DAMARU & GITUA TO APPEAL SUPREME COURT'S DECISION GRANTING GEOFFREY VAKI BAIL

04/07/2015

by BRYAN KRAMER

National Fraud & Anti-corruption Director Mathew Damaru & his Deputy Timothy Gitua have given instructions to their lawyer McRonald Nale of Jema Lawyers to challenge the decision of Supreme Court granting Geoffrey Vaki bail.

The right to bail following conviction is a constitutional right, section 42(6) Right to Liberty of PNG Constitution. The provision is states that a person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or "conviction" unless the interests of justice otherwise require.
Bail Act of 1977 reaffirms this right. Section 11 of Act provides for bail after lodging an appeal. The provision is in the following terms

Where a person lodges an appeal against his conviction or sentence or both–
(a) the court which convicted him; or
(b) a court of equal jurisdiction; or
(c) a court of higher jurisdiction,
may, in its discretion, on application by or on behalf of the appellant, grant bail pending the hearing of the appeal.

Further Section 5(1)(e) of the Supreme Court Act also provides an order admitting an appellant to bail may be made by a judge.

So in this case the National Court convicted and sentenced Geoffrey Vaki of the criminal offence of contempt of court. Vaki filed an appeal before the Supreme Court (higher jurisdiction or powers). Invoking Section 42(6) of Constitution, Section 11 of Bail Act, Section 5(1)(e) of Supreme Court Act and lastly Section 155(4) of the Constitution to do justice in the circumstances.

Following the decision of Justice Higgins to grant convicted criminal Geoffrey Vaki bail confirms the important issue that the Court needs to settle the variances or conflicting rulings to whether bail should be granting to convicted criminals until their appeal is determined by the Supreme Court.
Courts in PNG, England and Australia have upheld and maintained the principle that bail should not be readily granted to those who have been convicted of a criminal offence, appealed their conviction and awaiting the ruling of their appeal.

The general rule in PNG, England and Australia has been that the Court should not grant bail to a convicted prisoner who has filed an appeal and is awaiting the hearing of their appeal unless "exceptional circumstances were shown."

In PNG Supreme Court has yet to settle what constitutes (is) exceptional circumstances. In this case Vaki's lawyers argued that when considering all their arguments together Vaki has established exceptional circumstances to be granted bail.

Damaru and Gitua acting on the advice of their lawyer McRonald Nale will now appeal the Supreme Court's decision granting Vaki bail arguing that the grounds (reasons) he was granted bail did not constitute exceptional circumstances. Further asking the Supreme Court to finally confirm the guidelines that qualify as exceptional circumstances.

The cause is important not so much to secure Vaki's imprisonment but in the cause to close off the loop holes for those who will follow Vaki's conviction.

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