SC649

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCRA 43 of 2000

BETWEEN:

BOLA RENAGI
First Applicant

AND:

BELDEN NAMAH
Second Applicant

AND:

LINUS OSOBA
Third Applicant

AND:

THE STATE
Respondent

Waigani	:	Amet, CJ
2000		:	28 July & 1 August

Bail – Right to – Constitution Section 42(6) – Bail Act Section 11 – No Right to bail after Conviction.

Bail Application – Pending Appeal – Presumption of Innocence – No longer Prevails after Conviction.

Application after Conviction – Rare – Viewed with Great Care and Reticence.

Principles – Show Exceptional Circumstances – Not Merely Special Circumstances

Appeal – Likelihood of success – Not of Itself Constituting Exceptional Circumstance.

Held: (1) Application for bail after conviction shall be viewed with great care and reticence.

(2)	Presumption of innocence no longer prevails after conviction.

(3)	No exceptional circumstance has been demonstrated.

(4)	Bail is refused.

Cases Cited:
The following cases are cited:
Rolf Schubert v. The State [1978] PNGLR 394
Arthur Smedley v. The State [1978] PNGLR 452

Counsel:
P Parkop, for Applicants.
P Mogish, for Respondent.

1 August 2000

AMET CJ:	The Applicants were convicted on a charge of mutiny under s. 55 (1) of the Defence Force Act and were sentenced to prison terms ranging from 6 to 8 years by the National Court. They have appealed to the Supreme Court against their conviction and sentence and make this application for bail, pursuant to s. 11 of the Bail Act, pending the hearing of their appeal.

Principles of Law
The principles of law on application for bail following conviction are now well established. Firstly, whilst under s. 42(6) of the Constitution and the Bail Act the right to bail is guaranteed to a person accused of any crime other than treason or wilful murder, there is no right to bail following conviction. This is because prior to conviction the presumption of innocence still prevails, whilst after conviction the presumption is that guilt has been established, in what must be taken to be a trial properly conducted, without error of law, until the contrary is shown. Application such as this is therefore rare and is viewed with very great care and reticence by the courts. 

The courts are however vested with wide discretion in the exercise of this power. In the exercise of this discretion power whether or not to grant bail following conviction, "exceptional circumstances" must be shown, not merely "special circumstances".

What may amount to "exceptional circumstances" must be determined from the whole of the circumstances of a particular case and it is not possible to enumerate particular factors as amounting to such "exceptional circumstance" alone. The onus is upon the applicants to demonstrate that there are factors which constitute "exceptional circumstances" to satisfy the court that bail should be granted.

The only ground advanced in this application as an "exceptional circumstance" to support the application for bail is that the grounds of appeal are likely to succeed. The lawyer for the applicants then attempted to demonstrate from the evidence and the judgment the alleged errors and thus how the grounds of appeal were likely to succeed.

I refer to two cases before the Supreme Court in which this particular factor was discussed in similar applications pending appeal. In Rolf Schubert v. The State [1978] PNGLR 394, at 397 Raine Dep. C.J made this observation:

Mr Griffin also relies upon the fact that there is a reasonable probability that the appeal could succeed. … It is not for me to make up 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. … However, … I say, tentatively only, that the appeal does not look a very easy one to me, and I am not of opinion that the chances of success are so great that exceptional circumstances favourable to the applicant are constituted.

In a subsequent application by Arthur Smedley v. The State [1978] PNGLR 452, at 454 Wilson J said:

The principle reason relied upon by Mr. Kendell in making this application was that, prima facie, the grounds of appeal are of an arguable nature. Assuming arguendo that, prima facie, the grounds of appeal in this case are of such a nature, I am not persuaded by … any authority that that of itself constitutes an "exceptional circumstance". That circumstance does not of itself immediately conjures up in my mind the idea of something exceptional.

I adopt and apply these principles to this application. I too do not consider that to simply argue that certain proposed grounds of appeal are likely to succeed necessarily of itself constitutes an "exceptional circumstance" favourable to the applicants to merit grant of bail. I am also of the opinion that it is not for me to make up my mind at this point about the chances of appeal, it would be wrong for me to do so in the absence of full argument. The appeal is not going to be an easy one. As Dep. C.J Raine also remarked, "indeed, it might be that I sit on the appeal myself", and so it would be most inappropriate to express an opinion as to the likely merits of the appeal.

No other circumstances have been advanced to persuade the Court that "exceptional circumstances" exist that merit the grant of bail.

I therefore refuse bail.
______________________________________________________________________
Lawyer for Applicants	:	Powes Parkop Lawyers.
Lawyer for the State		:	Public Prosecutor.