Dacany v Taia of National Fisheries Authority [2002] PGNC 43; N2316 (13 December 2002)

N2316

PAPUA NEW GUINEA

[IN THE NATIONAL COURT JUSTICE]

CIA NO. 51 OF 2002

BETWEEN:

SAMSON DACANY

Appellant

AND:

NOAH TAIA of NATIONAL FISHERIES AUTHORITY

Respondent

WAIGANI: KANDAKASI, J.
2002: 16th October
20th November
13th December

APPEALS – PRACTICE & PROCEDURE – Appeal from District Court – Application to amend notice of appeal - Power to allow amendments governed by relevant provisions of the District Court Act – Amendments can only be allowed to statement of grounds of appeal – No new ground of appeal can be added under disguise of amendment if application is made outside the time limits for appeals unless the applicant is able to show that he would have been granted an extension of time to raise the new grounds of appeal - No case made out for case of possible extension of time to lodge appeal out of time – Whether s. 155 (3) (a) of the Constitution applies? – Section 155 (3) of the Constitution does not apply where there is particular relief or procedure prescribed in an act of Parliament applies – District Courts Act ss. 227, 221, 231, 232.

APPEALS – Application to substitute appellant – Appellant dying after having lodged an appeal – Party seeking to be substituted is a person aggrieved and affected by decision of the District Court – Applicant failed to lodge appeal within time or at all - Right of appeal not restricted to parties to proceedings before the District Court but to a person aggrieved by a decision of the District Court – Application for a substitution seen in effect as an application to appeal out of time – Depending on another to appeal and reverse decision of the District Court not good reason for failure to lodge an appeal within time – No good grounds advanced for failure to lodge own appeal - Application dismissed – District Courts Act ss.219 – National Court Rules O.5 r.10 (1), 11 (1) and (2) 12 (1)) and O.1 r.7.

Papua New Guinea Cases Cited:
William Moses vs. Otto Benal Megaten (Unreported judgement delivered 01/12/00) N2023. Rabaul Shipping Limited vs. Rita Rura (Unreported judgement delivered 08/12/00) N2022. The Senior Stipendiary Magistrate Ex parte vs. The Acting Public Prosecutor [1976] PNGLR 344.
Kiau Nekints vs. Moki Rumints [1990] PNGLR 123.
ABC Co. Transport Pty Ltd vs. Timothy Skaip (Unreported Judgement) N1577.
Aviat Social & Sporting Club (Lae) Inc vs. Anthony Meehan Ltd (Unreported judgement delivered 28/03/01) N2071.
Papua New Guinea Banking Corporation vs. Wilbar Tiepe Pokati (Unreported judgement delivered on 30/06/92) N1097.
Schubert vs. The State [1979] PNGLR 66.
Sunga Andrew vs. Helen John (Unreported judgement delivered 19/01/01) N2031.
Investment Promotion Authority vs. Niugini Scrap Corporation Pty Ltd (Unreported judgement delivered 03/08/01) N2104.
Provincial Government of North Solomons vs. Pacific Architecture Pty Ltd [1992] PNGLR 145.

Overseas Cases Cited:
R. vs. Walker [1915] st R Qd 115; [1915] QWN 18.
R vs. Everitt [1952] VicLawRp 43; [1952] VLR 521.
Hodgson vs. Lakeman [1943] 1 KB 15.
Regina vs. Rowe [1955] 1 QB 573.

Text and other Publications Cited:
D.R.C. Chamers, D.Weibrot, S. Injia, W.J. Andrew and D.Nicol, Criminal Law and Practice of Papua New Guinea 3rd Edn. Lawbook Company, Sydney 2001.
A. Kandakasi "The Power of Amendment in the District Courts Act Under Section 32 of the District Courts Act (Chp.40)", Melanesian Law Journal Vol. 16, 1988, p.115.

Counsel:
Messrs. B. Andrews & G. Sheppard for the Applicant/Appellant
Mrs. J. Agaru for the Respondent

13th December 2002

KANDAKASI, J: Two applications respectively filed on 6th September 2002 and 5th November 2002 are before me. The first is for or by the appellant while the second is by a third party Sepik Seafood Products Limited (SSPL). The first seeks to amend the notice of appeal to add in effect new grounds of appeal and the second is for the appointment of SSPL as the representative and substitute for the appellant who has since died.

The first application was by submissions filed by the parties at my direction issued on 16th October 2002, when the matter was adjourned to 4th November 2002, after having heard oral arguments of counsel. The second application was argued before me with written submissions on 20th November 2002. I then reserved judgement to consider the submissions. This is the judgement. I will deal first with the application to amend as it is first in time and then I will deal with the second application.

Arguments

It is argued for the applicants in relation to the application to amend that, an appellant is entitled to apply and this Court is obliged to allow amendments to notices of appeals. In so arguing they rely on s. 232 of the District Courts Act 1963 (DCA) and s.155 (3) (a) of the Constitution. Section 155 (3) (a) of the Constitution is relied upon to advance an argument that a person aggrieved by a decision is entitled to have the decision review even outside the time limits imposed by the DCA once a grave error leading to the decision is highlighted.

As for the application for appointment as representative and substitution of the appellant following his death, the argument is that the applicant is affected by the decision appealed against and it does have a financial interest in the outcome of the appeal. It chose not to appeal against the decision of the District Court because of the appeal by the appellant who has since died. Unless, its application is granted and it is allowed to proceed with the appeal as if it were its own, it will suffer prejudice, loss and damage and ultimately result in serious injustice.

