Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

Stephenson v Independent State of Papua New Guinea [2020] PGSC 27; SC1928 (28 February 2020)

SC1928

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 4 OF 2020

IN THE MATTER OF A BAIL APPLICATION PURSUANT TO SECTION 11(c) OF THE BAIL ACT, CHAPTER 340

BETWEEN

PAULINE RABIE STEPHENSON
Applicant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Lae: Batari, David & Murray JJ
2020: 25^th & 28^th February

CRIMINAL LAW – bail - application for bail pending appeal against both conviction and sentence – applicant to show exceptional circumstances – good prospect of success– grounds of appeal of an arguable nature - short sentence - Bail Act, Chapter 340, Section 11(c).

Cases Cited:

Arthur Gilbert Smedley v State [1978] PNGLR 452
Denden Tom v The State [2007] SC914
Dr. Theo Yasause v The State (2011) SC1112
Dr Theo Yasause v The State (2014) SC1381
John Jaminen v The State [1983] PNGLR 122
Major Walter Enuma & Ors v The State [1997] SC538
Paul Jerol Aisi v Malkom Bai (1976) N 52
Rakatani Mataio v The State [2007] SC865
Re Application of Paul Tiensten (2014) SC1343
Re Ilett (1974) PNGLR 49
Rolf Schubert v The State (1979) PNGLR 66
The State v Robert Kani Yabara(No.1) [1984] PNGLR 133

Counsel:

James Morog, for the Applicant

Camillus Sambua, for the Respondent

JUDGMENT

28^th February, 2020

1. BY THE COURT: This is a ruling on an application for bail pending appeal against both conviction and sentence to a court of higher jurisdiction, the Supreme Court, under Section 11(c) of the Bail Act, Chapter 340.
   
2. The applicant, Pauline Rabie Stephenson, an accountant by profession, was on 20 November 2019 convicted by the National Court sitting in Lae of four counts of misappropriation under Section 383A of the Criminal Code and one count of stealing under Section 372 of the Code after a contested trial. On 5 December 2019, the National Court sentenced the applicant to four years imprisonment for four counts of misappropriation and one year for one count of stealing and these sentences were ordered to be served concurrently. Pre-trial detention period of two months was deducted leaving three years and ten months as the balance of the sentence to be served. The National Court then ordered that three years of the sentence be suspended which was conditional upon the applicant making full restitution of K53,535.10 comprising; one payment to Troy Fairweather in the sum of K28,500.00; and another payment to Pagini Transport Ltd in the sum of K25,035.10 leaving ten months to be served in custody. On the same day of sentencing, i.e., on 5 December 2019, the applicant fully complied with the order for restitution when she paid into the National Court Trust Account a total sum of K53,535.10 to be paid to Troy Fairweather and Pagini Transport Ltd respectively in the amounts ordered.
   
3. On 11 December 2019, the applicant instituted her appeal by a notice of appeal filed in Supreme Court proceedings registered as SCRA 51 of 2019, Pauline Rabie Stephenson v The State. The applicant has appealed to the Supreme Court against the safeness and satisfactoriness of the convictions as well as against sentence which she states is too harsh and oppressive in the circumstances of her case.
   
4. It is instructive to set out the grounds of appeal pleaded in the notice of appeal and these are:
   
   1. The conviction was unsafe and unsatisfactory as:
      
      • (a) The trial judge erred in fact and in law in convicting the appellant on misappropriation of funds paid to her account for hire cars on two occasions while she was in fact on official duty travel and there was no evidence to the contrary;
      • (b) The trial judge erred in fact and in law in convicting the appellant for stealing when there was no direct evidence and the circumstantial evidence established that there was another person who had clear [access] to the office at all material times;
      • (c) The trial judge erred in law in relying on the evidence of the complainant whose evidence was clearly lacking in weight and reliability for reasons of apparent inconsistencies which the learned trial judge did not give reasons for accepting and relying on such testimony; and
      • (d) The trial judge erred in law and in fact to return verdicts of guilty for all the counts when there was no direct evidence and there was circumstantial evidence [that] was very weak and the convictions were unsafe in law and unsatisfactory.
        
   2. The trial judge erred in the exercise of discretion in imposing a sentence which is too harsh and oppressive in the circumstances of this case wherein the trial judge:
      
      • (a) imposed a term of four years for the three counts of misappropriation; and
      • (b) one year for the one count of stealing; and
      • (c) these sentences were ordered to be served concurrently; and
      • (d) two months pre-trial custody was deducted and the resultant term of imprisonment [was] three years and ten months; and
      • (e) three years of will be suspended upon full restitution of the sum total of the monies misappropriated and stolen; and
      • (f) upon such full restitution, the balance of ten months will be served in custody.

