N6569
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 246 OF 2016

EDWARD DOUGLAS

V

THE STATE

Lae:  Murray, J
2016:  18 October & 22 November

CRIMINAL LAW - PRACTICE AND PROCEDURE - Bail Application- National Court - Offence of Robbery - s. 386 (1), (2) & (a) & (b) of the Criminal Code - Applicant convicted- Application pending decision on sentence -  Application pursuant to Bail Act - s. 10 & Constitution - s. 42 (6) - 
Both provisions not applicable - Application refused.
  
Cases Cited:
Eremas Matiul vs. The State (N6324)
State vs. Robert Yabara (No. 1) [1984] PNGLR 133
The State vs. Boma Bango (2010) (N4168)

Counsel:
Mr. J. Huekwahin, for the Applicant
Mr. J. Waine, for the Respondent 

DECISION ON BAIL APPLICATION
 
22nd November, 2016

1.	MURRAY J:  The Applicant, Edward Douglas seeks, to be granted bail after he was convicted by this Court (per David, J) on 2nd April 2015 following his guilty plea to the charge of Robbery under Section 386 (1), (2) (a) & (b) of the Code.  I heard this application on 18th October 2016 and reserved my ruling to today.

2.	In support of his application, the Applicant relied on the following affidavits:  	

(1)	His Amended Affidavit sworn 30th September 2016 and filed 
  14th October 2016.

(2)	Affidavit of Leo Kautu sworn 31st May 2016 and filed 21st June 2016 	(one of the proposed guarantor).

(3)	Affidavit of Tom Awiye sworn 31st May 2016 and filed 21st June 2016    (other proposed guarantor).

3.	In his affidavit, the Applicant in essence states:
On 2nd April 2015, he was convicted after he pleaded guilty to the offence as charged.  Then on 15th April 2015, the Court heard submissions on sentence and reserved its decision.
	Since then, he has been in remand awaiting his sentence and because it not ready, he wishes to be out on bail.
 
4.	At paragraph 11 of his Amended Affidavit, he sets out 8 matters he claims are grounds why he should be granted bail.  And at paragraph 12, he adds another one.  Those matters are:  

(1)	Firstly, my detention has been prolonged since the date of submissions on my sentence was made by Mr. Tjipet from Public Solicitors Office.

(2)	To date it would be one (1) year and approximately six (6) months from 	the date submissions on sentence was made.

(3)	I believe under Section 37 (3) of the Constitution, my matter should have 	been afforded a fair hearing within a reasonable time, by an independent 	impartial court.

(4)	In my case, I have made it so easy for the court in admitting the offence at 	the earliest possible time but now my sentence has been pending for a 	year and six months now and also that my detention has been prolong 	since 15th April, 2015.

(5)	Since then I have suffered from dysentery in so many occasions since my 	incarceration.

(6)	I have visited the Buimo Health Centre but there is no proper medical 	history of my visits to the clinic hence I am unable to produce any 	evidence to this effect.

(7)	I have orally requested the Buimo Health Centre staff for a referral for 	better treatment at ANGAU or private Clinics but my request has not 	been taken seriously and hence my request was not entertained.

(8)	Since my requests for better medical checks were not taken serious 	consideration, I have no medical proof to this effect but what I depose 	herein are true.

(9)	On the basis that the remand cell blocks are crowded and there is high 	risk of us to contract air borne diseases and also that the sanitation 	problem is causing a high risk for us to contract other diseases such as 	dysentery and diarrhea.

5.	However in his lawyer’s submission, the only ground pursued in support of the Application is that of Prolonged Detention.

6.	It was submitted on his behalf that, this Court has powers under both Section 42 (6) of the Constitution and Section 10 of the Bail Act to hear and grant bail to the Applicant on the ground of Prolonged Detention, which it was further submitted, constitutes exceptional circumstances, under Section 37 (3) of the Constitution.

7.	In support of this submission, lawyer for the Applicant referred to and relied on 2 decided cases, namely: (1) Eremas Matiul vs. The State (N6324), and
(2) The State vs. Boma Bango (2010) (N4168).

8.	In response, lawyer for the State submitted; Firstly, the Applicant’s status after conviction has now changed.  He is now a prisoner and not a remandee. Secondly, he submitted, Section 10 of the Bail Act must be read together with Section 11 of the Bail Act.  So when those 2 provisions are read together, an Applicant under Section 10 must show exceptional circumstances.

9.	The Application that came before me is made pursuant to Section 42 (6) of the Constitution and section 10 of the Bail Act.    These provisions read:  
Firstly, Section 42 (6) of the Constitution reads:

	“(6)	A person arrested or detained for an offence (other than treason or 		wilful murder as defined by an Act of the Parliament) is entitled to bail 	at all 	times from arrest or detention to acquittal or conviction unless 	the interests of justice otherwise require.”

Secondly, Section 10 of the Bail Act reads: 

	“10.	Bail after Conviction and before Sentence.

			Where a Court convicts a person but adjourns the proceeding before 	passing sentence, it may, in its discretion, grant the person bail.”