The respondent to the appeal and the two applications is opposing both applications. It argues neither of the applications can succeed because the appeal is not properly on foot because it has failed to meet the requirements of the DCA in relation to the requirement for entering into recognizance on appeal. It further argues that application to amend introduces new grounds of appeal, which can not be included by amendment. It goes on to argue that the appellant is out of time in respect of those grounds, in the absence of any successful application to appeal on those grounds outside the time limits imposed by the relevant provisions of the DCA. Further it argues that, no case is made out for an exercise of the Courts power under s. 155 (3) of the Constitution. In any case, it argues that, that provision does not apply in a case where a specific procedure and or a remedy is provided for.

As for the application for appointment and substitution of the appellant by SSPL, the respondent argues that, the provisions of s. 219 are wide enough to enable a person affected or aggrieved by a decision of a District Court, to appeal to the National Court. Such a person need not be a party in the original proceedings. It was therefore open to the applicant to appeal but it did not, choosing instead to let the appellant now deceased to do that for it. In so doing, it accepted by necessary implication the risk associated thereto, such as failing to prosecute the appeal or the possibility of death before arguing and a decision on the appeal. In any case, it had the onus to provide good reasons for it to be now allowed to appeal against the decision of the District Court after the expiry of the time limit for appeals and having made a choice not to lodge its own appeal.

Issues

These arguments present a number of issues for determination. These are:

1. Whether the appellant has correctly lodged his appeal and the appeal is correctly on foot?
2. Whether the appellant is in the disguise seeking to amend is in fact seeking to add new grounds of appeal and if so whether he is entitled to do so?
3. Whether the Court has any power to appoint SSPL as the appellant’s representative and allow him to substitute the appellant on the basis that, it has an interest in the outcome of the appeal?
   

Background

The background leading to these issues is simple. On 25th January 2002, the Kimbe District Court convicted the appellant. That was in his capacity as master of a foreign fishing vessel namely, MV Tsunei Maru (the vessel) caught fishing in Papua New Guinea fisheries waters without a valid and applicable license contrary to s.58 (1) (h) of the Fisheries Management Act 1998. That appears to have proceeded on a guilty plea by the appellant. At page 2 of the reasons for judgement, the learned magistrate states:

"When the Defendant appeared in Court, he pleaded guilty to the charge saying ‘it is true he did not have a valid license,’ blaming previous operators of the vessel who did not bother about obtaining a license. He told the Court that when he took over, he did not find any license in the master room thinking everything was fine therefore he never checked with his superior or employer anymore and went ahead on business activities until later when Fisheries Officers confronted him at Kavieng and asked for such license."

The brief statement of facts in support of the charge read, between 1st September and 23rd November 2001, the appellant operated and mastered the vessel in Papua New Guinea without applicable license and was caught fishing without a license. The National Fisheries at Port Moresby traced the vessel and was informed that the vessel last ported at Wewak. The appellant left the vessel at Wewak and was instructed to go to Kavieng then to Kimbe where he was apprehended and charged by fisheries officer, Noah Taia. Upon interrogation the appellant in response to question 16 admitted that he did not have a license or any documents in the vessel’s master room. Because of this admission he was arrested, cautioned, told of his constitutional rights under s.42 (2) of the Constitution and was released on this own recognisance.

It seems the record of interview was admitted into evidence and formed part of the evidence upon which the District Court magistrate appears to have accepted the guilty plea and proceeded to convict the appellant.

After having found the appellant guilty as charged, the District Court ordered a fine of K100,000.00 to be paid by the appellant’s employer within one month and in default the vessel be seized until at such times, penalties, orders for costs and other charges determined and imposed under the FMA have been paid. He further ordered that, if the employer did not pay the K100,000.00 as ordered, then the vessel shall be put on sale by Fisheries Authority to recover the K100,000.00 fine and return any excess to the owner. On 13th March 2002, the appellant lodged his notice of appeal through Maladinas lawyers.

The grounds advanced in the notice of appeal essentially claimed the learned magistrate having erred in law and in fact by:

1. Finding that the appellant and the vessel were illegally fishing without a valid and applicable license;
2. Finding that the vessel MV Tsunei Maru was owned by Bismark Holdings Corporation of PO Box 1785, Boroko, National Capital District;
3. Finding that the vessels last port of call was Wewak;
4. Finding that the purported admission of the appellant that he did not have a license or any other document was an admission of guilt;
5. Not having an interpreter present for the purposes of translating the proceedings to the appellant and allowing him to give his defence in his mother tongue, Tagalog;
6. Fining the appellant and the local company with a penalty of K100,000.00;
7. Forfeiting the vessel to the Independent State of Papua New Guinea.
   

The proposed amendments to the notices of appeal if allowed will claim that the learned magistrate erred in fact and in law in:

1. Convicting the appellant when there was no evidence properly before him that the said vessel was fishing in Papua New Guinea waters, or that the appellant did not have a valid and applicable license.
2. Not determining the truth of the informant’s allegation that the appellant had made an admission in an interview that the vessel was unlicensed.
3. By not determining whether the appellant had sufficient knowledge of English to understand the allegations of fact put to him upon his arraignment and in consequence the learned magistrate erred in entering a plea of guilty.
4. Finding that Bismark Holdings Corporation owned the vessel, when there was no evidence before him of such ownership.
5. Imposing the maximum fine, when there was no evidence that the vessel was a foreign fishing vessel or other matters of aggravation before him to warrant imposition of the maximum penalty.
6. By converting the fine imposed upon the appellant to a fine upon his employer.
7. Imposing the penalty of forfeiture of the vessel in default of payment of the fine, when there was no power under the Fisheries Management Act to do so.
   

