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Smedley v The State [1978] PNGLR 452 (21 November 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 452 - Arthur Gilbert Smedley v The State 

[1978] PNGLR 452

N173

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ARTHUR GILBERT SMEDLEY

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Wilson J

11 November 1978

17 November 1978

21 November 1978

CRIMINAL LAW - Practice and procedure - Bail application - After conviction - Conviction by National Court - Exceptional circumstances must be shown - What constitutes exceptional circumstances - Imminence of court vacation - Grounds of appeal arguable - Need to instruct counsel where no fresh evidence - Personal hardship and/ or circumstances must be extraordinary - Application refused.

On an application for bail by an appellant who had been convicted by the National Court of offences of “fraudulent false accounting” and “false claim by officials” and sentenced to two terms of imprisonment, one for one year and nine months and the other for twelve months (to be served concurrently) the main ground relied upon was that the grounds of appeal were of an arguable nature and other grounds argued were the appellant’s need to instruct counsel, personal circumstances involving care of his family, and likely delay in hearing of appeal:

Held

(1)      A person who has been convicted and lodged an appeal against that conviction and is seeking release on bail pending the hearing of that appeal pursuant to s. 11 of the Bail Act 1977 must, in order to be admitted to bail, show exceptional circumstances.

Rolf Schubert v. The State [1978] P.N.G.L.R. p. 394 followed.

Re Ilett [1974] P.N.G.L.R. 49 referred to.

(2)      The fact that a court vacation is imminent and might cause delay in the hearing of the appeal for several months is not an “exceptional circumstance”.

R. v. Wood [1970] Q.W.N. 3 referred to.

(3)      That prima facie the grounds of appeal are of an arguable nature does not of itself constitute an “exceptional circumstance”.

R. v. Southgate (1960) 78 W.N. (N.S.W.) 44 at p. 44 and Hayes v. R. (1974) 48 A.L.JR. 455 referred to.

(4)      Semble, the necessity for an appellant (applicant for bail) to instruct his counsel cannot of itself (except perhaps where the appeal is based on the existence of fresh evidence) constitute an “exceptional circumstance”.

(5)      Semble, personal hardship or personal circumstances sufficient to constitute an “exceptional circumstance” need to be of an “extraordinary” nature.

(6)      Viewed as a whole the matters advanced for the applicant did not establish a case of “exceptional circumstances” and the application for bail should be dismissed.

Bail Application

This was an application for bail, pursuant to s. 11 of the Bail Act 1977 by an appellant who had been convicted and sentenced by the National Court on charges of “fraudulent false accounting” and “false claim by officials”.

Counsel

D. Kendell and R. J Lemercier, for the applicant.

A. L. Cassells and G. Poole, for the respondent.

Cur. adv. vult.

21 November 1978

WILSON J: The applicant in this case seeks to be granted bail after he had been found guilty of the offences known as “fraudulent false accounting” and “false claim by officials” and his being sentenced by Raine Dep. C.J on 10th November, 1978 to two sentences of imprisonment with hard labour, one for one year and nine months and the other for twelve months (to be served concurrently). Later the same day the applicant lodged a notice of appeal against conviction and against sentence. In the normal course of events this appeal is unlikely to be heard before the end of this year and it may not be heard until February or March 1979. In the meantime the applicant seeks to be granted bail pending the hearing of his appeal.

This application follows closely upon a similar application made to Raine Dep. C.J in Rolf Schubert v. The State[dcliii]¹. I have read his Honour’s judgment in that case and, without expressing any view as to the application of the relevant legal principles to the facts of that case, I find myself entirely in agreement with the statements of legal principle contained therein. I too would have taken a different course to that adopted by Lalor J in Re Ilett[dcliv]². I too conclude that the balance of judicial opinion seems to require that an applicant in a case such as this must show that there are matters in existence which constitute “exceptional circumstances” before bail is allowed between conviction and appeal. I would only add to the authorities referred to in Schubert’s case (supra) the following: R. v. Patmoy[dclv]³ and R. v. Southgate[dclvi]⁴.

In the context of the present application the fact that a vacation is imminent which might cause the hearing of the applicant’s appeal to be delayed for several months is not in itself a “special circumstance”; a fortiori it is not an “exceptional circumstance”. (R. v. Wood[dclvii]⁵.) I further conclude that the cumulative effect of that matter and the principal reason, relied upon by the applicant’s counsel and to which I will next refer, does not establish a case of “exceptional circumstances”.

The principal reason relied upon by Mr. Kendell in making this application was that, prima facie, the grounds of appeal are of an arguable nature. Assuming arguendo that, prima facie, the grounds of appeal in this case are of such a nature, I am not persuaded by the authority of Ilett’s case (supra) nor by any other authority that that of itself constitutes an “exceptional circumstance”. That circumstance does not of itself immediately conjure up in my mind the idea of something exceptional. If such a ground were to constitute an “exceptional circumstance”, whether a vacation was imminent or not, the overwhelming majority of appellants (and certainly all those whose appeals cannot be said to be frivolous) would be entitled to bail after conviction and pending appeal. That, in my opinion, is not the sort of state of affairs the legislature intended to bring about when it vested the courts with the wide discretion contained in s. 11 of the Bail Act 1977. It is to be remembered that under s. 42(6) of the Constitution and the Bail Act, the right to bail of an ordinary accused person (i.e. a person accused of any crime other than treason or wilful murder) is guaranteed to him “at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require”. No such right is preserved to him after conviction, rather suggesting that the legislature contemplated that bail would be refused at that stage unless circumstances could be shown to exist which justified the exercise of the judicial discretion. I acknowledge that s. 11 of the Bail Act nowhere mentions “exceptional circumstances” (or even “special circumstances” — the phrase preferred by Lalor J in Ilett’s case (supra)). In my opinion this judicial gloss has been put upon the section because of the view that “the guilt of the person accused has been established ... in what must be taken until the contrary be shown to be a trial properly conducted without error of law” (R. v. Southgate (supra) Sugerman J at p. 44).

