Sam Tom and Denden Tom v The Superintendant Corrective Institute Services Giligil and The Independant State of Papua New Guinea (2004) N2716

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 27 October 2004
• Court: National Court
• Citation: (2004) N2716
• Year: 2004
• Judgement Number: N2716

Full Title: Sam Tom and Denden Tom v The Superintendant Corrective Institute Services Giligil and The Independant State of Papua New Guinea (2004) N2716

National Court: Lay J

Judgment Delivered: 27 October 2004

N2716

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 479 OF 2004

SAM TOM AND DENDEN TOM

Plaintiff

AND

THE SUPERINTENDANT CORRECTIVE INSTITUTE SERVICES GILIGIL

First Defendant

AND

THE INDEPENDANT STATE OF PAPUA NEW GUINEA

Second Defendant

ALOTAU : LAY, J.

2004: : 14th & 23rd Sept.& 27th October

Criminal Law – practice and procedure - Bail Act s11 – bail pending appeal - second application to a single judge – first application refused - change of circumstances – prisoner injured in custody of Correctional Service – not exceptional circumstances – bail pending appeal from conviction for murder.

Facts

The applicants applied for an order of habeas corpus and a second application for bail made to a single judge pursuant to s11 of the Bail Act pending an appeal from convictions for murder. The applicants alleged that one of them had been attacked and injured by a warder whilst in custody of the Correctional Service and that new evidence by a dying declaration and a newspaper article in which Police were alleged to have attributed the murder to someone else tended to show the applicants were not guilty.

Held:

There must be a substantial change of circumstances so that the application is different in nature to justify a second application for bail pending appeal to a single judge. The evidence produced was not sufficient change of circumstances to justify a second application to a single judge. Injury within a Correctional facility would not be a ground for bail unless the prisoner would not be safe in any Correctional facility. The dying declaration by the Applicants victim did not place the appeal in the “foregone” conclusion class. The newspaper article was of no probative value. Arguments on the merits of the appeal raised on the first application and repeated in the second application should not be re-considered because there was insufficient change of circumstances to justify the second application before a single judge.

Cases Cited:

The State v Yabara (No.1) [1984] 133

Rolf Schubert v State [1978] PNGLR 394

Arthur Smedley v State [1978] PNGLR 452

John Jaminen v State [1983] PNGLR 122

Walter Enuma v State SC538

Re Keating [1983] PNGLR133

Chong Kong Cheng v The State (1997) N1698

Yaki v State [1990] PNGLR 513

Acting Public Prosecutor v Andew Lalaiva & Angel Ume SC201

Logalio Piavo & Ano v Kumbamung [1986] PNGLR 283

Jacob Wama Kelekawi v State (2003) N2356

Re Thomas Marcus N1931

Re The Bail Act; Application by John Wilford Gibson (1990) N903

Ex parte Arthur Smedley [1978] PNGLR 156

Giordani (1982) 6 A. Crim. R. 397

R. v Lancastle (1978) Crim. L. R. 367

R v. Cullis; R. v Nash 1969 1 All ER 593

Counsel:

MsTamalis Akus for the Applicants

Ms J Nidue for the Public Prosecutor

______________________________________________

RULING ON BAIL APPLICATION

This matter first came before me on 14th September 2004 on the hearing of a motion pursuant to Order 17 of the National Court Rules for an order for Habeas Corpus of the body of Sam Tom. The proceedings were commenced by Originating Summons seeking Habeas Corpus, bail for both applicants and declarations in relation to alleged breaches of human rights, and damages.

On reading two of the six affidavits filed the Applicant Sam Tom alleged he had been badly beaten by warders on or about 14th June 2004 arising from a false allegation that he had insulted a warder, and his left shoulder dislocated. He had received no medical treatment. I ordered that the Applicant be brought before me that day. On his production I had Sam Tom brought into the witness box where he demonstrated 1 – 2 cm well healed scars on the right and left shoulders, a slight drooping of the left shoulder and a claim that his left arm was immobilised. Otherwise he appeared to me well muscled and well nourished. I ordered that he be taken to the Alotau General Hospital and that a medical report be prepared for the assistance of the Court. The matter was adjourned until that could be done. I made no other order at that time as the principle purpose of habeas corpus is to enquire into whether the custody in which the person is held is lawful. As Mr. Narokobi conceded, there could be no issue that such custody, being pursuant to a warrant issued by this Court, was anything but lawful.