Subsequent to the lodgement of the appeal, but before the applications now before me were filed, the appellant Samson Dacany died on 19th April 2002, in ward 7 at the Port Moresby General Hospital. In view of that, the application for substitution is now being made.

I now proceed to deal with the issues presented, starting with the issue of, whether the appeal is correctly on foot. If that issue is determined against the appellant, that a consideration of the other issues may be academic only.

Whether the Appeal is Correctly on Foot?

The arguments giving rise to this issue goes to the conditions precedent to an appeal without which an appeal cannot stand. These conditions are spelt out in the DCA itself.

Numerous cases have made it clear that appeals out of the District Court are creatures of the DCA. Therefore, the requirements under the Act must be strictly met because a failure to do so renders an appeal null and void. Recent examples of appeals being dismissed for failure to comply with the requirements of the Act are my own judgements in William Moses vs. Otto Benal Megaten (Unreported judgement delivered 01/12/00) N2023 and Rabaul Shipping Limited vs. Rita Rura (Unreported judgement delivered 08/12/00) N2022. These judgements followed earlier judgements on point such as The Senior Stipendiary Magistrate Ex parte vs. The Acting Public Prosecutor [1976] PNGLR 344; Kiau Nekints vs. Moki Rumints [1990] PNGLR 123; and ABC Co. Transport Pty Ltd vs. Timothy Skaip (Unreported Judgement) N1577.

Section 220 of the DCA provides as to the documents that must be filed to institute an appeal. This includes a notice of appeal and a recognizance of appeal. The notice of appeal must be filed within one month from the date of the decision, the subject of an appeal. It must be lodged with the clerk of the District Court that made the decision. This was not done in the case of William Moses vs. Oto Benal Megaten (supra) and Rabaul Shipping Limited vs. Rita Rura (supra). I therefore dismissed the appeals on that basis.

In this case, the notice of appeal appears to have been lodged with the Assistant Registrar of the National Court here at Waigani. A letter dated 20th February 2002 that is on file confirms this and it reads in relevant parts as follows:

"We enclose entry of appeal to the National Court (2) pursuant to s. 226 of the District Court s Act together with copies of the notice of appeal.

The Clerk of Kimbe District Court, Mrs. Clotilde Bula informed the writer by telephone this morning that the notice of appeal and the recognisances on appeal can be filed and registered with he National Court registry at Waigani and she will accept sealed copies for the Court file in Kimbe.

If this process is agreeable to you, will you please enter a hearing date in the entries of appeal and we will be grateful if you could then give notice of the hearing of the appeal to the respondent and to the clerk of the Court, Kimbe District Court, pursuant to s.228 of the District Courts Act."

The seal affixed on the Notice of Appeal bears that of the National Court here at Waigani and not that of the Kimbe District Court at Kimbe. The DCA speaks clearly as to where a notice of an appeal against a decision of a District Court should be lodged. No power or discretion is given to either waive or substitute that with any National Court Registry. No power is vested in the clerk of a District Court to accept or direct notices of appeals to be filed with a person or a place other than him or herself as the clerk of the relevant District Court. What happened in this case is against the clear provisions of the DCA.

The other condition that the respondent claims was not met is the requirement for a recognizance on appeal. Section 222 provides that, within one month after the day when the decision is pronounced and a person aggrieved by it wishes to appeal, that person shall enter into a recognizance. This involves entering into a surety before a magistrate on such sums as the magistrate thinks fit as a condition to prosecute an appeal. The surety is also for the appellant to abide by any orders of the National Court on appeal and to pay costs as awarded by the National Court. If an appellant wishes, he or she has the option of entering into a recognizance by depositing with the clerk of the District Court by which the conviction, order or adjudication was made, such sums of money as a magistrate in writing directs.

In this case, the respondent argues that the recognizance has not been given in accordance with the requirements of the DCA. On the other hand, the applicant argues that the recognizance that has been given meets the requirements of the DCA and is in order.

There is no dispute as to where and how it was given. It is clear from the letter dated 20th February 2002, which has been already quoted in full, that recognizance on appeal was filed with National Court here at Waigani on 13th March 2002. It is not clear when the appellant appeared before a magistrate to enter into his recognizance. This is because there is no date inserted at the beginning of the recognizance (Form 72) though a signature appearing to be that of a magistrate has been placed in the magistrate’s space of the form with a District Court seal. It is clear however, from the affidavit of Mege Clara Anio, sworn on the 5th of November 2002, that she enter into communicating with a Mrs. Clotilde Bula, Clerk of the Kimbe District Court in relation to lodging this appeal more particularly a payment of K1,000.00 for the required recognizance. She says on the advise of Mrs. Bula the K1,000.00 was paid at the National Court Cash Office at Waigani and the receipt was faxed to the Kimbe District Court.

I am not able to find any case that directly dealt with a party failing to enter into proper recognizance on appeal. But that does not mean that the wording in s.222 of the DCA is not clear. Rather, it is in my view, very clear so as to render any arguments as to what its says unnecessary. The section makes it clear that, the recognizance on appeal must be entered into within one month after the day when the decision is pronounced with a surety before a magistrate. The surety can be in such sums as the magistrate thinks fit or the appellant may instead of making a deposit with the clerk of Court by which the conviction, order or adjudication was arrived at, pay such sums of money as a magistrate in writing may direct.