In Hayes v. R.[dclviii]⁶, a decision cited by Mr. Poole, Mason J pointed out that bail is not granted in every case where an appeal, if successful, would result in the acquittal of an applicant serving a term of imprisonment.

It is true that the favourable prospect of success of the appeal is a factor which in reported cases has weighed with judges granting bail, generally, I think, with one or more other factor. I am not in a position to express any opinion as to the applicant’s chances of success upon his appeal against conviction, but I am in a position to say that insufficient material has been placed before me upon which I could say that success on the appeal was either inevitable or highly probable. I can say (and I do not think I should say more than this) that as far as the appeal against sentence is concerned, prima facie, the ground of appeal relied upon is of an arguable nature.

This application first came on for hearing on Friday 10th November and the matters canvassed on that day are those that I have dealt with in this judgment so far. I adjourned consideration of this application for the purpose of giving counsel for the applicant an opportunity of researching the matter in a little more depth and to discover, if they could, any additional authorities which might assist the applicant’s case.

On Friday 17th November the hearing resumed and Mr. Kendell, who had had an opportunity to do some further research in the meantime, frankly conceded that the law in Papua New Guinea, as elsewhere, is that for an applicant to be granted bail pending the hearing of his appeal the Court must find that “exceptional” or, at the very least, “special” circumstances exist.

Mr. Kendell then sought and obtained leave to file and rely upon his own affidavit sworn on 17th November, 1978. He then attempted to persuade me that, having regard to all the facts in this case (including those canvassed by me in the first part of this judgment and the facts deposed to in the affidavit) I should exercise my discretion to grant the applicant bail. The additional facts may be summarized as follows:

1.       The necessity for the applicant to instruct his newly engaged counsel in an appeal against conviction and sentence following a trial of considerable length and involving matters of considerable complexity.

It must be borne in mind that the applicant is seeking to instruct his counsel in relation to an appeal against conviction and sentence. Such instructions could be given whilst the applicant is in custody albeit not as conveniently as if he had his freedom. The matters about which instructions would need to be given incidental to an appeal would necessarily be more limited than in the case of an accused person instructing his counsel prior to or even during a trial. I note that it has not been suggested that a ground of the appeal is the existence of fresh evidence. Had that been the case, the availability of an appellant to instruct his counsel might be essential and this might in turn constitute an “exceptional circumstance”.

2.       The absence of any evidence that the applicant obtained any material benefit from the crimes of which he was convicted.

In this context it is important to understand what the learned Deputy Chief Justice said when sentencing the applicant. His Honour said in his remarks on sentence, which should, of course, be read in the light of the circumstances of the whole trial and, especially, be read in the context of the reasons for conviction,

“There is no evidence of material benefit to the prisoner but that is not the end of the matter because I have found that what he did was dishonest and intended to bring about a situation from which he could benefit.”

3.       The existence of some personal circumstances including the applicant’s intention and wish to assist his wife in establishing a new business, the applicant’s desire to perform his duties as the executor of the estate of a deceased relative, the applicant’s wish to find alternative accommodation for his wife and family, the applicant’s concern about his pensioner father whom he has hitherto assisted to support, and the applicant’s desire to assist in the investigation of, and possible conduct of, a mining venture.

Several of the abovementioned circumstances have come about as a result of the conviction and sentence which are the subject of the applicant’s appeal. They represent the worries and concerns of many a prisoner who finds himself in custody for the first time. I am not persuaded that any of those personal circumstances in themselves amount to an “exceptional circumstance”. No particular hardship, to say nothing of a hardship of an “extraordinary” nature (to adopt Mr. Kendell’s own word), was pointed to. Some of the duties and responsibilities about which the applicant is understandably concerned could in any event be performed and carried out whether the applicant is in custody or not.

Having read the authorities cited by Mr. Kendell and, in particular, R. v. Wise[dclix]⁷, R. v. Wood (supra), R. v. Selkirk[dclx]⁸, R. v. Klein[dclxi]⁹, and Rolf Schubert v. The State (supra) and those to which Mr. Poole directed my attention, and having reflected upon the argument of counsel, I conclude that the matters advanced in this case (including the additional facts deposed to in the affidavit) do not, viewed as a whole, establish a case of “exceptional circumstances”.

For these reasons this application for bail is refused.

Application for bail refused.

Solicitor for the applicant: McCubbery Train Love & Thomas.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.

[dcliii][1978] P.N.G.L.R. 394.

[dcliv][1974] P.N.G.L.R. 49.

[dclv](1944) 62 W.N. (N.S.W.) 1.

[dclvi](1960) 78 W.N. (N.S.W.) 14.

[dclvii][1970] Q.W.N. 3.

[dclviii](1974) 48 A.L.JR. 455.

[dclix](1924) 17 Cr. App. R. 17.

[dclx](1925) 18 Cr. App. R. 172.

[dclxi] (1932) 23 Cr. App. R. 173.