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Yabara, The State v [1984] PNGLR 133 (26 April 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 133 - The State v Robert Kani Yabara 

[1984] PNGLR 133

SC273

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE STATE

V

ROBERT KANI YABARA (NO. 1)

Waigani

Kapi DCJ Kaputin Woods JJ

26 April 1984

CRIMINAL LAW - Practice and procedure - Bail applications - After conviction - Exceptional circumstances must be shown - “Exceptional circumstances” - Failure to provide against conviction - Need to seek lawyer - Not grounds for exercise of discretion - Bail Act 1977, s. 11.

Held

(1)      A person who has been convicted of an offence and has lodged an appeal and who applies, pursuant to the Bail Act 1977, s. 11, for bail pending the hearing of the appeal, must in order to be admitted to bail, show exceptional circumstances.

Schubert v. The State [1978] P.N.G.L.R. 394; Smedley v. The State [1978] P.N.G.L.R. 452 and Jaminan v. The State [1983] P.N.G.L.R. 122, approved.

(2)      “Exceptional circumstances” are to be found in the whole of the circumstances of each particular case.

(3)      Failure to make provision in relation to one’s affairs against the possibility of conviction cannot amount to exceptional circumstances justifying bail pending appeal.

Giordano (1982) 6 A. Crim. R. 397 at 399; 31 S.A.S.R. 241 at 243 and R. v. Patmoy (1944) 62 W.N. (N.S.W.) 1, applied.

(4)      Accordingly, that an order for bail pending the hearing of an appeal which was granted to enable a convicted person to look for a lawyer to represent him on the appeal, should be quashed.

Cases Cited

Giordano (1982) 6 A. Crim. R. 397; 31 S.A.S.R. 241.

Jaminan, John v. The State [1983] P.N.G.L.R. 122.

R. v. Patmoy (1945) 62 W.N. (N.S.W.) 1.

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

Smedley v. The State [1978] P.N.G.L.R. 452.

Appeal

This was an appeal from an order granting bail to a convicted person pending the hearing of an appeal.

Counsel

E. Kariko, for the appellant.

J. K. Gawi, for the respondent.

26 April 1984

KAPI DCJ KAPUTIN WOODS JJ: This is an appeal by the State against the granting of bail pending an appeal from a conviction by the National Court and a sentence imposed of four years’ imprisonment with hard labour.

The respondent, Robert Kani Yabara, a member of the National Parliament, was on 22 February 1984 found guilty by the National Court that he on 16 August 1983 corruptly gave to one Clement Malaisa, then being a magistrate of the District Court in Port Moresby, the sum of K140 in consideration that the said Clement Malaisa in his judicial capacity would show favour to the said Robert Kani Yabara of Chuave. Following conviction, Robert Kani Yabara was sentenced to four years’ imprisonment with hard labour which was to run from the expiry of an existing sentence that he was currently serving.

On 14 March 1984, the respondent filed an appeal against the conviction and sentence and on 23 March 1984, he wrote to the National Court expressing his wish to apply for bail. On 27 March, the National Court heard the application for bail; this application was opposed by the State. The National Court granted the respondent bail for the reason that he needed to look for a lawyer to represent him.

The practice of the court here in Papua New Guinea has been that applications for bail after conviction are viewed with very great care indeed. The situation after conviction is a different one than before conviction when the presumption of innocence still prevails. After conviction, an applicant must show that there are matters which constitute exceptional circumstances before bail is allowed pending an appeal. This is what was stated by Raine Dep. C.J. in Schubert v. The State [1978] P.N.G.L.R. at 394 and this was followed in Smedley v. The State [1978] P.N.G.L.R. at 452 and John Jaminan v. The State [1983] P.N.G.L.R. 122.

In other jurisdictions the practice has been the same. To quote from the Court of Criminal Appeal, South Australia in the application by Giordano (1982) 6 A. Crim. R. 397 at 398:

“The inveterate practice of this Court, as of appellate courts in the other Australia States and in England, has been that bail is not granted pending appeal against conviction or sentence for an indictable crime unless the circumstances are exceptional (Ryan [1930] SAStRp 16; [1930] S.A.S.R. 125). This is also the practice in the High Court in relation to bail pending hearing of applications for special leave to appeal from a sentence of imprisonment.”

The court in the above case went on to state what is clearly the obvious — that when an accused person has been convicted of an indictable offence, sentence should follow as soon as circumstances permit. The person has been found guilty by a competent court that is to all intents final and sentence must follow. Whilst the right of appeal is there it does not revive the pre-conviction presumption of innocence.

“There is the serious risk of availability of bail pending appeal leading to a proliferation of unmeritorious appeals thereby adding to the strains of the system of justice. Persons undergoing punishment in custody are prone to seize any opportunity to secure release, perhaps leave the future to take care of itself. Appeals would be launched irrespective of the prospects of success simply in order to secure release, or perhaps with a view to creating situations which would tend to frustrate justice by making it difficult to return the appellant to prison.” Giordano at 398.

It is not appropriate to compile a list of circumstances which would be regarded as exceptional. The whole of the circumstances of each particular case must be looked at. In the case before us, the respondent had requested bail pending the appeal so that he could fix his family problems and complete some of the uncompleted jobs relating to his parliamentary duties. Further, he needs to look for a lawyer to represent him. The judge dismissed the first two reasons but granted him bail to enable him to look for a lawyer to represent him.

With respect to this reason, it is only necessary to refer to what Wilson J. said in Smedley v. The State [1978] P.N.G.L.R. 452 at 455:

“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 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 circumstances’.”

This Court adopts the above statement with respect to the need to instruct counsel on an appeal. We see no difficulty in instructing a lawyer whilst the respondent is an inmate at Bomana Institution outside Port Moresby. An inmate has the right to contact and instruct a lawyer whilst imprisoned, this right is protected by the Constitution and the respondent here in the case before us has produced no evidence that such right has been denied. With respect to any suggestions of having difficulty in managing or completing one’s affairs whilst one is imprisoned we can only say that every person who stands trial for crime must regard himself as in jeopardy of conviction. If he fails to make provision in relation to his affairs against the possibility of conviction, that failure cannot be treated as an exceptional circumstances justifying bail pending appeal: Giordano at 399 and R. v. Patmoy (1944) 62 W.N. (NSW) 1.

It was submitted for the respondent that his right to apply for bail was guaranteed by s. 11 of the Bail Act 1977 and once a judge has exercised his discretion under that section, another court should not interfere with that discretion. It was further submitted that s. 11 makes no reference to exceptional circumstances and that the difficulties the respondent was having were sufficient for the judge to exercise his discretion.

Whilst there is no dispute that s. 11 gives a discretion to grant bail, we must emphasise that judicial discretions must be exercised according to developed principles.

We are of the firm opinion that in this case before us, the judge did not have sufficient regard to the developed principles before bail is granted after conviction of an indictable offence and pending an appeal and he consequently erred in law in exercising his discretion to grant bail as there were no exceptional circumstances shown as to why bail should have been granted.

We therefore quash the bail order and order that the respondent be admitted to Bomana Corrective Institution to commence serving the sentence of four years’ imprisonment with hard labour.

Appeal allowed.

Order for bail quashed.

Lawyer for the appellant: Public Prosecutor.

Lawyer for the respondent: John K. Gawi.