In this case, what appears to have happened is that, the appellant’s lawyers simply telephoned the clerk of the Kimbe District Court and asked her to agree to a security of K1,000.00 to be given and to be paid here at the National Court Registry. But it is not clear as to when and where appearance was made before a magistrate who has directed the K1,000.00 to be deposited with the National Court Registry at Waigani in writing as is required by the s.222 (1) of the District Courts Act. This places the recognizance that was file not being file in accordance with the requirements of the DCA.

As I said recently in the case of Aviat Social & Sporting Club (Lae) Inc vs. Anthony Meehan Ltd (Unreported judgement delivered 28/03/01) N2071, District Courts are creatures of statute. Their powers and functions are thus defined by their enabling legislation, the District Courts Act. This means that the provisions under that Act has to be followed for a valid exercise of powers. A failure to confirm with what is provided for in the Act, renders any decision arrived at or any step taken before or out of the District Court null and avoid and of no effect. This is the effect of all the cases on point most of which were already referred to in the earlier part of this judgement, such as The Senior Stipendiary Magistrate Ex parte vs. The Acting Public Prosecutor (supra); Kiau Nekints vs. Moki Rumints (supra); ABC Co. Transport Pty Ltd vs. Timothy Skaip (supra); William Moses vs. Oto Benal Magiten (supra) and Ann Sunga Andrew vs. Helen John (supra).

In this case I find that, both the notice of appeal and recognizance on appeal have not been filed and entered into in accordance with the requirements of ss. 220 and 222 of the DCA. It follows therefore that, the appeal is not properly on foot and that no application to amend or substitute the appellant will correct that defect. In view of this, I would uphold the application of the respondent to dismiss these proceedings for a failure to meeting the conditions precedent to the appellant’s right of appeal.

In view of above, it may not be necessary to consider the other issues. However, for completeness sake, and because most of the remaining issues raise issues not previously raised and considered in any judgement, as far as I am able to ascertain, I proceed to deal with them.

Amendment to Grounds of Appeal

Section 232 of the DCA deal with the question of amendment to notices of appeal. No judgement has yet considered the full meaning and effect of this provision. Counsel for the applicant has referred me to two cases in which s.232 was applied to allow amendments to notices of appeals. These are the cases of Papua New Guinea Banking Corporation vs. Wilbar Tiepe Pokati (Unreported judgement delivered on 30/06/92) N1097, per Newell A.J. and another, a decision of Sheehan J. in APP. No. 234 of 1991.

These cases are of no assistance. In the first case there was no contest on the application and so an application to amend the notice of appeal was granted. In the second case, no written judgement was delivered. So there is nothing there to assist me in considering the issue before me.

Counsel for the applicant as also drawn my attention to the Supreme Court judgement in Schubert vs. The State [1979] PNGLR 66. In that case, Prentice C.J. and Andrew J. voiced disapproval of a growing practice of seeking to add new grounds to an appeal at the eleventh hour. They observed that, a departure from the grounds of appeal stated in the notice of appeal can only be allowed in exceptional cases and any such allowance is at the discretion of the Court. They also observed that, amendments could only be allowed to existing grounds of an appeal to the exclusion of additional or new grounds in the disguise of an amendment. They said any attempt at adding a new ground of appeal in the disguise of an amendment, should be struck down by s.27 of the Supreme Court of 1975.

The applicant’s Counsel submits and I accept that, that is the only case on point and the observations of Prentice C.J and Andrew J. were only obiter dictum. However I do not accept the suggestion therein that, I should not follow what their Honours had said. These observations appear to be the only observations so far on the issue at hand. In the absence of any authoritative view to the contrary, I will allow myself to be guided by these observations.

In support of the argument of the applicant a number of overseas cases are referred to. Those cases support the proposition that amendments can be allowed at any time even if they add new grounds to a notice of appeal because the respective rules in those jurisdiction allow for applications to be made to add new grounds of notice of appeal even out of time. The cases referred to are that of R. vs. Walker [1915] st R Qd 115; [1915] QWN 18 and R vs. Everitt [1952] VicLawRp 43; [1952] VLR 521. Counsel also referred to D.R.C. Chamers, D.Weibrot, S. Injia, W.J. Andrew and D.Nicol, Criminal Law and Practice of Papua New Guinea, 3rd Edn. Lawbook Company, Sydney, 2001.

The reference to last source is only to point out that the commentary by the authors on the District Courts Act ends at s.231. It is then argued that, it is reasonable to conclude that, there is a lot of authority on the application of s.232. Proceeding then on to s. 232, it is argued for the applicant that this provision not only talks about the defects in the grounds of appeal but also makes an absolute statement. The statement is that an appeal should not be defeated by reason of a defect, whether in substance or in form, in the grounds of the appeal. Further counsel submits that where an arguable ground of appeal exists questioning the safety of a conviction but is not contained in the grounds of appeal, that is a defect in the substance of the grounds of appeal. In such a case, it is mandatory that the appeal should not be defeated. Consequently, it is submitted that, if the Court is alerted to such a defect, then s.232 will allow amendment by the addition of the ground.

