Lavena v Police [2022] PGNC 63; N9499 (16 March 2022)

N9499

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 23 OF 2022

BETWEEN:
JUNIOR BLAISE LAVENA
Plaintiff/Applicant

AND:
THE POLICE
Respondent

Namatanai: Yagi J
2022: 11^th & 16^th March

PRACTICE & PROCEDURE – District Court Act, s. 231 – application to extend time to appeal – exercise of discretion - relevant considerations - relevant principles considered and applied - application granted.

Cases Cited:

Avia Aihi v The State [1981] PNGLR 81.
Commodore Peter Ilau v Sir Michael Somare (2007) N5511
Hon Ben Micah MP v Rigo A Lua (2015) SC1445
In the Matter of an Application by Leah Edwards (2005) N2804
Leo Duque v Avia Andrew Paru [1997] PNGLR 378.
Motor Vehicles Insurance Ltd v Martha Kuma (2002) SC650
New Zealand Insurance Company Ltd v Chief Collector of Taxes [1988-89] PNGLR 522
Ombudsman Commission v Peter Yama (2004) SC747
Re Peter Dickson Donigi v Base Resources Ltd [1992] PNGLR 110
Samson David v Manasupe Zurenuoc (2007) N3146
The Secretary for Law v Suare [1974] PNGLR 288
The State v Rochus Hilary (No. 3) (2015) N6095
The State v Augustine Batari (2017) N6966

Counsel:

Ms G. Nara, for the Plaintiff/Applicant
Ms L Jack, for the Respondent

Ruling

16^th March, 2022

1. YAGI J: In this application, the applicant seeks an order granting leave to dispense with the condition precedent to his right to appeal against a decision of the District Court in Kavieng. In effect he seeks to extend time to enable him to exercise his right to appeal. The application is made pursuant to s. 231 of the District Courts Act and s. 155(3)(a) and (b) of the Constitution.

2. The applicant has filed an originating summons and notice of motion on 24 February 2022 seeking the same orders.

3. The Court’s power under the District Courts Act, s231 is discretionary. It states:

“231. DISPENSING WITH CONDITIONS PRECEDENT.

The National Court may–

(a) dispense with compliance with a condition precedent to the right of appeal prescribed by this Act, if, in its opinion, the appellant has done whatever is reasonably practicable to comply with the provisions of this Act; and

(b) on application made ex parte by the party appealing–extend the time for compliance with a condition precedent to the right of appeal prescribed by this Act.”

4. The Constitution, s. 155(3) states:

(3) The National Court—

(a) has an inherent power to review any exercise of judicial authority; and

(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,

except where—

(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or

(d) the Supreme Court assumes jurisdiction under Subsection (4); or

(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.

5. Ordinarily an application under s. 231 of the District Courts Act is made ex parte. This is expressly provided by the provision. However, counsel for the applicant did not raise any objection to the appearance by counsel for the respondent.

6. The facts are found in the affidavit of the applicant, the affidavit of his wife (Mirriam Sevian) and the affidavit of Ian Dalu. All affidavits were filed on 24 February 2022. In brief the applicant appeared before the Kavieng District Court on 23 April 2021 and pleaded guilty to 3 counts of domestic violence offences under s. 6(1) of the Family Protection Act 2013. He was sentenced to 12 months for each count and the Court further ordered the sentences to be served cumulatively. The aggregate or total sentence being 3 years.

7. The applicant’s wife attended the Public Solicitors Office in Kavieng on 26 April 2021 to seek legal assistance to lodge an appeal against the sentence, however she was advised to return 3 days later. She returned but the lawyer was not available. By then she was on maternity leave and had to return to her village in Lamasong, Central New Ireland to care for her 2 months old baby. Whilst on leave she had to stand-in for the applicant and attend to the sick father-in-law and eventually the customary obligations following the death of her father-in-law.

8. On 05 June 2021 she visited the Public Solicitors Office and consulted Mr Tunuma, a lawyer in that office. She was asked to pay K250.00 towards photocopy cost and expenses for the District Court depositions.

9. She resumed work prematurely in late June 2021 as a result of manpower shortages at the hospital when there was spike in the Covid19 cases. From 05 June to December 2021, she made frequent visits to the lawyer’s office to check on the progress of the appeal with Mr Tunuma, however, she was constantly told to come back in two weeks’ time. When she went to the lawyer’s office again in early January 2022, she discovered that Mr Tunuma was terminated from work.

10. Due to her busy roster at work, she was not able to visit the lawyer’s office again until 09 February 2022. That was when she consulted with Mr Dalu the incumbent lawyer-in-charge of the office in Kavieng. With the assistance of Mr Dalu she was able to obtain a copy of the court depositions from the District Court registry, which was brought to Mr Dalu on 14 February 2022, hence action was promptly taken on 25 February 2022 with regards to the filing of the present application.

11. A draft notice of appeal is attached to the affidavit of Ian Dalu. The following are the proposed grounds of appeal:

“1. The Learned Magistrate erred in law and fact by handing down a sentence of 12 months imprisonment for three (3) charges to be served cumulatively as it accedes the maximum penalty under section 6(1) of the Family Protection Act 2013.

2. The Learned Magistrate erred in law and fact by failing to provide his reasoning for the decisions and or the orders made on sentence.
   
3. The Learned Magistrate failed to take into account the Defendant’s guilty plea and the fact that he has no prior convictions as strong mitigating factors thus falling into error by not imposing a more lenient or perhaps a lesser sentence or a monetary fine not exceeding K6,000.00 as provided for under section 6(1) of the Family Protection Act 2013.”
   
