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Palma v State [2015] PGNC 283; N6238 (24 December 2015)

N6238

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (APP) 570 of 2015

BETWEEN:
BADU PALMA
Applicant

AND
THE STATE
Respondent

Kokopo: Anis AJ
2015: 23 & 24 December

CRIMINAL LAW – Bail Application - Appeal against conviction and sentence- section 11 of the Bail Act discussed - lack of disclosure of material facts - no evidence to confirm that prisoner has exercised his right of appeal - Notice of Appeal filed at the National Court Registry - no evidence of Recognizance on Appeal filed - application not properly before the Court and is refused

Cases cited:

ABCO Transport Pty Ltd v. Timothy Sakaip (1997) N1577

Counsels:
Mr Kaluwin, for the Appellant
Mr Rangan, for the Respondent

RULING

24^th December, 2015
1. ANIS AJ: This is a bail application. The matter was first mentioned briefly in Court as an urgent matter on 22 December 2015. Mr Rangan requested the matter to be adjourned to 23 December 2015 because he said he needed time to be properly briefed on the State's position on the matter. Mr Rangan informed the Court then that the application for bail and its settings appeared inconsistent with his initial instructions. Mr Rangan said based on his instructions, the Applicant has already been convicted and sentenced to jail.

2. In response, Mr Kaluwin informed the Court amongst other things that his instruction was also not complete.

3. By consent, the Court adjourned the matter to 2:30pm on 23 December 2015.

4. On 23 December 2015, the Court proceeded to hear the Application.

5. I reserved my ruling to 11:00am today.

APPLICATION

6. This Court had difficulties in trying to understand the material facts and type of application that was brought before it.

7. At the outset, I asked Mr Kaluwin to state the material facts such as whether the Applicant had been convicted and sentenced. If so, whether the Applicant has filed an appeal which is pending before the National Court. This Court also inquired regarding the source in which the bail application was based on.

8. The information provided by Counsel was sketchy. The Court file also did not provide much assistance because it did not have evidence such as depositions or relevant information to show what transpired at the District Court.

9. The Court pointed out to Counsel Section 11 of the Bail Act Chapter No. 340. Mr Kaluwin appeared to agree that, that was the correct source in which his client was seeking bail under.

10. I asked Counsel whether he had exhausted his client's bail right at the lower Court that is, whether his client had applied for bail at the District Court as provided for under Section 11(a) of the Bail Act. In response, Counsel submitted that as a matter of practise, bail applications like this are made toa higher Court from theCourt thatissued the conviction or sentence. I ruled that it was up to the Applicant to choose and he has chosen, in this case, to apply for bail at the National Court which was fine.

11. Mr Kaluwin sought leave of the Court to hand up a copy of the Notice of Appeal which he said was filed by the Appellant. Mr Rangan did not object to the document and, it was handed up in Court. Also handed up in Court without any objection was an Affidavit of the Applicant which was sworn on 10 December 2015 and filed on 23 December 2015.

12. The Notice of Appeal is dated 21 December 2015. I asked Counsel firstly whether the Applicant's appeal was filed under Section 220 of the District Courts Act Chapter No 40. Mr Kaluwin said that was correct. I then asked Counsel whether he also has a sealed copy of the Recognizance on Appeal which he could hand up to the Court. Mr Kaluwin said he did not have the document and from recollection, Counsel said that the document was prepared and forwarded but that it was still pending at the District Court Registry.

13. I pointed out to Counsel that the law was settled with regard to an appellant's right of appeal which was that he cannot invoke such a right unless both the Notice of Appeal and Recognizance on Appeal have been lodged or filed with the Clerk of Court at the District Court Registry.

14. Mr Kaluwin in response said at least the filing of the Notice of Appeal showed sufficient evidence that the Applicant was appealing the decision of the District Court and therefore the this Court should have regard to that.

15. I find this hard to accept. This is because Section 11 of the Bail Actstates:

“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.”
(Underlining is mine)

16. An applicant can only apply for bail under Section 11 if he or she has already lodged an appeal which is pending before the National Court.

17. Section 220 and 222(1) of the District Courts Act are relevant for this purpose.

18. I set them out as follows:

“220. Institution of appeal.

(1) An appeal under Section 219 shall be instituted

(a) by notice of appeal; and

(b) by entering into a recognizance on appeal, or by giving other security as specified in Section 222.

(2) An appellant shall give notice of his intention to appeal by lodging, within one month after the day when the decision is pronounced, a notice of appeal with the Clerk of the Court by which the conviction, order or adjudication was made.

222. Recognizance on appeal.

(1) Subject to Subsection (2), within one month after the day when the decision is pronounced an appellant shall enter into a recognizance with a surety before a Magistrate in such sum as the Magistrate thinks fit, conditioned—

(a) to prosecute the appeal; and

(b) to abide the order of the National Court on the appeal; and

(c) to pay such costs as are awarded by the National Court,

or the appellant may, instead of entering into a recognizance, deposit with the Clerk of the Court by which the conviction, order or adjudication was made such sums of money as a Magistrate in writing directs.”
(underlining is mine)

19. Case law is settle with regard to invoking right of appeal, that is, an intended appellant must file both a Notice of Appeal and Recognizance on Appeal at the District Court registry within 30 days from the date of the decision being appealed against..

