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Mino v State [2012] PGNC 299; N5180 (27 July 2012)

N5180

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 233 of 2012

TAIO MINO

V

STATE

Lae: P. Toliken AJ
2012: 27th July

CRIMINAL LAW – Practice and Procedure - Bail – Bail after conviction – Awaiting Appeal – Need to show exceptional circumstances –– No serious objection to bail or that applicant's place of abode is known to arresting officer – Not exceptional circumstances – Real likelihood of appeal succeeding – Application granted -Bail Act Ch. 340, s 11

Cases Cited

Jaminan v The State [1983] PNGLR 122

Counsel

Togo S, for the Applicant
Simon H, for the State

27th July, 2012

RULING

1. TOLIKEN AJ: The applicant applies for bail pursuant to Section 11 of the Bail Act Ch. 340 pending the determination of his appeal against his sentence of six months imprisonment by the Morobe District Court at Lae on 02nd July 2012 on a charge of hindering a police officer contrary to Section 60(3) (sic.) of the Summary Offences Act.
   
2. The application is not seriously contested by the State.
   
3. The applicant relies upon the affidavit of proposed guarantor Lisa Ivan filed on 18th July 2012 and the affidavit of counsel Sosthen Togo filed also on the same date.
   
4. Lisa Ivan simply deposed to the circumstances leading up to the applicant's arrest, conviction and sentence and offered to be guarantor by pledging to pay a surety of K200.00. Taken on its face value there is nothing of substance in her affidavit to support grant of bail.
   
5. Mr. Togo on the other hand deposed that he was approached by the relatives of the applicant to lodge an appeal against the decision of the Lae District Court in sentencing the applicant to six (6) months imprisonment. He lodged the Notice of Appeal and field the requisite Recognizance of Appeal on 19th July 2012. He lodged an application for bail in the District Court but this was refused. He then deposed to the reasons for appeals as stated in the Notice of Appeal.
   
6. The State on its part filed an affidavit by the arresting officer, Sergeant William Wula who simply deposed that he does not object to the applicant being granted bail awaiting his appeal because he knows where the applicant lives at Kamkumung here in Lae city.
   
7. I heard submissions from counsel this morning. Mr. Togo of counsel for the appellant merely restated what he said in his affidavit and did not address the court directly on the law pertaining to grant of bail after sentence except to point the Court's discretion under Section 11 of the Bail Act.
   
8. Mr. Simon for the State did not seriously object to grant of bail. He agreed that grant of bail is purely discretionary but that "exceptional circumstances" have to be shown as held in Jaminan v. The State [1983] PNGLR 122.
   
9. Section 11 of the Bail Act provides:
   

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, on application by or on behalf of the appellant, grant bail pending the hearing of the appeal.

10. There is indeed no doubt that a person in this situation can be granted bail by the court which had convicted him or by a court of similar or higher jurisdiction at the discretion of the Court.
    
11. But as was held in Jaminan the applicant has to show exceptional circumstances, for indeed the law presumes that the conviction and sentence are proper until they are set aside. What are some factors that may constitute "exceptional circumstance"? Pratt J. held in Jaminan that:
    

Amongst the factors which may on occasions have a bearing on the circumstances are the likelihood of success of the appeal (the outcome is a foregone conclusion and readily apparent) or where the preparation of the appeal might be assisted by the release of the appellant: See R. v. Wise (1924) 17 Cr. App. R. 17 and a lengthy intervening vacation: R. v. Southgate (1960) 78 W.N. (N.S.W.) 44.

12. So the question for me is; has the appellant shown "exceptional circumstances" for the Court to grant him bail?
    
13. The appellant has not filed an affidavit in support of application and I have noted above Lisa Ivan's affidavit evidence has no material of substance to pass the test. And if this were the only material relied upon by the applicant his application would fail for obvious reasons.
    
14. Even the State's and the arresting officers positions in not opposing bail "seriously" is of little assistance to the applicant. The fact that the applicant is known to the arresting officer and the non-objection by counsel to bail, are not, in my opinion, "exceptional circumstances". If they were, most appellants would be out on bail because they are either known to arresting officers or that their places of abode are known or because the State does not object to bail or because of unchecked exercise and unreasonable exercise of discretion by the court.
    
15. But having said that I am inclined to grant bail because, after considering the affidavit of Mr. Togo I am of the considered view that there is a strong likelihood of the applicants appeal being successful. There is no indication as yet to when his appeal be might heard even though the Appeal Book might have been prepared as alluded to by his counsel.
16. I shall therefore grant the application and grant the applicant bail with the following conditions:
    
    1. That he pays a cash surety of K300.00
       
    2. That he shall report to the Assistant Registrar of the National Court here in Lae every Fridays between the hours of 8.00a.m and 3.00p.m.
       
    3. Lisa Ivan is approved as guarantor and she shall accordingly pledge herself to owe the State the sum of K200 which shall be levied against her goods and chattels if the applicant Taio Mino breaches any of his bail conditions.
       
17. Orders accordingly.

________________________________________________
Daniels & Associates Lawyers: Lawyers for the Applicant
Pondros Kaluwin, Public Prosecutor: Lawyer for the State