5. As to the relief sought, the applicant relevantly seeks orders to quash the convictions and to set aside the sentence or alternatively that the sentence be substituted with orders for a fully suspended sentence upon full restitution and imposition of conditions of probation for the duration of the balance of the sentence imposed.

6. After lodging her appeal, on or about 24 December 2019, the applicant applied for bail before the National Court in Lae in proceedings registered as CR(AP)320 of 2019, Pauline Rabie Stephenson v The State which was presided over by Kaumi, J presumably under Section 11(b) of the Bail Act which allows a court of equal jurisdiction in its discretion to entertain an application for bail pending the hearing of an appeal. His Honour was not the trial judge. His Honour refused the application on the grounds that the applicant failed to show that any change of relevant circumstances had occurred since bail was last refused and that the applicant did not demonstrate or establish by appropriate evidence why her continued detention was not justified.

7. A number of affidavits have been filed to support the application and the applicant relies on and reads the following affidavits:

1. Affidavit in Support of the applicant sworn and filed on 20 February 2020;
2. Affidavit of Guarantor of Newman Limbao sworn and filed on 20 February 2020;
3. Affidavit of Guarantor of Jimmy Kabata sworn and filed on 20 February 2020; and
4. Affidavit of James Morog sworn and filed on 25 February 2020.

7. The respondent, Independent State of Papua New Guinea, has not filed any affidavit in response to the application.

8. Section 11 of the Bail Act states:

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.

9. The principles that govern the grant or refusal of bail pending appeal are well settled in this jurisdiction. Section 11(c) of the Bail Act confers upon the Court a wide discretion to grant or refuse bail, but the discretion is only exercised upon an applicant showing that there are matters that constitute exceptional circumstances prior to bail being allowed pending appeal: Arthur Gilbert Smedley v State [1978] PNGLR 452, John Jaminen v The State [1983] PNGLR 122, The State v Robert Kani Yabara (No.1) [1984] PNGLR 133, Major Walter Enuma & Ors v The State [1997] SC538, Rakatani Mataio v The State (2007) SC865, and Denden Tom v The State [2007] SC914.The Supreme Court has said that it is not necessary to compile a list of circumstances which would be regarded as exceptional: The State v Robert Kani Yabara (No.1) [1984] PNGLR 133, Rakatani Mataio v The State [2007] SC865. What constitutes exceptional circumstances depends on the whole of the circumstances of each particular case: The State v Robert Kani Yabara (No.1) [1984] PNGLR 133, Rakatani Mataio v The State (2007) SC865. The main reason, why post-conviction, an applicant must show that there are exceptional circumstances that warrant bail, is that the constitutional right of presumption of innocence and right to bail are no longer available to a prisoner/applicant after conviction: Rolf Schubert v The State (1979) PNGLR 66, Rakatani Mataio v The State (2007) SC865.

10. In the present case, the applicant essentially has raised three matters which she contends would constitute exceptional circumstances. The first is that there is a strong prospect of success of appeal on both conviction and sentence. The second is that prima facie, the grounds of appeal are of an arguable nature. The third is that unless released on bail, the applicant is bound to serve her short custodial sentence of ten months which will end before 5 October 2020 taking into account remission of sentence before the substantive appeal is heard and determined.

11. The respondent contends that the grounds relied on by the applicant are not matters that would constitute exceptional circumstances so the Court should dismiss them and refuse the application.

12. As to the strong prospect of success of her appeal, the applicant argues that the trial judge erred in fact and in law on the grounds that in convicting her for misappropriation of funds paid to her account for hire cars on two occasions and stealing; first, she was on official duty travel and there was no evidence to the contrary; and second, there was no direct evidence to establish the charges and the circumstantial evidence went to show that another person had clear access to the office at all material times. In addition, it was argued that the trial judge erred in law in relying on the evidence of the complainant whose evidence was clearly lacking in weight and reliability due to the existence of apparent inconsistencies in the evidence and the trial judge failed to give reasons why he accepted and relied on the evidence of the complainant. Finally, it was submitted that verdicts of not guilty for all the counts ought to have been returned as there was no direct evidence and the circumstantial evidence relied on was very weak to substantiate the charges.

