Arthur Gilbert Smedley v The Independent State of Papua New Guinea [1978] PNGLR 452

• Jurisdiction: Papua New Guinea
• Judge: Wilson J
• Judgment Date: 21 November 1978
• Court: National Court
• Citation: [1978] PNGLR 452
• Year: 1978
• Judgement Number: N173

Full Title: Arthur Gilbert Smedley v The Independent State of Papua New Guinea [1978] PNGLR 452

National Court: Wilson J

Judgment Delivered: 21 November 1978

1 Criminal law—practice and procedure—bail—application for bail made after conviction in National Court and pending appeal—exceptional circumstances—imminence of vacation—grounds of appeal arguable

2 Criminal law—practice and procedure—appeal—bail—quaere—whether necessity for applicant to instruct counsel in an appeal based on fresh evidence an "exceptional circumstance"—s11 Bail Act 1977

3 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 s11 of the Bail Act 1977 must, in order to be admitted to bail, show exceptional circumstances.

Rolf Schubert v The State [1978] PNGLR 394 followed.

Re Ilett [1974] PNGLR 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] QWN 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 WN (NSW) 44 at 44 and Hayes v R (1974) 48 ALJR 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 s11 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".

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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 DCJ on 10 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...