4. The Learned Magistrate erred in fact and law by not dealing with the matter as a Family Court Magistrate or referring the matter to the Family Court as he presumed jurisdiction as a Summary Court Magistrate rather than a Family Court Magistrate.”
   

12. During the hearing counsel for the applicant indicated that the fourth ground will be abandoned.

13. Counsel for the applicant makes two essential submissions. The first, she submits, that although there is a long delay of about 10 months the reasons for the delay in filing an appeal is satisfactorily explained in that it was not the fault of the applicant who was in remand that time was allowed to expire without compliance. The fault was due to the mismanagement by the lawyer having carriage and conduct of the instructions.

14. The second submission is that the proposed grounds of appeal are arguable.

15. Counsel for the respondent submits the relevant principles in determining the application are similar to the principles in Avia Aihi v The State [1981] PNGLR 81. The applicant has to satisfy 3 requirements; firstly, interest of justice, secondly, there are cogent, convincing and exceptional circumstances and thirdly, there are clear grounds with merit. In this case, it is argued, the applicant failed to demonstrate the existence of exceptional circumstances in terms of the delay. As to meritable grounds, it is argued the applicant pleaded to the 3 offences and the sentence was within the discretion of the Court given the prescribed penalty. No submission was made as the question of interest for justice.

16. In the case In the Matter of an Application by Leah Edwards (2005) N2804, His Honour, Cannings J, dealt with a similar application under s. 231 of the District Courts Act. His Honour identified a number of considerations to be taken into account in determining an application such as this in a civil proceeding where judgment for damages was ordered. The Court took into account the following considerations:

• the extent of the delay;
• whether the applicant has complied with the District Court order proposed to be appealed against;
• possible hardship, inconvenience or prejudice to either party;
• the nature of the judgment sought to be appealed against;
• the financial ability of the applicant;
• whether the applicant has been let down by another person, eg a lawyer, in whom trust was reasonably placed;
• whether the applicant has an arguable case on the proposed appeal; and
• the interests of justice.

17. The present case involves a criminal sanction or penalty and so the facts are different. I do not think that many of the considerations are relevant. I accept the submission by counsel for the respondent that the Avia Aihi (supra) principles are relevant. I will consider the merit of the application by applying these principles.

18. In the present case, there has been a lapse of a period of approximately 9 months from the expiration of the statutory time limit (23 May 2021) to the time when the applicant filed his application (24 February 2022). Although the period appears substantial, it appears, the fault does not rest entirely with the applicant. There had been efforts made by his wife by attending the lawyer’s office, but the response was negligible. The period of inaction by the lawyer is about 8 months (June 2021 – January 2022). It is obvious the lawyer must carry the heavier blame than the applicant. However, the Courts have held that a lawyer’s failure is not a good ground for the exercise of discretion. see for example: New Zealand Insurance Company Ltd v Chief Collector of Taxes [1988-89] PNGLR 522 and Re Peter Dickson Donigi v Base Resources Ltd [1992] PNGLR 110. The same principles have been applied in cases where lawyers were found to be negligent in lodging a claim with the Motor Vehicles Insurance Limited within 6 months: Motor Vehicles Insurance Ltd v Martha Kuma (2002) SC650; and in allowing a default judgment to be entered against a client: Leo Duque v Avia Andrew Paru [1997] PNGLR 378.

19. As regards the proposed grounds of appeal, ground 1 relates to alleged error in applying the cumulative principle in sentencing. The maximum sentence provided by s. 6(1) of the Family Protection Act is 2 years. The total sentence imposed is 3 years. Where sentences are made to be served cumulatively the total sentence must not exceed the prescribed penalty. see The Secretary for Law v Suare [1974] PNGLR 288; The State v Rochus Hilary (No. 3) (2015) N6095 and The State v Augustine Batari (2017) N6966. I find that this ground is arguable.

20. In relation to ground 2, it is alleged the learned Magistrate erred by failing to give reasons for his decision on sentence. The District Court depositions showed that the learned Magistrate made brief handwritten notes on 23 April 2021 when handing down the sentence. There appears to be nothing showing as regards the reasons for the sentence. Counsel for the respondent concedes to this fact. It has been held by the Courts that a decision maker is under a duty to give reasons. see Ombudsman Commission v Peter Yama (2004) SC747; Samson David v Manasupe Zurenuoc (2007) N3146; Commodore Peter Ilau v Sir Michael Somare (2007) N5511 and Hon Ben Micah MP v Rigo A Lua (2015) SC1445. I find this ground is also arguable.

21. With regards to ground 3, it alleges error in the exercise of discretion in sentencing to the extent that no reasons are provided. It is tied to ground 2. For the reasons already expressed I also consider that this ground is arguable.

22. In considering the relevant factors and given the comments on the arguable grounds, I am satisfied that the interest of justice outweighs all other considerations, and so in that regard, it is just, appropriate, and proper that I exercise my discretion in favour of the application.

23. Accordingly, I grant the application and order that the time for compliance with the condition precedent to the right of appeal to the National Court, in particular those prescribed by ss 220 to 222, be extended for a further period of fourteen (14) days as of today. For the avoidance of doubt the 14 days period will expire on 30 of March 2022.

24. As regards the second relief on the question of stay in enforcement of the sentence I note counsel for the applicant did not make any submission on this aspect. In the circumstances I infer that the relief sought has been abandoned and therefore no consideration is required or necessary.
_____________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent