N342(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BETWEEN

KUNJIP DAI
APPELLANT

AND

JOE MANDA (NO. 1)
RESPONDENT

Mount Hagen: Quinlivan AJ
13 April 1981

APPEALS - PRINCIPLES APPLYING TO APPEALS. - GROUNDS OF APPEAL - absolute need for them to SPECIFY WHAT IS IN ISSUE. - RIGHT OF MAGISTRATES TO BE TREATED "FAIRLY". - PROFESSIONAL ETHICS.

PRINCIPLES APPLYING TO APPEALS - presumption of "OMNIA PRAESUM PRAESUMUNTUR ... RITE ESSE ACTA" ... and its effects.

LEAVE TO APPEAL "OUT OF TIME" - effect and limitations on.

INTERIM ORDER

QUINLIVAN AJ: On 17th October, 1980, the District Court at Mount Hagen entered judgment for K800.00 in favour of the present Respondent in a claim for work and labour in building a trade-store some 30 foot in length and eighteen foot wide.

On 1st January, 1981 an appeal was purported to be lodged despite the fact that that day was a Public Holiday and despite the fact that the 30 day limit imposed by section 227(2) of the District Courts Act had long since expired. The second point is of some importance as we shall see later.

On 2nd January, 1981 the Magistrate who dealt with the case arranged for the original documents to be forwarded to the Registrar of the National Court in the Capital - this was in accordance with section 230 of the District Courts Act - and he also filed a report with the Registrar which, shortly stated, certified that the judgment allegedly appealed against had been entered because it was "agreed by both parties".

On 14th January, 1981 an application was made for leave to appeal "out of time", and this application was granted. The application was made on the basis, apparently (as is, necessarily, the custom when such applications are made on circuit) that the documents which supported it would be later filed. The fact that those documents are not in the file which the Registrar gave to my Associate - and the fact that there is no entry on the docket that they have ever been filed - leads me to the necessity of a choice between two possibilities. Either they were never filed or, if filed, they are in a different packet which is not available at the moment and will have to be sought after by Counsel. Speaking volubly against the possibility that they have been filed is the fact that the only Notice of Appeal which appears to exist is the one about which I wish to speak. The one dated 1st January. If, however, there is a missing file somewhere then, quite clearly, part of what I have to say will be nothing but a cautionary tale. But the caution which it contains is one which must constantly be borne in mind.

Leave to appeal "out of time" was, as I have said, granted on 14th January 1981 and some misunderstanding appears to have immediately arisen. The missing documents are dated 12th and 18th December, 1980 and it must have been assumed that the order granting leave to appeal was an order authorising or validating the alleged "notice of appeal" dated 1st January, 1981 which produced the Magistrate’s all-important Report. That, in any event, is the way it appears on the documents which are before me.

These documents show that, after a Magistrate has certified, in answer to a statutory duty, that a certain civil-action judgment was entered because it was

"agreed by both parties",

This Court is presented with a Notice of Appeal which says:

"there was no evidence before the Court from which the Court could have entered judgment for the complainant".

Such a situation cannot exist. There are two very basic reasons for this. The first is that the grant of leave to appeal "out of time" does not validate a defective "notice of appeal". Such a document is a nullity and, for this reason, totally to be ignored - except, in the peculiar circumstances of this case, in regard to the effects which it had in producing a Magistrate’s Report. The grant of leave neither compels the Appellant to go ahead with his proposed appeal nor does it dispense (unless there is a specific order to the contrary) with the conditions precedent for the entry of the proposed appeal in the "lists" of this Court. All that it does is it lifts, by virtue of a statutory authority, a statutory ban which had previously existed and it enables the drafting, and the serving and filing, of a proper Notice of Appeal.

This, apart from the true meaning of the word "proper" in the phrase "proper Notice of Appeal", is a rule of a technical nature and if the Notice of Appeal was not objectionable I would not have the slightest hesitation in telling Counsel to cross out the date which the document at present bears and inserting today’s date (assuming that the grant of leave still applies).

The real reason why this Notice of Appeal cannot exist is, simply, that it proclaims, without condescending to particulars which the Magistrate can answer, that the Magistrate is a liar and that is not permissible.

If a Magistrate has, in fact, issued a false certificate the sooner that this fact is made clear the better for the good name of the administration of justice. Let there be no mistake about that. As I mentioned at page 8 of Appeal of Michael Dai Kaupa.

"‘the law’ admits that it sometimes misfires of malfunctions"

and there is a constant need for supervision to be made at all levels to see that there is no abuse of any kind. But even if the Magistrate has, in fact, done an unpardonable thing

"it is just not good enough for the appellant to claim, in a loud and imperious voice, that he did not receive justice. He must produce evidence to support his claim. And it is not proper for any appeal court to assume that he did not get justice."

