SC1973
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP NO. 7 OF 2019

BETWEEN
OLIVIA WAROME
Applicant

AND
THE STATE
Respondent

Waigani:  Makail J
2020: 17th & 29th June

SUPREME COURT – Application for bail –Bail sought after conviction and sentence – Exceptional circumstances – Grounds of – Lack of or insufficient time to prepare appeal – Lack of rehabilitation – Welfare of 2 year old child in prison – Welfare to three older children living with applicant’s mother – Poor and unhealthy food - Poor and unhealthy living conditions – Overcrowding – Threat of Covid – 19 - Bail Act – Section 11(c) – Section 10(1)(c)

Cases Cited:

Rakatani Mataio v. The State (2007) SC865

Counsel:

Applicant in person
Mr. D. Mark, for the Respondent

RULING ON BAIL

29th June, 2020

1.	MAKAIL J:   This is an application for bail following conviction and sentence by the National Court pursuant to Section 11(c) of the Bail Act and Section 10(1)(c) of the Supreme Court Act.  These provisions confer power on the Supreme Court to grant bail to an appellant after conviction and sentence.

Brief Facts

2.	The applicant Ms Olivia Warome was convicted on one count of manslaughter after she pleaded guilty to the offence on 7th March 2018.  She was sentenced to a term of 10 years imprisonment. 

3.	On 15th March 2018, she filed an appeal against sentence and it is pending hearing by the Supreme Court.

Principles of Bail After Conviction and Sentence

4.	There is no issue that as she has been convicted of an offence, bail is no longer available to her under the Constitution and if she wants bail, she must show that exceptional circumstances exists to be granted bail: Rakatani Mataio v. The State (2007) SC865.

5.	What constitutes exceptional circumstances is not defined.  In this case, Ms Warome raised six grounds which she says constituted exceptional circumstances and merits a grant of bail for her.  These are:

•	Lack of or insufficient time to prepare and prosecute her appeal.
•	Lack of rehabilitation activities in prison.
•	Welfare of her two year old child.
•	Welfare of her three other children living with her mother.
•	Poor and unhealthy diet.
•	Poor and unhealthy living conditions and overcrowding in prison facility.

Lack of or insufficient time to prepare and prosecute appeal

6.	Under this ground, she says that the time spent in prison is devoted to daily routine and hard labour work with no or very little time for her to attend to her appeal.

7.	The State says that this ground does not make her case exceptional and bail should be refused.

8.	I uphold the State’s submission. This ground is contrary to the presumption of innocence because where a person has been convicted, the presumption of innocence no longer applies. As a convicted prisoner, she is required to serve her term of sentence.

9.	Further, this ground has not been considered as constituting an exceptional circumstance or making an accused who has been found guilty of committing an offence any different from other fellow prisoners who have not filed an appeal.  In other words, it would be unfair to a prisoner who has not appealed a conviction and/or sentence to serve his or her sentence while one who has, is allowed time out of prison to prepare his or her appeal because of lack of or insufficient time.

10.	This ground is dismissed.

Lack of rehabilitation

11.	Ms Warome says that there is lack of rehabilitation by the prison authority.  The daily routine is hard labour work and it does not promote and help in the rehabilitation of prisoners including her.  The State says that this ground does not constitute as exceptional circumstances.

 12.	Again I agree with the State.  This ground does not make her case exceptional. What the prison authority does and has established for its programmes are matters within its mandated statutory functions under the relevant legislation.  Prisoners including Ms Warome who is serving an imprisonment term are obliged to comply with them as part of the time in serving their sentences.  This ground is dismissed.

Welfare of 2 year old child in prison

13.	Under this ground, Ms Warome says that the prison facility and environment is not conducive and adverse to her 2 year old child who has been living with her since the age of 4 months and her incarceration.

 14.	Again, the State says that this ground does not make her case exceptional. I agree.  The welfare of a child of a prisoner who is serving time for a crime has wider implications such as what the Government of the day and the prison authority may do or not do for these group of prisoners.  They may decide that it is not their responsibility to provide separate living quarters in the prison facilities or compound that will accommodate the prisoner’s children (babies).  That decision rests with them and must be made by them because it has financial, legal and logistical implications.

15.	Until there is a definitive position by those in authority, Ms Warome’s plight will be considered as a reminder to those in authority to take a serious look at this issue and come up with a clear and workable solution for these class of prisoners.  For now, Ms Warome will be treated in the same way as other fellow prisoners. 

16.	This ground is dismissed.

Welfare of three other older children living with her mother

17.	In relation to this ground, Ms Warome says that she be given bail to attend to the welfare and well-being of her three older children who are living with her mother. 

18.	Her husband Kume Keware who has also filed an affidavit in support of the application says that he is presently in custody after being arrested and charged for break and entry and has not been caring and providing for the children.

19.	Her request is further support by her mother Jolly Warome who has also filed an affidavit deposing that she is now left with the burden of raising the children alone at the same time working as a lecturer at International Training Institute at Badili. It is compounded by the Covid – 19 pandemic where her children are at greater risk of being infected by the disease given its spread globally.

20.	The State submits that this ground does not make her case exceptional for her to be granted bail.

21.	The matters raised by Ms Warome are noted.  They are real live issues and challenges when a person convicted of a crime will encounter and must face.  Equally, they are natural consequences of a conviction and sentence where a term of imprisonment is imposed.  The fact that Ms Warome has filed an appeal against her sentence does not change her status nor do the matters she has asked the Court to accept make her case exceptional and she be granted bail. 

Poor and unhealthy food

22.	Under this ground, Ms. Warome says that food provided by the prison authority is poor and unhealthy and poses a serious threat to her baby and her health.

23.	The State makes the same submission that this ground does not constitute an exceptional circumstance and bail should be dismissed. 

24.	Accepting Ms Warome’s assertion that food is poor and unhealthy, it does not necessarily follow that it poses a serious health risk to her and her baby.  There must be evidence from relevant Health Authority to verify that provision of poor and unhealthy food has led to prisoner’s falling ill or dying to justify grant of bail. In any case, provision of food, whether it is up to the quality and level of her expectation is a matter for the prison authority to attend to.

25.	However, I agree with the State’s submission it does not constitute an exceptional circumstances.  It is dismissed.

Poor and unhealthy living conditions including overcrowding in prison

26.	As for this ground, Ms Warome says that the living conditions in the prison are poor and unhealthy.  The toilets and showers are unfit for use, have leaking taps and blocked toilet pipes.  The sleeping space is small and overcrowded due to the high number of female prisoners.

27.	She further says that the threat of prisoners contracting serious diseases and falling seriously ill and even dying is real when the country is presently under Covid-19 pandemic lock-down.  It makes her case exceptional and she should be granted bail.

28.	Again, the State says that this ground should be dismissed because it does not constitute an exceptional circumstance. 

29.	The Courts have held that poor and unhygienic living conditions in prison are not grounds constituting exceptional circumstances for grant of bail.  They may be issues for the Court to enforce against the prison authority under Section 57 of the Constitution by ordering the prison authority to fix but not grounds for release of prisoners into society. Added to that, there must be evidence to verify that the prison accommodation/living quarters including ablution blocks are beyond human habitation.

30.	Similarly, they are not grounds to grant bail in a case where a prisoner has filed an appeal against her sentence and seeks bail pending the appeal.  For these reasons, I uphold the State’s submission and dismiss this ground.

Order

31.     The application for bail is refused.

Ruling and orders accordingly.
________________________________________________________________
The Applicant In person					
Public Prosecutor: 	Lawyer for Respondent