Abi v State [2019] PGNC 372; N8062 (1 October 2019)

N8062

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (APP) 11 of 2017

JACOB ABI
Appellant

V

THE STATE
Respondent

Kokopo: Susame, AJ
2019: 26^th September, 01^st October

DISTRICT COURT APPEAL – District Court Act - Part X1, sections 219-227 of the District Courts Act 1963 – Mandatory one month prescribed in ss. 220 & 222 for filing of notice of appeal and recognizance of appeal – provisions complied with – 40 days mandatory period imposed by s 226 for Entry of Appeal in the National Court not complied with – Appeal rendered no-existent and brings into operation s 227 – Appeal dismissed – Appellant taken into custody to serve his sentence imposed by the District Court,

Cases Cited:

Moses v Magiten [2000] PGNC 73; N2023 (1 December 2000)

Counsel:

Mr. Michael Peter, for the Appellant
Miss. J Batil, for the Respondent

R U L I N G

01^st October, 2019

1. SUSAME AJ: This is the ruling on a supplementary submission from counsel representing the respondent made on 26 September 2019 seeking dismissal for non-compliance of appeal procedure against decisions of District Court to the National Court as prescribed in Part X1, sections 220-223 of the District Courts Act 1963. That appellant is ordered to serve his sentence.
   
2. Miss. Batil advanced the arguments on the basis of the following facts:
   
   • Appellant was convicted and sentenced on 15 December 2016
   • He was released on bail by the District Court on 18 January 2017 after one month of serving his sentence.
   • Recognizance of Appeal was filed on 13 January 2017
   • Notice of appeal was filed on 26 April 2017
     
3. Miss. Batil argued firstly, appellant mislead the District Court in granting him bail prior to appeal being lodged. Secondly, appeal was lodged outside of one month time limitation prescribed in s 220(2) District Courts Act. Thirdly, Notice of Appeal and the Recognizance of Appeal must be filed together and not on separately.
   
4. Mr. Peter representing the appellant argued Counsel representing the Respondent is misleading the court. Relevant procedural requirements of filing of appeal in the District Courts Act have been complied with. He asked the court to proceed to hear the substantive appeal.
   
5. Court has not been referred to any authorities by the counsels.
   

Law

6. As correctly alluded to by the counsels the relevant part in the District Courts Act that deals with appeals from District Court to the National Court is PartX1, from sections s219 to s227.
   
7. There are two separate procedures to follow. First appellant is required to file Notice of appeal stating his grounds of appeal and Recognizance of appeal at the District Court registry where decision was made. He must do that within exactly a month or 30 days. [s 220 (2) & 222 (1) ] Copies of the documents must be served on the respondent and the Registrar of National Court.
   
8. In a criminal case if the appellant is in custody he may be released on bail by order of District Court Magistrate upon production of copy of the notice of appeal and recognizance of appeal with receipt of payment of security to prosecute the appeal. [s 223 ]
   
9. Clerk of the Court the decision of which is appealed against is required to immediately forward to the National Court Registry certified copies of District Court depositions with Magistrate’s decision, Notice of Appeal, Recognizance of appeal.
   
10. The next process or procedure happens at the National Court Registry. After instituting the appeal the appellant must file an entry of appeal within exactly 40 days for hearing on a date to be fixed by the Registrar of the National Court. [s 226]
    
11. If within 40 days after instituting the appeal appellant fails to enter appeal for hearing decision and conviction of District Court may be enforced as if it had not been appealed against. [s 227]
    
12. It was held in Moses v Magiten [2000] PGNC 73; N2023 (1 December 2000) that failure to comply with s 226 attracts the application of section 227, which renders the appeal non-existent.”
13. No arguments were advanced on this point or aspect of the appeal procedure. Be that as it may it is also part and parcel of the entire appeal procedure and must be considered.
    

Issues:

• Whether appeal was filed outside of the one month time limitation?
• Whether the entry of appeal filed for hearing in the National Court was done within 40 days after appeal was instituted?
  

Facts

14. I have had the benefit of inspecting the Index to the appeal book filed on 27 June 2019 (document # 14) upon order of the court on 6 May 2019. Copy of that document had been served to the respondent.
    
15. The other document which Miss. Batil relied on to advance her arguments is titled Notice of Appeal filed on 26 April 2017. Which was made available to me for inspection under my direction. Respondent does not have copy of that document. I noted there is not much difference in the contents of both documents. Except that one is titled Notice of Appeal and the other is titled Index to Appeal Book. The cover of the Appeal Book is dated 26 April 2017. That is the date Miss. Batil picked up on to advance her arguments. I will touch on it later.
    
16. The following facts emerge:
    
    • Appellant was convicted and sentenced by Kerevat District Court on 15 December 2016
    • The Actual Notice of Appeal stating the grounds of appeal is dated 12 December 2016
    • The recognizance of Appeal was filed a day after on 13 December 2016
    • Appellant was released on bail on 18 December 2016.
      
17. Preferably Notice of Appeal and Recognizance of Appeal should be filed on the same day. Although the documents are dated one apart, that is not fatal. What matters most is the two documents must be filed within one month after the decision being appealed against was made.
    
18. The one month or 30 days period would have lapsed on 12 or 13 January 2017.
    
19. What about 26 April 2017. Was that the correct date Notice of Appeal was filed? I noted that 26 April 2017 is the date of entry of appeal. It could not possibly be the correct date of Notice of appeal. It was an obvious error that was never corrected when the cover page was prepared for binding of document.
    
20. Conclusion reached from the discussions is that notice of appeal and the recognizance of appeal were filed well within the one month mandatory time limitation. That basically answers the first issue.
    
21. Moving on appellant is required to comply with the requirement in s 226 of the Act. Which leads me to the next issue.
    
22. Appeal was instituted on or about 12 or 13 January 2017. Entry of appeal is dated 26 April 2017. 40 days mandatory period appellant was required to enter appeal for hearing after appeal was instituted would have lapsed on or about 22 or 23 February 2017. In this instance entry of appeal was filed 60 plus days well passed the 40 days mandatory period.
    
23. Mr. Peter concedes there was delay in making the entry of appeal within 40 days. He argued that the delay was caused by the late transmission of the Notice of appeal by Kerevat District Court Clerk to Assistant Registrar National Court Kokopo for entry of appeal on 26 April 2017. There is no evidence from the appellant by way of an affidavit in support of the assertions. Section 226 of the Act makes it mandatory for entry of appeal to be filed in the National Court after an appeal is instituted.
    
24. Both the District Court and the National Court Registries would have been open for official business to attend to urgent applications and filing of documents. Appellant would have proactively taken steps to file and serve copies of the notice of appeal and recognizance of appeal on the Assistant Registrar Kokopo National Court and the Respondent at their Kokopo Office for purposes of entry to be made for hearing of the appeal. Instead he sat on it until 26 April 2017 some 63 days after the 40 days mandatory period had expired.
    
25. The answer to the second issue is in the negative. So is the end result of all the discussions.
    
26. The consequential effect of non-compliance of s 226 is provided in s 227 of the Act. There is no appeal on foot to be prosecuted. The conviction and sentence of the Magistrate’s court remains to be enforced. (Moses v Magiten (supra)
    
27. Accordingly, I order that the appeal is dismissed for want of prosecution. Appellant is taken into custody forthwith to serve his sentence.
    
28. I further order that his cash bail and cash security is refunded to the Appellant forthwith.
    

________________________________________________________________
Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Accused