Marai, Public Prosecutor v [1996] PGSC 21; [1996] PNGLR 81 (23 February 1995)

PNG Law Reports 1996

[1996] PNGLR 81 - Public Prosecutor v Allen Ebu Marai

[1996] PNGLR 81

SC477

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE PUBLIC PROSECUTOR

V

ALLEN EBU MARAI

Waigani

Amet CJ Kapi DCJ Los J

21 February 1995

23 February 1995

APPEAL - Practice and procedure - Dismissal for want of prosecution - Failure to prosecute appeal with due diligence - Failure to make explanation for delay - Supreme Court Rules O 7 r 53.

PRACTICE AND PROCEDURE - Failure to prosecute appeal with due diligence - Dismissal for want of Prosecution - O 7 r 53 Supreme Court Rules.

Facts

The appellant filed notice of appeal against respondent who was found guilty of perjury and sentenced by the National Court on the grounds of inadequacy of sentence but did not take further steps to prosecute the appeal with due diligence. The respondent prays the Court to dismiss the appeal for want of prosecution under O 7 R 53 Supreme Court Rules.

Held

The power to dismiss an appeal for want of prosecution under O 7 r 53 of the Supreme Court Rules is to be exercised where the appellant has not prosecuted the appeal with due diligence, having regard to the fact that no explanation has been given by the appellant for the delay in prosecuting the appeal.

Cases Cited

General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331.

Counsel

C Manek, for the appellant.

J L Patterson, for the respondent.

23 February 1995

AMET CJ KAPI DCJ LOS J: This is an application made pursuant to O 7 r 53 of the Supreme Court Rules (hereinafter referred to as the Rules), for an order dismissing the appeal for want of prosecution.

The facts which are not in dispute are as follows. The respondent was charged and found guilty of perjury by the National Court and sentenced on 20 October 1993 to a fine of K500.00 to be paid within 7 days in default 6 months IHL.

On 7 December 1993, the Public Prosecutor filed a notice of appeal against inadequacy of sentence only. It appears from the record that the Public Prosecutor took no further steps to prosecute the appeal. In a letter dated 28 September 1994, lawyers for the respondent wrote to the Public Prosecutor noting that he had not taken any steps to prosecute the appeal and advised that they intend to apply to have the appeal dismissed for want of prosecution. Apparently this letter did not prompt the Public Prosecutor to take any step to further prosecute it’s appeal.

Lawyers for the respondent filed this application on 17 February 1995. Counsel for the respondent contended that the appellant has not taken steps required to be taken and has not prosecuted it’s appeal with due diligence under O 7 r 53 of the Rules.

In considering the application of O 7 r 53 in General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331 at page 334 the Court said:

“Has the appellant prosecuted his appeal with due diligence?

Mr Sleight points to the failure to attend on the Deputy Registrar; to serve the notice of appeal contemporaneously; to respond to letters endeavouring to reach a consensus on the right to pursue recovery pending appeal; as indicative of the want of due diligence. We must agree. We have no explanation given by the appellant whatsoever for the non-attendance before the Deputy Registrar and those other matters all relate to the issue of due diligence.

We consider, that though an exercise of discretion is available to a court, (the rule provides three alternative courses), it’s exercise should not avail an appellant in circumstances where there is absence of excuse.

Some relevant considerations when exercising this discretion are dealt with by this Court in Burns Philip (New Guinea) Ltd v George [1983] PNGLR 55, where the court said, at 56:

‘None of this is to say that r 25 will be regarded lightly. It is a rule of court and any appeal which does not meet it’s requirements is at risk of being dismissed.’

The matters to which the Court had regard in that case were different to those dealt with here, for primarily the absence of explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected.”

In the present case, the appellant took no action whatsoever to further prosecute the appeal. Under the Rules it is the responsibility of the appellant to prepare a draft index and serve a copy on the respondent before settlement of the appeal book (O 7 r 40, 41). It is also the responsibility of the appellant to obtain the transcript of trial and reasons for decision for correction if necessary and get it ready for the settlement of the appeal book (O 7 r 36 - 39). The record in the court file shows that the transcript of the trial and the reasons for sentence in this matter was certified and has been available since 7 December 1993. The transcript was sent on 9 December and received by Public Prosecutor on 10 December 1994. It is clear that the appellant did not take steps required under the Rules to enable the matter to progress to the hearing of the appeal. The appellant has not given any explanation why no steps have been taken for over a year in prosecuting this appeal.

We are satisfied that the appellant has failed to take steps required to be taken under the Rules and has not prosecuted the appeal with due diligence.

The appeal shall be dismissed for want of prosecution.

Lawyer for the appellant: Public Prosecutor.

Lawyer for the respondent: Patterson Lawyers.