20. In the case ABCO Transport Pty Ltd v. Timothy Sakaip (1997) N1577, Injia J as he then was (now the Chief Justice) held these:

“On 1/10/96, the Appellant filed at the registry of the National Court at Mount Hagen a Notice of Appeal, Recognizance on Appeal and Entry of appeal to the National Court as required by S. 220 and 222 of the District Courts Act. The filing of a Notice of Appeal and Recognizance on Appeal constitutes the institution of an appeal: S. 220 (1) of the District Courts Act.”(Underlining is mine)

21. In the present case, this Court was not shown any evidence of a Recognizance on Appeal being filed by the Applicant, pursuant to Sections 220 and 222 of the District Courts Act that is apart from the Notice of Appeal.

22. Because it became apparent from the Court and to both parties that the material facts were not disclosed or that they were nowhere to be found, the Court adjourned briefly for about half an hour to allow time for Mr Kaluwin to see if he would be able to obtain copies of the Court depositions including the Recognizance on Appeal from the District Court registry. When the Court resumed, Counsel was still not able to produce that evidence. In my view, this Court had had to bend back-ward to try assist the Applicant but I note that the main reason why the Court had allowed the brief adjournment was to get to the bottom of it all to see if Counsel can obtain material documents in order that it would assist the Court as well as the Prosecution to see the actual status of the appeal proceedings.

23. Whilst taking time to consider the matter to make my ruling, I note also that there is a serious problem with the Notice of Appeal. The Notice of Appeal was not filed with the Clerk of Court in the District Court as it should have been. Instead, it was filed and sealed at the National Court Registry.

24. This is of course in direct breach of Section 220(1) of the District Courts Act.

25. As a result of this latest finding, I can only conclude that the Applicant has no appeal which is pending before the National Court.

26. In summary, there is no evidence before this Court that there is a valid appeal which is pending and which is on foot in the National Court by the Applicant, that is, against his conviction and sentence.

27. Because the Applicant's right to appeal is not established, he cannot therefore use or rely on Section 11 of the Bail Act to apply for bail in the manner as submitted by Counsel.

OTHER SERIOUS ISSUES

28. Upon perusing the Court's file, I find three serious problems with the documentation filed by the Applicant or his Counsel.

29. I list them as follows:

(i) There appear to be two applications for bail on foot.

(ii) The first is titled "Bail Application" and it was filed on 21 December 2015. The application for some reason was accepted by the National Court Registry and it was recorded as filed when the application wasclearly not signed; in other words, this document should not have been accepted by the National Court clerks in the first place.

(iii) It gets worse. The manner in which the application document is drafted and filed is misleading. The Applicant, by the time the application was filed on 21 December 2015, was already a convicted prisoner because he was convicted and sentenced to 8 months imprisonment on 4 December 2015. Yet, in his said bail application, he portrays himself as a accused person who was still facing charges under Section 398(a)(1) of the Criminal Code Act. He even states in the application that he denies the charge.

(iv) The two Guarantors of the Applicant namely Deiter Palmer and Andrew Ilam filed affidavits on 21 December 2015. They also give evidence as if the Applicant was still an accused person who has not yet been found guilty and sentenced.

(v) I note that this discrepancy was pointed out by Mr Rangan initially on 22 December 2015 and during his submissions on 23 December 2015.

(vi) The second application for bail is titled "Notice of Motion". It was also filed on 21 December 2015.

30. The Notice of Motion is also not signed. It should never have been accepted by the National Court Clerk for filing.

31. In summary, both applications for bails are not properly before the Court.

PRELIMINARY FINDINGS

32. Based on this Court's considerations on the preliminary issues as identified and discussed above, this Court is in a position to rule on the matter now without dwelling into the actual application or applications.

33. I am satisfied and find that there are overwhelming reasons and evidence to conclude that this bail application, in whatever form or shape it has been brought to the attention of this Court, is substantially defective, flawed and it could also be described as incontestably bad.

34. I also find that the two bail applications should not have been accepted by the National Court Registry in the first place. In doing so, I am send out a strong warning to the National Court Registry staff here in Kokopo and to the Clerk responsible, to ensure to thoroughly check documents before accepting them for filing.

35. This Court will not hesitate to summon the Clerk responsible if this type of incident is repeated in the future.

SUMMARY

36. I find the Applicant's application or applications substantially flawed.

37. Even if I may be wrong with my preliminary ruling, I note that I have also ruled against the Applicant relying on Section 11 of the Bail Act.

38. Secondly, and even if I am again found to be wrong, I note that the evidence of the two guarantors whom the Applicant is relying on are baseless because they give evidence on the false presumption that the Applicant was still a free man who was still defending against charges laid against him when he clearly was not a free man but was a prisoner of the State at the material time. Without these evidence, it would have been still difficult for this Court to have considered the application favourably for the Applicant.

39. I wish to lastly comment on the conduct of Counsel for the Applicant. All lawyers are officers of the Court and they are bound by the Professional Conduct and Ethic Rules which means that they should ensure to perform their role to such an extent that they are also seen to fully assist the Court when dealing with their client's case or cases. I note during the hearing that Mr Kaluwin did not seem to have full instructions as well as full knowledge of the back-ground of his client's case before he filed these proceedings, and I must say that, without Mr Rangan's assistance, this Court could have been easily misled on the facts and issues at hand.

40. I would urge Counsel to ensure that Court documentations are properly signed and also that full instructions and briefs are sought from clients before coming to Court or filing Court proceedings.

41. I will stress that I will not tolerate such practise in the future.

THE ORDERS OF THE COURT

The application is refused.

___________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Appellant