Furthermore, it is submitted that the above interpretation accords well with s.158 (2) of the Constitution. That section obliges the Courts to give paramount consideration to dispensation of justice when interpreting the law. The submission for the applicant then turns on the amendments sought and is admitted that only ground two of the amendment sought would be introducing a new ground the others are only cosmetic or elaboration of what has already been state in the notice of appeal. This is necessitated by the unavailability of the depositions at the time of preparing and lodging the original notice of appeal. The depositions have now become available and that has necessitated the amendments sought. Then finally, going by the authorities and the way in which they say the provisions of s.232 should be interpreted, they submit that, leave should be granted for them to amend the notice of appeal in terms of a draft attached to the relevant motion.

The respondent argues that the proposed grounds of appeal raise new grounds of appeal and as such they cannot be amendments within the meaning of s.232. It relies on a passage from my judgement in Sunga Andrew vs. Helen John (Unreported judgement delivered 19/01/01) N2031, at p.7. There I said in respect of an attempt at adding a new ground to an appeal without a formal application for amendment that, it is was not possible because, the appeal period had long expired and that no leave was sought to add those grounds. I also said, even if such an application was made, I was not too sure whether it would have been a legitimate one and one that could have been granted. I did not consider in any detail, the provisions of s.232 of the DCA in that case.

That provision states;

"232. Amendment of Notice of Appeal

1. Subject to subsection (2), an appeal shall not be defeated merely by reason of a defect, whether of substance or form, in a notice or statement of the grounds of appeal, but if on the hearing the National Court is of opinion that an objection raised to the notice or statement is valid the National Court may cause the notice of statement to be amended.
2. If a notice or statement of grounds of appeal appears to have –
   • (a) being misleading or
   • (b) occasioned expenses; or
   • (c) prejudiced to the respondent;

an amendment shall be allowed only on such terms as to costs or postponement, or both, as the National Court thinks just."

What this section is saying in my view is this:

1. An appeal cannot be defeated merely because of a defect either in substance or in form in the notice or statement of the grounds of appeal;
2. A respondent may raise an objection at the hearing of the appeal by the National Court to the notice or the statement of the grounds of appeal if there is a defect in them;
3. If the National Court is of the opinion that the objection raised is valid then it may cause the notice or statement to be amended;
4. If the notice or statement of grounds of appeal appear to have misled, occasioned expenses or prejudice to the respondent, then an amendment can only be allowed on such terms as to costs, adjournment or both as the Court thinks just.
   

In an article I had published in the Melanesian Law Journal Vol. 16, 1988 p.115-143, headed "The Power of Amendment in the District Courts Act Under Section 32 of the District Courts Act (Chp.40)" (my paper"), I discussed s. 32 of the DCA, which wording is similar to s. 232. I consider what I said there would be of assistance on the proper interpretation to be given to s. 232.

Section 32 reads:

"No objection shall be taken or allowed to an information, or to a summons or warrant to apprehend a defendant issued on an information, for an alleged defect in the information in substance or in form or for variance between it and the evidence in support of the information, and any such variance maybe amended at the hearing."

In that paper I noted that, s.32 had its origin was back to the Justice Act of Queensland 1886. The relevant section there was s.48, which provided as follows:

"If at the hearing of any complaint any objection is taken for an alleged defect therein in substance or in form or any alleged defect in any summons or warrant to apprehend a defendant issued upon such complaint or if objection is taken for any variance between the complaint, summons or warrant and the evidence adduce at the hearing in support thereof the justices shall make such order for the amendment of the complaint, summons or warrant as appears to them to be desirable or to be necessary in the interest of justice."

At page 120 I stated that, the power vested in the Court was a discretionary one and ought to be exercised carefully in the interest of doing justice. Then at pages 126-132 I explored and specified the circumstances in which the power of amendment could be exercised or could not be exercised on account of a defect. I then concluded at page 132 in these terms:

‘The list of situations discussed above are not as exhaustive as regards what constitutes a defect within the meaning of s.32 of the Act. The list could, however, assist in determining what constitutes a defect within the scope of s.32. A defect in that connection would include: first, an information which fails to comply with the rules and requirements of laying a proper information; second an information which fails to disclose all the necessary elements of the offence it purports to allege as well as any other particulars required for that information; and finally any discrepancy in the information. Some of these defects may be amended and others may not, depending on the nature of the particular defect and most importantly to achieve justice. In other words the question of whether or not a defective information may be amended depends upon the particular circumstances of each case, in the interest of justice which is dependent on the degree of the defect.

The extremes are clear: on the one extreme an essential element of an offence missing cannot be cured by s.32. On the other extreme a slip of a pen or a silly mistake by the person drafting the information in not including a word or a letter can be cured by s.32. The problem area is however, in cases falling in between. This could be decided according to the degree of the defect."

In the absence of any authority to the contrary, I am of the view that, what I said in respect of s. 32 applies with necessary modification to s. 232. I add however that, a defect as noted above can only exist in respect of what is stated and not one that has been omitted. The same applies in the case of any variance.

I think the words "an appeal shall not be defeated merely because of a defect whether of substance or of form in the notice or statement of the grounds of appeal" are important. Having a closer look at these words clearly show that s.232 is intended to cover any defects in the form of the notice of appeal or the way in which the grounds of appeal have been stated. If on the objection of the respondent to an appeal a Court is satisfied, there are defects in the way in which the grounds of appeal have been stated, the Court may cause the notice or statement as the case may be to be amended to overcome the defect. Any such defect cannot defeat an appeal.