(as I said at page 7 of that report). The fact is that Magistrates, also, are entitled to be treated "fairly" (as section 59 (2) of the Constitution puts it. They, also, are entitled to be able to defend themselves against allegations which, if believed, could destroy them. More than that, however, there is the positive rule of law which is absolutely binding in all appeal cases. It is most unfortunate that I have to rely on a judgment which I myself delivered in this regard but I presume that the matter is so obvious that nobody has bothered to write about it before. What I said in Appeal of Michael Dai Kaupa was specifically said in regard to appeals in criminal cases but it applies even more so in civil cases where the Court is actually a "social engineering facility" provided by Society. What I said was this:

"the tribunal before which (a person is) taken (shall) whether those who charged him like it or not, ... presume (that is, they shall act, at all times, on the basis that) the person charged is:

"INNOCENT UNTIL PROVED GUILTY ACCORDING TO LAW"

There are other sections of the Constitution which strengthen this but what I have said is a sufficient introduction. And note that, once again, we have those very important words "according to law". ...

That is the situation up until the time that the person charged is declared (or "found") by the impartial and independent court, to be GUILTY ACCORDING TO LAW. Once that happens the situation, very naturally, changes.

Once sections 37(2), 37(3), 37(4), 42(2) and so on have been honourably carried out and abided by, the person charged ceases to be a defendant. ... Thus the fact is that, although section 37(15) of the Constitution says:

"Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law",

this does not mean that he can automatically appeal. Once again we have those all-important words, this time: "reviewed ... according to law" and, as I have said, a lot of learning is covered by them. In fact, the presumption not only changes, it becomes reversed and what is called "THE OMNIA PRAESUMUNTUR RULE" takes over.

...

Proof to the contrary MUST be given if the appellant is to get anywhere.

It is just not good enough for the appellant to claim, in a loud and imperious voice, that he did not receive justice. He must produce evidence to support his claim. And it is not proper for any appeal court to assume that he did not get justice. The operative words (in the OMNIA PRAESUMUNTUR RULE definition) are: - "PRESUMED ... until it is PROVED to the contrary" and there must be something, beyond the mere claim that the court appealed from was wrong, on which the appeal court can act."

These statements that "proof to the contrary MUST be given" if the presumption that the Magistrate was right is to be upset, and that Appellant "must produce evidence to support his claim" refer, of course, to the onus as it exists at the time the appeal is heard. But the need to show a valid ground of appeal (which varies in degree depending on the circumstances of the case) exists from the very beginning of the appeal process. And the professional ethics of all lawyers are particularly strong in this regard. In a case such as this where, due to the serving of an invalid "notice of appeal" on the Magistrate, a certificate has been filed that the matter was settled out-of-court and judgment was then entered in accordance with the terms of the settlement, the existence of that certificate cannot be ignored. The appellant must, in his Notice of Appeal, make a specific and unequivocal allegation that that certificate is false (if that is his case) so that the magistrate can know just what it is that he has to answer, and so that the appeal court can know just what it is that it is dealing with. And so that action can be taken to punish the guilty after the appeal has been disposed of.

(His Honour then went on to mention that, in accordance with what appears to be a practice which has grown up in Mount Hagen - but of which he was not aware - there was no CALL OVER of cases outside the Courtroom at the beginning of the Sittings so it is not possible for anyone to certify as to whether the Respondent appeared or not. The form of "notice" served on him was, also, defective. These matters were of special importance at the time because of what a prisoner had said (and a Prison Warder had verified the previous day but, since remedial action has been taken their importance has disappeared so they are not included. His Honour then concluded:)

My "interim order", therefore, is that this appeal be stood over to another circuit, subject to the following conditions:

(a) 	a new Notice of Appeal, drawn in such a way as to inform the Court appealed from, and this Court, of the issues involved, is to be served and filed and the order for extension of time is further extended to permit of this;

(b) 	the Magistrate is to be informed of the fact that he has NOT, by his Report of 2nd January, 1981, expended his right to make a Report and that, instead, he is expected to present his side of the story in further and better particulars, if he wishes to do so, on receipt of the new Notice of Appeal - and in this regard my comments in page 6 of Appeal of Tomi Orabi should be borne in mind.

(c) 	the appeal is not to be entered for hearing until the Magistrate has had (a) and (b) brought to his attention and until sufficient time has been given for him to reply;

(d) 	the appeal is not to be heard until the Respondent has been served with a notice of the commencing date of the Sittings at which the appeal will actually be heard.

Solicitors for the Appellant: A. Armet Esq. The Public Solicitor.
Counsel: P. Kopunye Esq.
Neither the Magistrate nor the Respondent was represented.