SC2336

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APP NO 15 OF 2022

PHILEMON NANUK
Applicant

V

THE STATE
Respondent

Madang: Cannings J
2022: 23rd December

BAIL – application to Supreme Court for bail during hearing of appeal against conviction – Bail Act, s 12 – appeal heard by full court of Supreme Court and adjourned for decision – whether single Judge who was not a member of the Court hearing the appeal may hear the bail application.

The applicant applied to the Supreme Court for bail during the hearing of his appeal against conviction, under s 12 of the Bail Act. His appeal was heard by the full court of the Supreme Court on 24 August 2022. The Court reserved its decision. The question was raised whether a single Judge of the Supreme Court who was not a member of the Court that heard the appeal had jurisdiction to hear the bail application. 

Held: 

(1)	Section 12 of the Bail Act provides that where a court hearing an appeal adjourns proceedings, it may grant bail to the appellant.

(2)	The court that heard the applicant’s appeal was the full court of the Supreme Court and it is that court, constituted by the same Judges, which has jurisdiction to hear the bail application. 

(3)	A single Judge of the Supreme Court only has jurisdiction to hear a bail application if expressly conferred that power, for example under ss 5(1)(e) and 10(1)(c) of the Supreme Court Act, when an appellant applies for bail pending (ie before) the hearing of their appeal against conviction or sentence. 

(4)	A single Judge has no jurisdiction under s 12 of the Bail Act. 

(5)	Ordered: that the bail application be referred to the full court of the Supreme Court that heard the applicant’s appeal. 

Cases Cited

The following case is cited in the judgment:

Theo Yasause v The State (2014) SC1381

Counsel

S Asivo, with leave, for the Applicant

23rd December, 2022

1.      CANNINGS J:  Philemon Nanuk applies to the Supreme Court for bail during the hearing of his appeal against conviction for a child sex offence, under s 12 of the Bail Act, which states:

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

2.     The applicant’s appeal was heard by the full court of the Supreme Court constituted by Kassman J, Kangwia J and Miviri J on 24 August 2022. The Court reserved its decision and it remains reserved. 

3.     When the application came before me, sitting as a single Judge of the Supreme Court, I raised the question whether I had jurisdiction to hear it. 

4.     After consulting and obtaining the consent of the applicant in a preliminary hearing, I granted leave to a friend of the applicant, Stephen Asivo, to address the Court on the jurisdictional issue. Mr Asivo submitted that I do have jurisdiction as the power to grant bail under s 12 is conferred on the court hearing the appeal – the Supreme Court – and I am a member of that Court.

5.     There is support for that view in the decision of Justice Makail in Theo Yasause v The State (2014) SC1381, in which a similar scenario existed. The applicant’s appeal against conviction was heard but not determined when the applicant made a bail application before Justice Makail, who was not a member of the Court that heard the appeal, sitting as a single Judge of the Supreme Court. His Honour ruled that he did have jurisdiction, in accordance with s 10(1)(c) of the Supreme Court Act, which states:

Any power of the Supreme Court under this or any other Act … to admit an appellant to bail, may be exercised by a Judge in the same manner as it may be exercised by the Court.

6.     His Honour reasoned as follows:

Given that s 10(1)(c) of the Supreme Court Act states that “any power of the Supreme Court under this or any other Act may be exercised by a Judge in the same manner as it may be exercised by the Court” and that s 12 of the Bail Act Chapter 340 states that where the Supreme Court “hearing an appeal adjourns proceedings, it may, in its discretion, grant bail to the appellant on application by or on behalf of the appellant,” I am satisfied that a single judge of the Supreme Court has jurisdiction to admit an applicant to bail pending the hearing and/or decision of the Supreme Court.

7.    I respectfully disagree with that view. The court that heard the applicant’s appeal is the full court of the Supreme Court constituted by three Judges and it is only that court, constituted by the same Judges, which, in my view, has jurisdiction to hear this bail application. 

8.      A single Judge of the Supreme Court only has jurisdiction to hear a bail application if expressly conferred that power, for example under ss 5(1)(e) and 10(1)(c) of the Supreme Court Act, when an appellant applies for bail pending (ie before) the hearing of their appeal against conviction or sentence. 

The Supreme Court constituted by a single Judge of the Supreme Court who was not a member of the Supreme Court that heard an applicant’s appeal against conviction has no jurisdiction to hear an application for bail under s 12 of the Bail Act. It is necessary that the application be referred to the full court of the Supreme Court constituted by Kassman J, Kangwia J and Miviri J, which heard the applicant’s appeal against conviction and on 24 August 2022 reserved its decision, for its consideration. 

ORDER 

1.	The Supreme Court constituted by a single Judge, in this case Justice Cannings, has no jurisdiction to hear the bail application.

2.	The bail application filed 9 December 2022 is accordingly referred to the Supreme Court per Kassman J, Kangwia J and Miviri J, which on 24 August 2022 heard the appeal by the applicant and reserved on the decision.
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