The matter next came before me on 23rd September 2004 for hearing of the bail application when the applicants, aged 29 and 25 years respectively, relied upon all of the affidavits filed. There were no affidavits filed by the Respondents.

I summarise the evidence as follows. On 14th or 15 the June 2004 at GiliGili CIS after the inmates had been put in their cells an inmate called out to the Chief Sergeant using a ‘nick name’ no doubt calculated to irritate the warder. Warders then accused the Applicant Sam Tom of making the remark and called him a trouble maker. He denied having made the remark and was supported by other inmates. Another inmate confessed to making the remark. However one of the warders pressed the alarm bell and other warders then came and fired tear gas into the cells. After some time with all the inmates in the tear gas filled cells the warders let the inmates out, belting them with a mattock handle, an iron bar and other implements As they came out of the cells and after they had come out. The Applicant Sam Tom was singled out and struck with these implements by a number of warders. He names Private “N” as his accuser and Corporal “L” as the person responsible for hitting him with an iron. I have not included the full names of the officers in my reasons as they have not been personally joined or served with these proceedings and thus cannot defend themselves against the allegations. Sam Tom says of Corporal “L”:

“He dislocated my left shoulder and tore both my biceps. They so severely bashed the other inmates. That evening 15 of us were severely wounded and needed medical attention.”

A medical officer at Alotau General Hospital examined the Applicant Sam Tom pursuant to my order and reported :

“Left shoulder – dropped with restricted function of the joint. Xray film number W2689 was insignificant and no old fractures.

Conclusion

Left shoulder injury healed due to time elapse of 3 months. Has developed stiff joint now from disuse of the joint. He was advised on physiotherapy and analgesics (pain killers).”

The Applicants fear that they will be subject to further abuse now that they have made public complaint and because of their “outspoken attitude”.

Detainee Assessment Reports put into evidence reports in respect of both Applicants:

“…has a satisfactory behaviour and attitude, however he sometimes challenges instructions and tries to lead other detainees against the administration. Otherwise he is co-operative most of the times.”

There was ‘fresh’ evidence of matters which should have been adduced at trial, namely the affidavit of Philip Makiawai averring to a dying declaration by the murdered person attributing the shooting to another person and the affidavit of Mathew James annexing a newspaper report of the Police attributing the murder of which the applicants were convicted, to another person the Police had shot dead.

The Applicants can afford to post a bail bond of K1000 but not more. The CIS have no money to transfer the Applicants to Port Moresby for the hearing of their appeal.

The Law

It has long been settled that to obtain bail pending an appeal to the Supreme Court the applicant must show exceptional circumstances: The State v Yabara (No.1)

[1984] PNGLR 133 per Kapi DCJ Kaputin and Woods JJ

1where the Supreme Court approved Rolf Schubert v State

[1978] PNGLR 394

2, Arthur Smedley v State

[1978] PNGLR 452

3 and John Jaminen v State (No.1)

[1983] PNGLR 122

4.

Very good prospects of success of the appeal can amount to exceptional circumstances: Walter Enuma v State

SC538 per Kapi DCJ

5. Very good prospects usually means “…the outcome of the appeal is a forgone conclusion and readily apparent.”: John Jaminen v State (supra).

Prima facie arguable grounds of appeal does not constitute exceptional circumstances: Arthur Smedley v State

[1978] PNGLR 452 per Wilson J

6.

It has to be kept in mind that in an application for bail pending an appeal the accused was convicted by a properly constituted court and his guilt established “…in what must be taken, until the contrary is shown to be a trial properly conducted without error of law”

Arthur Gilbert Smedley v State [1978] PNGLR 452

7. The presumption of innocence no longer applies, nor do the provisions of Section 9 of the Bail Act and Section 42(6) of the Constitution. Although, even before conviction on a charge of willful murder s.42(6) of the Constitution does not give accused a right to bail and s.9(1)(c) of the Bail Act shifts the onus to the accused to show that his continued imprisonment is not justified: Re Keating.

[1983] PNGLR 133

8

After conviction the Court must be very vigilant and cautious in its...