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Mulas v The Queen [1969-70] PNGLR 7 (5 May 1969)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 7 - Himson Mulas v The Queen

[1969-70] PNGLR 7

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

HIMSON MULAS

V.

THE QUEEN

Port Moresby

Frost J

2 May 1969

5 May 1969

CRIMINAL LAW - Bail - Conviction - Bail pending appeal to Full Court - Supreme Court (Full Court) Ordinance 1968, s. 12 (1) (e).

A convicted person who appeals to the Full Court will be granted bail pending the determination of the appeal only in very exceptional circumstances.

R. v. Manning[1935] VicLawRp 61; , [1936] V.L.R. 84; R v. Byrne, [1937] Q.W.N. 30 and R. v. Southgate (1961), 78 W.N. (N.S.W.) 44, followed. R. v. Hopkins[1924] VicLawRp 43; , [1924] V.L.R. 329, referred to.

Application for Bail.

On 10th February, 1969, Himson Mulas (the applicant) was convicted of dangerous driving causing death (R. v. Himson Mulas, [1969-70] P. & N.G.L.R. 1) and was sentenced to twenty-one months’ imprisonment with hard labour. On 20th March, 1969, the Supreme Court (Full Court) Ordinance 1968 came into effect; and, having instituted appeals against his conviction and sentence, the applicant applied that he be admitted to bail pending his appeals. Further facts appear in the reasons for judgment hereunder.

Counsel:

Broadley, for the applicant.

Wilson, for the Crown.

Cur. adv. vult.

5 May 1969

FROST J:  On 10th February, 1969, the appellant was convicted of dangerous driving causing death and sentenced to imprisonment with hard labour for twenty-one months. On 20th March, 1969, the Supreme Court (Full Court) Ordinance 1968 came into effect. Pursuant to an order of this Court, the time for appeal was extended, and, on 28th March, 1969, notice of appeal against sentence only was given. On 2nd May, 1969, on application made before me, I granted a further extension of time for an appeal against conviction, and notice of appeal against conviction was thereupon given. An application to admit the appellant to bail pending appeal was also made and as this was the first such application made before me, I reserved it for consideration until today.

The principles upon which bail is granted to an appellant who has been convicted are well established under similar legislation in England and the Australian states. In Victoria, bail is not granted in cases of this kind “save in very exceptional circumstances”: R. v. Manning[xii]¹, per Gavan Duffy J. In New South Wales, the principles applicable have been stated as follows:

“It is only in special circumstances that bail is granted, pursuant to the powers conferred by s. 18 of the Criminal Appeal Act of 1912, to an appellant before this Court. The guilt of the appellant having been established by the verdict of a jury in what must be taken, until the contrary be shown, to have been a trial properly conducted and without error of law, it is most unusual that an appellant should be admitted to bail pending the determination of his appeal or of an application for leave to appeal against his conviction or against his sentence.”: R. v. Southgate[xiii]² per Sugerman J.

See also R. v. Byrne[xiv]³ . In my opinion, the discretion conferred under the Supreme Court (Full Court) Ordinance, s. 12(1) (e), should be exercised upon the same principles.

The grounds of appeal against conviction, which are numerous, are in substance that the trial judge erred in admitting evidence of the accused taking drink, and of the beliefs and opinions of Crown witnesses, presumably as to the effect of the appellant having taken liquor, admissions made to a police officer, the conviction was against the weight of evidence and that the trial judge had misdirected himself as to the onus of proof. The grounds upon which Mr. Broadley supported the application for bail were as follows:

(1)      The application was not opposed by the Crown.

(2)      The grounds of appeal were substantial, as deposed to by Mr. Lalor, the Public Solicitor.

(3)      The appellant has been in custody for almost three months.

(4)      Previous delay was caused only by a change of solicitors acting for the appellant.

(5)      The appellant, who is a medical practitioner, has shown that he is of good character, not having prior convictions; he is married with children and thus is unlikely to abscond.

(6)      Having been granted bail pending trial, he answered that bail.

(7)      The date of the next Full Court sitting is not until the 23rd June, 1969. However, in the meantime, the Chief Justice has specially appointed the 26th May, 1969 for the hearing of the appeal.

As to these grounds, the fact that the application was not opposed by the Crown does not relieve me of the responsibility of determining the matter according to proper principles, and in this case I was not informed of any special circumstances that the Crown had taken into account. Whether the grounds of appeal are substantial can only be determined by examination of the evidence, which has not been placed before me, and the guilt of the accused having been established by a judge, as Sugerman J. stated, supra, it must have been taken to be properly established until the contrary is shown.

Mr. Broadley relied on R. v. Hopkins[xv]⁴, but each case must be decided on its own facts and the conclusion I have come to is that the appellant has failed to show “very exceptional circumstances”, so that bail should be refused.

Application dismissed.

Solicitor for the applicant: W. A. Lalor, Public Solicitor.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.