There is however no provision either implicitly or expressly in s.232 or elsewhere in the District Courts Act granting a right in an appellant to amend his notice or grounds of appeal. It does not even talk about an application for amendment. But as I suggested in the context of s.32 in my paper at page 137, if there is power in the Court to correct any defects or variance by amendment then that opens the way for applications to be made for an exercise of that power. Any such application should however, be made at the earliest possible opportunity to avoid any prejudice in the interest of doing justice.

This, in my view, equally applies in the context of s.232 of the District Courts Act, again in the interest of doing justice to the parties and to minimize costs and prejudice to the parties. However, this has to be restricted to what is provided for in s.232. That is because, an appeal to the National Court from the District Court stems from the DCA. The case authorities clearly show that, all matters going before and out of the District Court by way of appeals has to be strictly done in accordance with the requirements of the Act. Anything outside that is null and void.

As far as I can see, s.232 is specific in that it provides for amendments to be effected to "a notice or statement of the grounds of appeal." This phrase in my view signifies that amendments can only be made to a notice or statement of the grounds of appeal in a notice of appeal. This restricts the application of the section to the stated grounds of appeal and nothing more. I cannot see how in the disguise of interpreting this provision one can build into it a power to allow a party to add a new ground of appeal. I do not consider it conceivable that Parliament could have intended that a party could add new grounds to his appeal after the expiry of the time limits for appeal and without using s. 231 for an extension of time. This is particularly so when Parliament provided for the time limit twice in ss.220 and 221 and vested a discretion in the National Court to extent that time under s. 231. Further if Parliament intended that the powers under s.232 of the District Courts Act should be extended to include omissions it could have also used the word "omission" or "exclusion" in that section but Parliament chose to use the word "defect" only.

I accept that the Courts have a duty and obligation to give a fair, large and liberal meaning to words used in a legislation so as to give effect to the intent and purpose behind it. I do not however, accept that the Courts do have the power to in effect rewrite a legislative provision to include or exclude matters not originally intended in the disguise of interpreting. See: Investment Promotion Authority vs. Niugini Scrap Corporation Pty Ltd (Unreported judgement delivered 03/08/01) N2104 at p.11.

It follows therefore that, if a party is desirous of adding a new ground of appeal then application must be made under s.231 for an extension of time to exercise his right of appeal in respect of the new ground of appeal. If such an extension is granted, only then can a new or fresh ground of appeal be added.

In the present case, the appellant admits seeking to include one new ground of appeal, ground 2 of the proposed amended notice of appeal. He is already outside the appeal period. If his application was granted, he will in fact be allowed to lodge an appeal outside the time period stipulated under ss. 220 and 221 in respect of the new ground of appeal. Unless he is able to make out a case under s. 231 of the DCA, he can not simply add a new ground to his notice of appeal after the time period for him to appeal has expired. Besides, no satisfactory explanation is provided as to why s. 231 can not be used. Also no convincing explanation is advanced as to why this ground was not included in the notice of appeal. The only ground or reason advanced for his failure to add the new ground to his original notice of appeal is that, he did not have the relevant depositions at the time of preparing and filing his original notice of appeal. The only relevant part of the deposition is the statement of facts and record of interview. The appellant says these documents were not before the appellant’s lawyers at the time of preparing and lodging the original notice of appeal.

I do not accept the reasons advanced as reasonable and satisfactory. These documents were available at the trial in which the appellant participated and they were part of the District Court’s records. There is no suggestion that none of the copies of these documents were furnished or provided to the appellant ether before or at the time of the trial. It was incumbent upon the appellant to instruct his lawyers with copies of those documents and any other documents filed in Court when he instructed his lawyer to prepare and lodge his original notice of appeal. If the appellant was not able to do that, then it was incumbent upon the appellant’s lawyers to inquire of him as to what documents were tendered in Court and the prosecution relied on to secure his conviction.

Further, whether or not he got any detailed or proper instructions on material in question, the appellant’s counsel was under an obligation to ascertain from the clerk of Court what documents were admitted into evidence and ask for copies of those to be furnished to them before lodging the appeal. If there was going to be a delay in that, then it was incumbent on the appellant’s lawyers to apply to the Court for an extension of time to lodge an appeal out of time on the basis for a delay in obtaining such information or document. No such steps were taken. Instead, they proceeded to lodge an appeal on the grounds specified in the original notice of appeal. For all intents and purposes, the District Court and the respondent as well as the National Court were informed that those were the grounds the appellant was relying on to appeal against the decision of the District Court.

It is settled law that the negligence or a failure of a party or its lawyer is no good reason for a Court to relax the requirements of the law or the rules of the Court. Cases like that of Provincial Government of North Solomons vs. Pacific Architecture Pty Ltd [1992] PNGLR 145 clearly demonstrate that principle. The failures of Counsel in this case amounts in my view to negligence, subject of course to what his clients instructions were and his advice to his client.

In respect of the other amendments sought, I note that ground 1 simply amplifies and particularizes the existing ground 1. The proposed ground 3 amplifies existing ground 5 while proposed ground 4 particularizes the existing ground 2. The proposed ground 5 amplifies and particularizes existing ground 6 while proposed ground 7 amplifies and particularizes existing ground 7. I do not however, agree or accept the appellant’s argument that, proposed ground 6 amplifies and particularizes existing ground 7, which is already done by proposed ground 7. Existing ground 7 concerns the forfeiture of the vessel to the Independent State. Proposed ground 6 concerns converting the fine imposed on the defendant to a fine upon the defendant’s employer. These are two different things and not one and the same thing. There is no existing ground, which this ground seeks to amplify or particularize. Instead I find this proposed ground is a new ground of appeal that is sought to be included. I therefore rule this ground out.

