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Kelewaki v State [2003] PNGLR 2 (25 February 2003)

NATIONAL COURT OF JUSTICE

JACOB WAMA KELEWAKI

V

THE STATE

WAIGANI: SALIKA J

25 February 2003

CRIMINAL LAW — Practice and Procedure — Bail Application after conviction by National Court — Exceptional circumstances to be shown — What are exceptional circumstances — Application refused.

Facts

The applicant was convicted in the National Court for misappropriation and sentenced to 8 years imprisonment. He filed an appeal to the Supreme Court and while the appeal was pending he applied for bail under s 11 of the Bail Act.

Held

1. The Court has a discretion to grant bail pending an appeal, but such bail would only be granted in "exceptional circumstances".

2. "Arguable grounds of appeal," a need to prepare the appeal, fresh evidence, or the need for treatment of a serious illness, do not amount to "exceptional circumstances".

3. The applicant has not established any "exceptional circumstances" for the Court to exercise its discretion in his favour.

Papua New Guinea cases cited

Jaminan v The State [1983] PNGLR 722.
Smedley v The State [1978] PNGLR 452.
Yaki v The State [1990] PNGLR 513.

Counsel

Y Wadau, for applicant.
R Auka, for respondent.

25 February 2003

Salika j. The applicant in this matter was convicted on a charge of misappropriation and sentenced to 8 years imprisonment. He is now a serving prisoner at the Beon jail in Madang.

He has filed an appeal to the Supreme Court and the appeal is now pending hearing. While the appeal is pending the hearing he has also filed this application for bail under s11 of the Bail Act. Under s11 of the Bail Act the Court has a discretion to grant bail pending appeal. The section does not specifically provide what factors or consideration should be taken into account when considering bail pending an appeal. The court have held through over the years that an appeal for bail pending appeal must show "exceptional circumstances" in order to be granted bail. The cases of John Jaminan v The State (1983) PNGLR 722, Arthur Gilbert Smedly v The State (1978) PNGLR 452, Yaki v The State (1990) PNGLR 513 and many more other cases bear testimony to the situation, that is that the applicant in this situation must show "exceptional circumstances" in order to be granted bail.

What are "exceptional circumstances' have not been clearly spelt out by the courts though. "Arguable grounds of appeal" has been ruled out to be an exceptional circumstance. Similarly "he needs to be out on bail to prepare his appeal" has been ruled out as exceptional circumstances. Moreover it has been held by the courts that personal hardship or personal circumstance sufficient to establish a case of exceptional circumstances need to be of "extraordinary" nature.

In his application the applicant submitted that he will be seeking leave to adduce fresh evidence to show that the funding he received from the Gaming Board were funds that were at his disposal to be used at his discretion. He submitted that he will be arguing that the National Court (trial court) paid no attention that the funds were a matter for him to be used at his discretion. The Supreme Court has said in the past that that type of ground for bail is not an exceptional circumstance. The fact that he intends to call fresh evidence is not an exceptional circumstance. I am bound by the Supreme Court's decision on that count.

The remaining substantive ground for bail is the personal circumstance of the applicant. His doctor has deposed to an affidavit saying that the applicant is suffering from severe genital herpes, Urethritis, dysuria, polyuria and haematuria. As a result his right kidney is affected. The doctor said in the case of non treatment he would have complications.

The doctor is resident in Madang not far from the Beon jail where the applicant is currently living. The doctor does not say if he is prevented from treating the applicant at Beon Jail or if the applicant has been prevented from coming to him for treatment. The question that the court asks is whether the applicant's medical condition is "such that it is considered to be of "extraordinary" nature.

It has been submitted by the State that the applicant has not produced any evidence that he has been denied access to his doctor for treatment or that his doctor has been prevented from seeing him at the jail. In the absence of such evidence the state submitted that his medical condition cannot be regarded as an "extraordinary" case.

With respect I agree with the State on the submission. On the ground of personal circumstances an extraordinary case has not been made out. The applicant is still accessible to medical attention.

I restate what was said in the case of Arthur Gilbert Smedley v The State [1978] PNGLR 452. I think this is the rationale behind the courts being very cautious and careful not to readily grant bail after conviction:-

The courts are vested with a wide discretion under this section. It is to be remembered that under s 42(6) of the Constitution and under the Bail Act, the right to bail of an ordinary person (ie, a person accused of any crime other than treason or wilful murder) is guaranteed to that person "at all times from arrest or detention to acquittal or conviction unless the interest of justice otherwise requires." No such right is preserved to the person 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.

In other words the judicial discretion to grant bail after conviction must be exercised sparingly and with great care and caution. This is because the trial judge would have been in a better position to assess all the evidence and then made a decision. The trial judge's decision should be viewed with respect. It is deemed that his or her decision is correct until it is overturned by the Supreme Court. That may have been the reason why and how the words "exceptional" and "extraordinary" came to be adopted by the courts.

The end result is that in my view the applicant has not established any exceptional circumstances for this court to exercise its discretion in his favour.

The application is dismissed.

Lawyer for the applicant: Young Wadau Lawyers.
Lawyer for the respondent: Public Prosecutor.