN:

THEO PETAU
Applicant

AND:

THE STATE
Respondent

Waigani: Kangwia, AJ
2012: 9 & 13 January

PRACTICE AND PROCEDURE – Application for bail after conviction and sentence - Exceptional circumstance must be shown to exist to warrant bail - Deteriorating medical condition alleged - No supporting evidence from recent source – No evidence of Boram Hospital being unable to provide medical service. 

Prospects of success in appeal through alleged procedural errors at trial – Evidence in transcript did not show alleged errors were present. 
Requirements for bail after conviction not met - Bail refused. 

Cases cited: 

Arthur Gilbert Smedley v The State [1978] PNGLR 452
Rolf Schubert v The State [1979] PNGLR 66
John Jaminan v The State [1983] PNGLR 122
Rakatani Mataio v The State (2004) SC 760
Robin Warren v The State (2003) SC 725

Counsel: 

G. Konjib, for the Applicant
T. Ganaii, for the State

13 January, 2012 

1. KANGWIA AJ: This is an application for bail under s.11 of the Bail Act (the Act) after lodging an appeal to the Supreme Court. This court has jurisdiction under s.11 (b) of the Act as a court with equal jurisdiction to the court that convicted him.

2. The applicant was sentenced to 16 years by the National Court sitting in Wewak for the offence of sexual penetration of a child. He is serving time at the Boram Correctional facility.

3. The basis of the application are twofold. They are:

1. Deteriorating medical condition; and

2. Good prospects of success in the appeal.

4. The applicant relied on his own affidavit with various annexure which included court and medical documents. He also relied on the affidavit of his brother Samuel Petau proposing to be his guarantor with various annexure, the affidavit of Greg Konjib also with annexure and the affidavit of Dr. Oswald Harison containing the applicant's medical report with annexure as well.

5. On the applicants behalf Mr. Konjib of counsel for the applicant submitted that the application was made because the medical condition of the applicant had deteriorated since he was sentenced. The applicant needed medical attention elsewhere as Boram General Hospital was not fully functional owing to the tidal wave that caused damage to it. It was further submitted that the various medical reports attested to the applicants' deteriorating medical condition warranted the grant of bail. 

6. Secondly Mr. Konjib submitted that there were good prospects of success in the appeal. It was intimated that the applicant was denied the evidence of his two witnesses and the various shortfalls discovered in the court transcript blended heavily in favour of the applicants' prospects of success in the appeal.

Based on these two grounds the court was asked to exercise its discretion to grant bail to the applicant pending his appeal.

7. The State objected to the grant of bail. Ms Ganaii of counsel for the State submitted that the applicant had failed to show that an exceptional circumstance existed that would attract bail. The medical report relied on were dated in August 2010 and a recent medical report was required to present his current medical condition. It was also submitted that the Boram Hospital was in full operation as deposed to by Hellen Roalakona of the Public Prosecutor's office.

The likelihood of success in the appeal was not an exceptional circumstance as per the case of Arthur Gilbert Smedley v The State [1978] PNGLR 452.

It was also submitted that the presumption of innocence was no longer available to the applicant and unless an exceptional circumstance was shown to exist the bail should be refused. 

8. The principle of law governing applications for bail after lodging an appeal is well settled. An applicant must show that an 'exceptional circumstance' exists in order for bail to be granted pending an appeal after a conviction. (See for example Rolf Schubert v The State [1979] PNGLR 66; John Jaminan v The State [1983] PNGLR 122; Rakatani Mataio v The State (2004) SC760; and Robin Warren v The State (2003) SC 725).

9. An exceptional circumstance is the only consideration that must be shown to exist by an applicant. Exceptional circumstance is not a consideration under s.11 of the Bail Act but to attract the exercise of the Courts discretion an applicant must show that something more than an ordinary reason exists. The need to show that an exceptional circumstance exists is based on the premise that there is no entitlement to bail after conviction. The presumption of innocence available to a person before conviction pursuant to s.42 (6) of the Constitution is also no longer present after conviction.

10. To determine whether the applicant has discharged the requirement, I will consider the grounds he had relied on.

11. Firstly the applicant submitted that his medical condition had deteriorated since his conviction and that should operate as an exceptional circumstance to grant him bail.

12. He was diagnosed and reported to be suffering from osteoarthritis to his knees and loss of bone substance on his spine. The condition is worsened at physical exertion and he was advised to refrain from heavy work. This is evident from Dr. Oswald Harison's examination on 11 August 2010. He also deposed that due to the closure of the Boram Hospital the applicant was advised to seek assistance elsewhere. 

