SC1588		 PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCApp NO. 21 OF 2016

IN THE MATTER OF AN APPLICATION
 UNDER SECTION 11 (c)
OF THE BAIL ACT, CH 340

BETWEEN

KILOH SAMSON 
Applicant

AND

THE STATE
Respondent 

Waigani: Makail, J
2017:  9th & 10th May 
 
PRACTICE & PROCEDURE – Application for bail – Bail sought pending appeal – Applicant convicted of manslaughter and sentenced to 12 years imprisonment – Grounds for bail – Good grounds of appeal – Good prospects of success – Applicant a candidate contesting National General Election – Whether exceptional circumstances established – Bail Act, Ch 340 – Section 11   

Cases cited:

John Jaminen v. The State [1983] PNGLR 122
Rakatani Mataio v. The State (2007) SC865
Rakatani Mataio v. The State [2004] PNGLR 33
Yaki v. The State [1990] PNGLR 513

Counsel:

Mr. L. Evore, for Applicant 
Ms. T. Aihi, for Respondent
RULING  
10th May, 2017	

1.	MAKAIL, J:   On 21st November 2016 the Applicant was convicted of one count of manslaughter contrary to Section 304 of the Criminal Code.  On 6th December, he was sentenced to 12 years imprisonment.  Following the sentence, on 20th December, he filed an application for bail.  According to the Court file endorsement, the application came before the Deputy Chief Justice on 23rd December and was adjourned to the Registry for listing.

2.	Meanwhile, on 30th December, he filed a supplementary notice of appeal and pending its hearing, the application for bail was relisted for hearing last week Friday.  It was adjourned to Monday this week.  The Court did not sit on that day and the application was stood over to Tuesday and heard.  

3.	I begin by saying this, that an application for bail must be decided on its own merits.  Section 11 of the Bail Act gives the Court discretion to grant bail in cases where a person lodges an appeal against his conviction, or sentence, or both pending the hearing of the appeal.  The Court referred to here is either the Court which convicted him, or a Court of equal jurisdiction, or a Court of higher jurisdiction.  In this case, the Applicant elected to exercise the third option by seeking bail in a Court of higher jurisdiction, the Supreme Court.

4.	The Applicant conceded that for him to be admitted to bail, he must established that there are exceptional circumstances.  The proof of it is quite onerous where he has been convicted and sentenced to a term of imprisonment and the presumption of innocence once available to him is no longer available.  The grounds supporting the application which he submitted constituted exceptional circumstances is that he has good grounds of appeal.

5.	These, he submitted, amongst others, were that the trial judge erred in convicting him on the evidence of the State’s sole witness who was the deceased’s sister when there were other eyewitnesses whom the State failed to call at trial.  Secondly, that an autopsy report was unclear as to the cause of death.  Then there were procedural breaches where the police had not accorded a fair interview to him and drew up false record of interview which were adverse to his defence and denied him a fair trial.

6.	However, he conceded that as was held by the Supreme Court in Rakatani Mataio v. The State (2007) SC865, good grounds of appeal or good prospect of appeal is not an exceptional circumstance per se. And this position is consistent with the National Court decision in Rakatani Mataio v. The State [2004] PNGLR 33.  Nonetheless, he submitted that the Supreme Court further held that the Court must look at circumstances of the whole appeal/application. 

7.	And in this case, he is a candidate to contest the Moresby North East electorate in the coming National General election, having nominated on 27th April, after having received clearance from the Electoral Commission based on legal advice, that he required being out on bail to campaign.  For that, he must be given reasonable opportunity to stand for elective public office under Section 50 of the Constitution.

8.	So if the Applicant concedes that good grounds of appeal or good prospects of appeal did not amount to exceptional circumstances per se, the question is whether his contesting the National General election as a candidate makes his cases exceptional that he be admitted to bail.  He did not refer to a case authority to support this argument.  

9.	The Respondent referred to the case of John Jaminen v. The State [1983] PNGLR 122 and submitted that this case is against the Applicant.  There, it was held that a member of Parliament convicted of four counts of rape and applied for bail on the grounds that as a member of Parliament he would not be able to attend at the sitting of the house, hence the electors of the electorate would be deprived of the presence of their duly elected member during Parliamentary sittings, was not exceptional circumstances.

10.	While that was a case which involved a member of the Parliament and this case involves an Applicant who is not a member of Parliament but a candidate to contest the election, I accept the Respondent’s submission that the reasons given for refusing bail equally applies to this case.

11.	I am of the view that the reason given by the Court in Jaminen case that “the lack of political representation for the people of Yangoru-Saussia electorate is rather a matter ‘exceptional’ to them than to the applicant himself” equally applies to this case where the Applicant is contesting the National General election.

12.	Another case which the Respondent referred to was Yaki v. The State [1990] PNGLR 513.  It submitted that, in that case, the Applicant, a member of the Parliament was convicted of misappropriation of public funds and sentenced to 2 years imprisonment.  I note in that case, the Applicant’s first application for bail was refused by a single Judge of the Supreme Court.  He filed an appeal and sought bail before the full Court.  One of the grounds was that he had responsibilities to the electorate and needed to account for funds allocated by the Department of Finance for various projects in the electorate. The Supreme Court held that it was not exceptional circumstances and refused bail citing amongst other reasons, that the accounting of funds could be adequately done even if he is in custody. 

13.	Even if the Applicant has been cleared by the Electoral Commission based on the legal advice of its lawyers, the Court is not bound by it.  The question of eligibility to contest the election is one thing and the question whether it amounts to exceptional circumstances is another.

14.	It is even difficult for the Applicant to make out an exceptional case where the application is riddled with delay.  The application was filed on 20th December last year and except for the brief appearance before the Deputy Chief Justice on 23rd December, it was not heard until last week Friday and Tuesday this week.  There is no explanation for the delay.  Where there is no explanation and it must be a reasonable one, it is open to infer that the application is not made in good faith.  For, if the Applicant had intended to contest in the coming election, he should have sought bail well before the commencement date of the election.   He did not.

15.	And in making this observation, it is not an admission that this ground constitutes exceptional circumstances but to emphasise the point that if it is being relied upon to obtain bail, it must be considered with caution.  The Court must and should not be used to sanctioned bail merely because an Applicant wants to contest the election particularly where he has been convicted and serving a long imprisonment term.

16.	I am not satisfied that the Applicant has established that exceptional circumstances exist for the Court to grant him bail.  Therefore, the application is refused.

Ruling accordingly.
________________________________________________________________

Jema Lawyers: Lawyers for Applicant
Public Prosecutor: Lawyers for Respondent