In the end therefore, I grant leave to the applicant to amend his notice of appeal in terms of the draft notice of appeal attached to the application omitting paragraphs 2 and 6 in proposed amended notice of appeal.

This leaves on the issue of substitution of the appellant to be considered and determined.

Substitution of the Appellant

As noted, the SSPL is seeking to be appointed the representative of the appellant who is now deceased and for it to pursue this appeal as if it were the appellant. The respondent argues that SSPL is not the administrator of the appellant’s estate and as such they could not be allowed to substitute it for the appellant and pursue the appeal as if it was its own. The respondent also argues that SSPL was specifically covered in the orders appealed against. It existed at that time and was aware of the judgement. The conduct the subject of the proceedings before the District Court was that of an employee of SSPL. By reason of that, SSPL knew or ought to have known of the existence of the orders the subject of these proceedings. The effect of that argument is that s.219 of the DCA is wide enough to enable the applicant to immediately lodge an appeal against the decision if it was aggrieved by the conviction and the orders consequential on that but it did not. Now, it is well out of time and in the absence of any good explanation as to why it could not lodge an appeal on its own at the first place, it should not be allowed to substitute the appellant.

The application of SSPL is supported by an affidavit by Mege Clara Anio, sworn on 5th November 2002. She deposes to SSPL owning the vessel and that Sir Hugo Berghuser is the principle of SSPL. She also deposes to Sir Berghuser informing her that Samson Dacany, the appellant herein died and that is confirmed by a medical certificate of death issued by the Port Moresby General Hospital on 19th April 2002. Further she deposes to communicating with a Mrs Clotilde Bula, Clerk of the Kimbe District Court in relation to lodging this appeal more particularly a payment of K1,000.00 for the required recognisance. She says on the advise of Mrs. Bula the K1,000.00 was paid at the National Court Cash Office at Waigani and the receipt was faxed to the Kimbe District Court. She does not depose to when and how SSPL was appointed the representative for the appellant for the purpose of the administration of his estate or even to pursue this appeal on behalf of the appellant. It is argued however, for the applicant that because the decision of the District Court the subject of this appeal concerns a vessel which is owned by SSPL, SSOL should be appointed the representative of the appellant to enable it to prosecute the appeal as if it was SSPL’s.

There is no contest that usually, following the death of a defendant or an appellant in a criminal case, in so far as it concerns the deceased the cause of action dies with the death of the deceased. However, SSPL argues that a cause of action can be allowed to survive and to be pursued by the executors of the estate of a deceased where there exists a financial interest in the appeal.

The applicant has drawn my attention to the case of Hodgson vs. Lakeman [1943] 1 KB 15 and Regina vs. Rowe [1955] 1 QB 573, in support of its argument. In the latter case, the Court of Criminal Appeal, refused to entertain an appeal made on behalf of a deceased person because the applicant widow had no legal interest in the quashing of the conviction such as an interest to recover for the estate money paid as a fine. However, on appeal Lord Goddard CJ said:

"Supposing, as some happens, a man is convicted on indictment and fined 500 pounds; the money has to be paid, and the Crown can recover it against his estate, and, therefore, it would be an injustice if the executors were not allowed to appeal and to say that the conviction was wrong, because, if it was wrong, the money would be saved."

This case, Regina vs. Rowe (supra) was distinguished in R vs. Jefferies [1968] 3 All E.R. where the Court refused the notion of an inherent power to appoint a representative of a deceased, the appeal itself being a creature of statute and there being no statutory procedure whereby a person could be substituted for the appellant. The effect of the judgement in R. vs. Jefferies was changed or overtaken by s.44A of the Criminal Appeal Act 1968 in England. That section allows an approved person to continue an appeal initiated by an appellant who dies subsequently, including a person in a family or similar relationship who has a substantial financial interest in the determination of the appeal.

In Papua New Guinea, there is no provision in the DCA or anywhere else that as far as my research goes, that allows an appeal to be pursued by the executors of the personal estate of a deceased appellant. The applicant has not provided me with any assistance on this. Instead it submits that s.155 (3) (a) as well as s.155 (4) and s.158 (2) of the Constitution are wide enough to enable this Court to order a continuance of the appeal by it. This it says should be allowed to do because it is aggrieved by the District Court decision and has a financial interest in the determination of the appeal. In so arguing, it also refers to s.219 of the DCA 219, which enables any person aggrieved by a conviction or adjudicated of the District Court to appeal to the National Court. The submission here is that, this enables any person other than a convicted defendant to appeal against the decision of the District Court.

In this case, it is submitted that, the fine has not yet being paid and that the current owner of the vessel is the person affected by the orders. The vessel has not yet being put up for sale and as such it would be unjust if the applicant owner is denied the right to prosecute the appeal and test the validity of the orders affecting its interest.

The respondent refers to O.5 rr.10 (1), 11 (1) (2), 12 (1) (2) of the National Court Rules and submits that, these provisions apply in the absence of any authority to the contrary. It then argues that the appellant has died in April 2002 and no application has been made within 3 months of his death for substitution. Therefore, SSPL is now precluded from applying to substitute the appellant. Counsel was not able to assist me as to how those Rules could be applied to the present case. With respect counsel has overlooked the provisions of O.5 r.12 (1) (a) which speaks in terms of a cause of action surviving notwithstanding the death of a party.