10.	Having read those two provisions, a preliminary issue as to whether this application is properly before me arises.
Although this was not raised by the lawyer for the State, that does not stop the Court from raising it.  The Courts have powers to raise on its own, issues of jurisdiction.  This is no exception.

11.	So firstly can the Applicant bring his application under Section 42 (6) of the Constitution?  

12.	My answer to that is no.  I find this provision not applicable.
Clearly, Section 42 (6) of the Constitution is only available to a person accused of an offence other than treason/wilful murder at all times from arrest/detention to acquittal/conviction. The availability of this provision stops at conviction.  After conviction, the status of the person concerned changes from an Accused/Remandee to a Prisoner. As such, such persons cannot rely on Section 42 (6) of the Constitution, as in the present case.  The Applicant is a convicted prisoner.  No longer an Accused/Remandee, and therefore cannot bring his application under Section 42 (6) of the Constitution.  

13.	The application under this provision is therefore misconceived as this Court does not have the power to consider the Application under Section 42 (6) of the Constitution by the Applicant.

14.	The next question is, can the Applicant bring the Application under Section 10 of the Bail Act.  Two cases were cited and relied upon by the Applicant for his application pursuant to this provision.

15.	I have read both cases which are National Court judgments, dealing with Section 10 of the Bail Act.  
In the case of Matiul, the Court, followed the consideration applied in the Supreme Court case of State vs. Robert Yabara (No. 1) [1984] PNGLR 133.  That Supreme Court case dealt with an Application under Section 11 and not Section 10 of the Bail Act.  In that case the Supreme Court held inter alia that; 

“A person who has been convicted for an offence and has lodged an appeal and who applies, pursuant to the Bail Act 1977, Section 11, for bail pending the hearing of appeal, must in order to be admitted to bail, show exceptional circumstances.” 

In my view the Supreme Court Judgment in Yabara, does not apply here because, I am of the view that, the Application of Section 10 is different to Section 11.  I will come to elaborate on that later as the basis upon which I don’t find the Supreme Court case of Yabara applicable.  As for the Judgment in the case of Matiul, as it is a judgment of the National Court, it is not binding on me. On the other hand, I find the case of Boma Bango on point. 
In my view, the National Court in that case applied Section 10, correctly.

16.	Section 10 of the Bail Act states, “Where a Court convicts a person but adjourns the proceeding before 	passing sentence, it may, in its discretion, (underline mine) grant the person bail.”

17.	In my view, Section 10 is also not applicable and therefore not available. It does not provide for an “Application” (emphasis mine) to be made by someone who has been convicted but yet to be sentenced.

18.	Instead, it gives a Court a discretionary power to consider on its own, whether to grant bail to someone, it has just convicted but had to adjourn without deciding on a sentence.  That is a discretionary power given to the Court to apply there and then.  Not for someone awaiting sentence to come back and apply.  That was how the Court in Boana Bango case applied Section 10.  In my view that is the correct application of Section 10.

19.	If Section 10 is intended for an “Application” to be made, then it ought to state that as it is in Section 11 & 12 of the Bail Act.

20.	Section 11 reads:  

“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 (underline mine) by or on behalf of the appellant, grant bail pending the hearing of the appeal.”  and 
	Section 12 reads: 

	“12.	Bail during hearing of appeal.

“Where a court hearing an appeal adjourns proceedings, it may, in its discretion, grant bail to the appellant on application (underline mine) by or on behalf of the appellant.”

21.	The key words in section 11 & 12 are:  “on application.”

22.	Under Sections 11 & 12, a person who has been convicted, appeals the conviction, and wishes to be out on bail pending hearing of the Appeal, must apply for bail, (emphasis mine) and the Supreme Court in Yabara, in considering an application under Section 11, said, the Applicant must show exceptional circumstances before he/she can be admitted to bail.  In my opinion Section 10 does not provide for an application to be made and therefore the requirement for exceptional circumstances does not apply.  It would follow then that the Supreme Court’s decision in Yabara does not apply.  I do not think that is a mistake.  I think it is like that for a reason and that being, a person who has been convicted and does not wish to appeal the conviction, is not disadvantaged in anyway because he is merely awaiting sentence and in which case, the time in custody prior to sentence will be taken into account when sentence is delivered.

23.	Before I conclude, I wish to comment on the Applicant’s lawyer’s submission that this Court must apply Section 37 (3) of the Constitution and find that prolonged detention is an exceptional ground for bail and so his client should be granted bail.  

Section 37 (3) of the Constitution reads: 

	“(3)	A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.”  (emphasis mine)

24.	I find the argument as to Section 37 (3) of the Constitution also misconceived on the basis that the Applicant in this case is now a convicted prisoner.  He is no longer a Remandee.  He has been “offered a fair hearing”.  This was done on 
2nd April 2015.  He is now awaiting sentence.

25.	In my view Section 37 (3) of the Constitution is no longer available to him.

26.	In conclusion, given my decision on the preliminary issues, there is no basis for me to consider the merits of the Application further.

27.	It is there the decision of this Court that, Bail is refused.

__________________________________________________________________
Public Solicitor 	: Lawyer for the Applicant						
Public Prosecutor	: Lawyer for the Respondent