13. It begs two questions.

1.	What is the medical condition of the applicant at present i.e. December 2011 and January 2012?
2.	What is the current status of Boram General Hospital?

14. These two questions arise because the Doctor's report and supporting correspondence on the applicants' medical condition were of his condition more than six months ago. There is no evidence of a recent report indicating the deteriorating condition of the applicants' health apart from what he deposed in his affidavit and what his counsel presented in submission. It would be superfluous to rely on reports which in my view are quite old. 

15. The medical condition seems to be related to effects on his bones. There is no evidence medical or otherwise, that there will be an improvement in his medical condition if he were out of a prison setting either. He will require a recent medical report to support his claim of deterioration. The medical reports relied on do not operate in his favour to show that it constituted an exceptional circumstance.

16. Secondly the status of Boram Hospital was stated to be of the same condition as it was in March 2011 after the high tide caused damage to it. The question is whether the hospital is currently in the same state, such that the applicant is unable to obtain medical attention there with CIS escorts?
The respondent relied on an affidavit of Hellen Roalakona which deposed of being told that Boram Hospital had returned to normal. The deposition is in my view hearsay and I would err in solely relying on it despite the technical rules of evidence not being required.
 
17. Two conflicting positions have been created now. On one side is the proposition that Boram Hospital is still under the spoils of the high tide. On the other is that Boram Hospital had returned to normalcy. There is no evidence from an employee or administrator of the hospital to identify the true status of the hospital. This lack of evidence does not operate in favour of the applicant who would have the onus of establishing with credible evidence of what he alleged to be the condition of the Hospital.

18. Given the above and especially the reports relied on by the applicant which do not disclose through evidence, his current medical condition, I am not satisfied that an exceptional circumstance has been shown to exist on the basis of a deteriorating medical condition from reports made more than 6 months ago.

19. Likewise, there is no evidence to suggest that he is unable to obtain medical assistance from Boram Hospital because of its condition. I refuse bail on the first ground.

20. The second ground advanced was that he had good prospects of success in his appeal and that should operate in his favour to a grant of bail.
The question that arises is whether good prospects of success in the appeal is an exceptional circumstance that warranted bail?

21. In John Jaminan v The State [1983] PNGLR 122 Pratt J held that:

"For bail to be granted following conviction ... relevant matters may include the likelihood of success of the appeal (where the outcome is a foregone conclusion and readily apparent)."

22. In Arthur Gilbert Smedley v The State [1979] PNGLR 66 it was held: 

"Likewise the fact that the grounds of appeal are prima facie arguable does not of itself constitute an 'exceptional circumstance'. 

23. The applicant submitted that his two witnesses were not called to testify even though they were present in court at the trial. It was also alleged that his wife was not cross examined as the trial judge was pressed for time. 

24. These submissions in my view contain falsehoods. The court transcripts on file and relied on by the applicant clearly showed that the applicant's wife gave evidence and was cross examined. There is nothing on the transcripts that showed that the trial judge cut short the case because she was pressed for time. The conduct of a case for a defendant rests with him and his lawyer and not for the court to dictate as to how the defence case should be conducted. These are baseless submissions that do not support the second argument.

25. There is nothing from the applicants' application that goes to show that the outcome of the appeal is apparent or a foregone conclusion. On the contrary, there are arguable grounds present which go against the grant of bail. 
Even if there was any basis of procedural errors on the part of the trial judge I would loathe determining that the alleged good prospects of success as a ground for the application had constituted an exceptional circumstance to grant bail.

26. This is a situation after a conviction against the applicant and bail is not readily available to him while awaiting his appeal. It presupposes that the trial court, as a court of competent jurisdiction, had conducted a trial through the full process and rigour of law before arriving at the decision to convict him. That conviction stands until proven to the contrary at the hearing proper. In that respect, I adopt what Raine DCJ stated in Rolf Schubert v The State [1978] PNGLR 394:

"It is not for me to make 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."

27. The success or failure of the appeal still has its own time. Until then the prospects of success in an appeal should not in my view operate as a readily available ground to attract bail pending the actual appeal. An application for bail pending appeal must be refused, unless it is clearly shown that the factors relied on constitute an exceptional circumstance to warrant the grant of bail. In the present application that is not the case. 

The application for bail must be refused on the basis of the foregoing observations.

____________________________________________________
Konjib and Associates Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent