A short sentence can be served before an appeal is heard. The Act recognises that and provides a route out of custody once the appeal is properly on foot, but the courts have kept the door narrow.
The District Courts Act route
Where an appellant is in custody and is not detained for any other cause, a Magistrate, on the certificate of the Clerk of the Court by which the decision was made that a copy of the notice of appeal has been served on him and that the appellant has entered into a recognizance or deposited a sum of money in accordance with Section 222, may, by written order, release the appellant from custody.
Two conditions and a discretion. The notice must have been served on the Clerk, that is lodged under section 220(2), and the recognizance or deposit must be in place. The magistrate then may release. The Magistrates’ Manual treats this as a bail decision on which the onus and considerations for bail after conviction apply. The recognizance on appeal already binds the appellant to prosecute the appeal and abide the National Court’s order, which is why the Act treats it as sufficient security for release.
The Bail Act route
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 (s 11). A court hearing an appeal that adjourns may grant bail to the appellant (s 12).
So the application can be made to the District Court, to another District Court, or to the National Court. Section 9 of the Bail Act does not apply after conviction; the Manual explains that sections 10 and 11 give only a discretion and no listed factors.
The exceptional circumstances test
Before conviction a person is entitled to bail unless the interests of justice otherwise require. After conviction the presumption of innocence is spent. The Manual states that a convicted applicant must demonstrate exceptional circumstances, and collects the cases: in Smedley v The State [1978] PNGLR 452 the desire to instruct counsel, help a spouse’s business, act as executor or pursue a venture was not exceptional; in Jaminan v The State [1983] PNGLR 122 parliamentary duties were not; in Yaki v The State (SCA 74 of 1990) neither political duties nor the need to instruct counsel was. The Manual suggests that a very strong prospect of success on appeal could be exceptional. A short sentence that would be wholly served before the appeal could be heard is the other recognised ground, and it is the commonest in District Court matters.
How to apply
| Step | Note |
|---|---|
| Lodge the notice of appeal with the Clerk and give the recognizance or deposit | Sections 220 and 222; both within one month |
| Obtain the Clerk’s certificate | Section 223 |
| Apply to a magistrate for a written order of release, or to a court under Bail Act s 11 for bail | Address the exceptional circumstances: length of sentence, prospects, personal matters |
| Conditions | The recognizance on appeal already binds the appellant; further conditions under Bail Act s 18 are possible |
| If refused | Apply to the National Court under Bail Act s 11(c) and s 13 |
Appellants who might leave
Section 237 provides the counterweight. If it is made to appear on oath to a magistrate that a person who has instituted an appeal is about to leave the country, the magistrate may issue a warrant for his arrest and commit him to prison until the appeal is determined, unless he enters into a recognizance with sufficient sureties to appear and abide the National Court’s judgment. Section 23 of the Bail Act separately requires anyone on bail who wishes to leave the country to obtain the National Court’s permission.
Civil orders and fines
Release under section 223 concerns custody. A civil appellant wants the opposite protection, a stay of enforcement, which the District Courts Act does not provide; section 227 lets the District Court enforce once 40 days pass without entry of the appeal. A stay is sought from the National Court by motion under Order 18 rule 12(2) of the National Court Rules, and the principles are those discussed in can a judgment be stayed pending appeal. A fine can likewise be enforced by warrant of commitment unless stayed, so a fined appellant who cannot pay should seek a stay as well as lodging the appeal.
If the appeal fails
Section 11 of the Act allows a magistrate, once the appeal is decided against the appellant, to issue a warrant of commitment for the sentence as if no appeal had been brought, and section 236 gives the same authority for a decision affirmed or varied by the National Court. Time spent on release does not count as time served. A successful appellant is discharged, and any deposit is repaid under section 235(3).
The District Courts Act is not on PacLII; it is available on vLex. The three bail cases are cited from the Magistrates’ Manual.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.