13. The submissions of the applicant in essence amount to an invitation for the Court to consider the merits of the grounds of appeal. The Supreme Court has stated that if it were to consider the prospect of success of the appeal, it would be tantamount to determining the appeal. Hence, not only would it be an abuse of process, but dangerous as it was not the function of the Court to venture into that arena at this stage to express an opinion on the appellant’s prospect of success or otherwise in her appeal. see Rakatani Mataio v The State (2007) SC865, Denden Tom v The State (2007) SC914, Dr. Theo Yasause v The State (2011) SC1112, Re Application of Paul Tiensten (2014) SC1343 and Dr Theo Yasause v The State (2014) SC1381.

14. In the circumstances and in consonance with the above principles, we find that the first ground of the application does not have merit and is dismissed.

15. As to the applicant’s contention that the grounds of appeal are of an arguable nature, we think that in the circumstances of the present case, this argument has no merit. A similar argument may have merit where it is so obvious on the face of the Court’s records and the grounds of appeal are not frivolous: Re Ilett (1974) PNGLR 49. Otherwise, it would be tantamount to considering and delving into the merits of the grounds of appeal as we have alluded to earlier. Consequently, we dismiss this ground of the application.

16. As to argument that unless released on bail, the applicant is bound to serve her short custodial sentence of ten months which will end before 5 October 2020 taking into account remission of sentence before the substantive appeal is heard and determined, the general rule is that bail will not be granted if the appeal can be speedily heard: Paul Jerol Aisi v Malkom Bai (1976) N52. The applicant has been in prison since 5 December 2019. As of the date of hearing this application, the applicant would have served two months and twenty days of the custodial sentence leaving about seven months and eleven days still to serve. As to whether or not the applicant is accorded remission of her sentence, it is a matter within the province of the administration of the Correctional Service. No evidence has been produced by the applicant as to the steps she has taken since the filing of the appeal, but it has been submitted that she is awaiting the transcript of the relevant National Court proceedings before compiling the appeal book. We consider that the ground has merit considering the real practicalities of progressing the appeal to an expeditious hearing before the Court such as complying with the relevant Supreme Court Rules under Order 7 as to the preparation and compilation of the appeal book, availability of the relevant transcript of proceedings in the National Court, cooperation of parties, processing the appeal thorough directions hearing and the eventual securing of a date for hearing either in Waigani or Lae. As to how the hearing of the appeal can be fast-tracked ultimately is within the applicant’s power and control. In the circumstances of this case, we are persuaded that this ground constitutes an exceptional circumstance.

17. We have dismissed two of the three grounds. In the exercise of our discretion, we will have to grant the application based on the last ground for the applicant to be released on bail pending the hearing of her appeal.

18. The orders of the Court are:

1. The application for bail pending the hearing of the applicant’s appeal pursuant to Section 11(c) of the Bail Act is granted.
2. The applicant shall pay cash bail of K2,000.00.
3. Newman Limbao of Chinatown Police Station, Lae and Jimmy Kabata of Hawkeye Security Services, Lae are both approved as guarantors for the applicant.
4. Newman Limbao and Jimmy Kabata shall each pay cash surety of K1,000.00.
5. Newman Limbao and Jimmy Kabata shall ensure that the applicant complies with all her bail conditions.
6. The applicant shall be released from custody only upon production of official receipts evidencing payment of the applicant’s cash bail and guarantors’cash sureties.
7. Whilst on bail, the applicant shall be on good behaviour at all times and not consume any alcohol, homebrew or illicit drugs.
8. The applicant’s passport shall immediately be surrendered to the Registrar of the National and Supreme Courts through the Assistant Registrar of the National Court in Lae pending the determination of the appeal.
9. The applicant shall reside with her partner and children at their residence at Crane Street, Lae whilst on bail, but where there is a change of her residential address, the applicant must within twenty four hours of the change inform the Registrar of the National and Supreme Courts and her lawyer in writing of the new address.
10. The applicant shall not leave Morobe Province without the approval of the Court.
11. Until the determination of the applicant’s appeal or subject to any other direction of the Court, she shall report to the National Court Registry in Lae every month starting on Monday, 2 March 2020 between the hours of 09:00 am and 03:30 pm and monthly thereafter.

________________________________________________________________
L.B. Mamu, Public Solicitor: Lawyer for the Applicant
P. Kaluwin, Public Prosecutor: Lawyer for the Respondent