In a criminal case, as Mr. Sheppard quite rightly points out, a cause of action does not survive and hence the need to apply to a Court to pursue a criminal case as against or for a deceased person’s estate as in this case. I am therefore of the view that, the provisions of the National Court Rules do not apply and cannot be of any use in a case where the cause of action does not survive following the death of a party. But where a cause of action does survive and there is no other provision to the contrary, I would contemplate the rules in question applying.

Having so ruled, I am now left to determine this application based on the principles relied upon by Mr. Sheppard.

The overseas case authorities cited by Mr. Sheppard concerns cases in which the personal representatives or the executors of the estate of the deceased persons in those cases applied for the criminal appeals to be pursued because of financial interests they had in the deceased estate. The changes brought about by s.44 A of the Criminal Appeal Act 1968 also speaks in terms of personal representatives or other person with family or a similar relationship with a deceased having a substantial or other interest in the determination of an appeal commenced by the deceased. It therefore seems to me that, the relationship between the deceased person and the person seeking to continue an appeal such as the present, is an important one. If the person applying to be substituted for the deceased person is the personal representative responsible for the administration of the deceased estate or has a family or similar relationship with the deceased person, then they could easily qualify to be substituted for the deceased appellant.

Counsel has not been able to provide me with any authority that allows for a person other than one falling into these categories being substituted for an appellant. Similarly, Counsel was not able to provide me with any authority that allows a person who could have appealed on his own right against the decision, the subject of the appeal, but did not do that, being allowed to substitute one who has.

In the case before me, the application is not by the personal representative or those responsible for the administration of deceased estate. Also, the application is not by a family relation or a person in similar relationship with the deceased person. The applicant is instead by the owner of the vessel. It is the applicant who appears not to have had the required license to conduct or engage in fishing activities, on account which the deceased was convicted. Therefore, the District Court ordered the penalty to be paid by the deceased’s employer and for the vessel to be forfeited if the penalty was not paid. If the applicant was seriously affected and had an interest in this matter as is being argued for here, then it was open to it to appeal in its own right in accordance with s.219 (1) of the DCA, but it chose not to do that.

There seem to be some suggestion in the argument for the applicant that SSPL is the subsequent owner of the vessel. But I do note that the transfer of ownership took place on or about 10th April 2001. That was well before the proceedings were issued and the conviction was recorded against the appellant.

I also note that, there is some argument being raised by the applicant in relation to the learned magistrate not making any findings as to who was the appellant’s employer. That runs contrary to a logical inference that could be drawn from the fact that no person could be the captain of a vessel unless the captain himself is the owner of the vessel or is employed to captain it by its owners. The evidence suggests that a company, which is confirmed by Ms. Aneio’s affidavit, owned the vessel. It follows therefore that, the owner of the vessel is the captain’s employers in the absence of any evidence to the contrary.

There is no argument that, at the relevant time, SSPL was the owner of the vessel and the employer of its then captain, the appellant who is now deceased. By reason of this, the applicant had every opportunity and reason to know of the decision of the District Court and the effects of it against it directly. It was incumbent upon it to immediately lodge an appeal if the decision did seriously affect and therefore aggrieved it and it had a good basis to argue against the decision. But it failed to do that. Now only after the death of the appellant and without proof of it being appointed personal representatives or the executor of the deceased’s estate it is applying to pursue the appeal in effect as if its own. It is doing that without complying with the requirements for appeals under the DCA.

I do not consider it was within the contemplation of the framers of the Constitution that s.155 (3) (a), s.155 (4) and s.158 (2) of the Constitution should be interpreted and applied in the way that is being argued for by SSPL in the circumstances of this case. These provisions can come to the aid of a person only if that person is without any remedy or where there is a remedy that has not been utilized and an exceptional case is shown for the exercise of this reserve power. See the Avia Aihi v. The State (No.1) line of cases. That is why in my view, we have principles which have much deeper roots in the common law such as those concerning and dealing with estoppel by conduct. That principle says that if a person fails to take steps that he or she should take to protect its interest when it should have but has done nothing, he or she can not and later seek to exercise it. In my view, s.155 and 158 provisions are there to assist people who are caught up in either of two situations. First where a person has exhausted all available remedies to remedy or redress an harm or injury occasioned or about to be occasioned to them as in the case of a decision on an National Election petition. The second situation is in a case where for example, due to circumstances beyond their control, they were not appeal to exercise their rights of review.

In the present case, SSPL was aware, or if not, had reason to know about the decision the subject of this appeal. It therefore had the opportunity to know of the full consequence and effect of the decision as against it. It had the right under s. 219 of the DCA to lodge and appeal in accordance with the requirements of that Act. Instead of exercising that right, it chose to leave it on to the appellant now deceased to appeal against the decision. Inherent in that choice, was a deliberate choice also to be bound by what consequence followed that appeal. That means in effect that, if the appellant now deceased, did not prosecute his appeal and that result in a dismissal that would be the end of the matter. It also had the inherent risk of the deceased dying prior to a hearing and decision on appeal. No satisfactory explanation is provided as to why the SSPL could not lodge an appeal as against the decision the subject of this appeal, which it says, affects it.

For these reasons, I remain unpersuaded that the application for substitution of the appellant with SSPL should be granted. I therefore dismiss that application.
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Lawyers for the Applicant/Appellant: Maladina Lawyers.
Lawyers for the Respondents: Ms. Joyce Agaru, employed lawyer.