SC667

PAPUA NEW GUINEA

[In the Supreme Court of Justice in Waigani]

SCRA NO. 43 of 1998

BERNARD JUALI
Appellant

V

THE STATE
Respondent

WAIGANI: LOS, SEVUA & KANDAKASI, JJ.
2001: APRIL 25
AUGUST 30

APPEALS – Application to dismiss for want of prosecution – Appellant insisting on inclusion of evidence not forming part of evidence in the Court below without any legal basis – Conceding to having no basis for that position at hearing of application – Substantial periods of time allowed to pass without any action – Failing to reply to correspondence – Undue delay established – No satisfactory explanation for the delay offered by the appellant or his lawyer – Want of Prosecution made out – Appeal dismissed for want of prosecution – Supreme Court Rules O. 7 r. 53.

Cases Cited
General Accident Fire & Life Assurance Corporation Ltd [1990] PNGLR 331
Burns Philip (New Guinea) v. George [1983] PNGLR 55
Melchior Pep v. Puri Ruing& Electoral Commission (22nd June 1999) SC614
Martha Limitopa v. The State & Anor [1988-89] PNGLR 364

Counsels
Mr. W.Arua for the Appellant
Mr. R. Auka or the Respondent

30th August 2001

LOS, J: The appellant is serving a life sentence for wilful murder of his wife. He has lodged an appeal against the decision on 2nd June 1998 through his lawyer. The applications before the court were firstly by the Respondent to dismiss the appeal for want of prosecution. The second one was by the Appellant seeking to dispense with the requirement for certification of the appeal book, a reason forming the basis of the first application. My brothers Sevua and Kandakasi JJ have adequately covered the facts and law on application for want of prosecution. They concluded that the appellant and his lawyer had failed to exercise due diligence and therefore the appeal must be dismissed. I differ however, in two respects. Firstly, I differ in relation to the lawyer’s explanation and the appellant's explanation as to the delay. The Appellant was incarcerated. I consider that despite being a policeman before, the appellant could not be expected to have a freedom to do anything in a bigger way to prosecute his appeal. Secondly, his lawyer had some explanation and that I must accept in the circumstances of this case. The emotional and explosive nature of the case is self-explanatory. There were numerous activities obstructive in nature against the appellant. The appellant’s lawyer was threatened and attacked. Thirdly I do not consider that in a criminal conviction case, the fact that a person could lodge a claim against his lawyer on a ground of professional negligence should be comforting and supportive to an application for want of prosecution by the respondent. The case cited, namely, Martha Limitopa v. PNG [1988-89] PNGLR 364 and most of other cases referred in that case deal with civil cases where monitory gain or compensation would satisfy many claims, in my view. In this case monetary compensation would have little or bear little relevance to the appellant who has been sentenced to spend his remaining life in prison. In fact I consider that money consideration should not obstruct any right of appeal at all. The last consideration, in my view is the fundamental right to come to court whether in a first instance or on appeal by a person charged with an offence. That right is protected and enhanced under section 37(15) of the Constitution. The section 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’’

I acknowledge that in numerous cases the phrase ''according to law'' has been interpreted to include the provisions of various acts, regulations and rules. So an argument may be raised that to be entitled to a constitutional right one must first comply with the rules and regulations. Although I consider that rules and regulations are important to bring about the issues in an orderly fashion to assist all the parties so that no party is surprised by it, they cannot be used to frustrate, inconvenience or bar any person’s substantive constitutional right to have access to the highest court, namely, the Supreme Court of Papua New Guinea. 

The last issue I want to address is whether the circumstances shown to be relied on as forming the bases of want of prosecution gives whole of the burden on the appellant to bear. Putting aside any question of legality or reasonableness, the delay was caused by a dispute between the appellant’s lawyer and the Respondent’s lawyer on inclusion and variation of placement of certain documents. The dispute was between both parties. Placement of certain documents in ‘right’ place is a minor matter for convenience. That can be subject of a peremptory order pursuant to Rule 53(b) of the Supreme Court Rules. But the major one related to whether the record of sentences imposed on the Co-offenders could be included. A direction should have been sought by either party. There would not be any real prejudice on either party. I accept that in an application for want of prosecution, lack of prejudice to a respondent is peripheral to the public interest on reaching finality of a case. That would in my view be more relevant to a civil case when an appeal may be just an attempt to delay a successful party from enjoying the fruits if its success. This is a criminal case and I have addressed the right of a person in a criminal case earlier.

I would therefore refuse to grant an order to dismiss the appeal for want of prosecution. I would order that the requirement for certification of the appeal book be dispensed with. I would order that preparation of the appeal book be completed and the appeal be set down for hearing at the next sittings of the Supreme Court.

SEVUA & KANDAKASI JJ: This Court heard two applications on the 25th April 2001. The first was the Respondent’s seeking a dismissal of the proceedings for want of prosecution within the meaning of Order 7 Rule 53 of the Supreme Court Rules (Rules). The second was the appellant’s seeking to dispense with the requirements for certification of the appeal book. The appellant decided not to pursue his application in the course of the hearing after conceding to having no basis to insist upon an inclusion in the appeal book, evidence not led and admitted into evidence at the trial. The draft appeal book also had other defects, which needed to be corrected. He then argued that the delay in promptly prosecuting his appeal was caused by the respondent’s refusal to certify the appeal book. The respondent argued that, its refusal was legitimate and that the appellant failed to prosecute his appeal promptly and failed to reply to correspondence and take all the steps that should have been taken promptly. That amounted to a want of prosecution within the meaning of O.7 r. 53 of the Rules. The issue to be determined therefore, is this, has the appellant failed to prosecute his appeal promptly within the meaning of O.7 r. 53 of the Rules.

Relevant Chronology and or Facts

On 24th April 1998, the appellant was convicted and sentenced to life imprisonment for the wilful murder of his wife. He lodged an appeal against that decision on 2nd June 1998, through J.F.Aisa & Associates Lawyers. The Public Prosecutor filed an appearance for the respondent on 11th June 1998. By letter dated 16th November 1999 (5 months later), the appellant requested the Registrar of the Supreme Court to provide copies of a number of documents. He does not say if those documents were received, but did compile a draft appeal book sometime later.

The draft appeal book was sent to the respondent to certify its correctness. The respondent refused to do that because of a number of errors. The main one was the inclusion of certain documentary evidence not forming part of the evidence before the trial judge. A letter confirming that position and suggesting appropriate corrective measures was sent to the appellant by the respondent on 3rd January 2000. 

The appellant did not correct the errors and instead insisted upon the Respondent certifying the draft appeal book. He did not reply to the letter of 3rd January 2000, from the respondent. So on 4th January 2000, the respondent filed its application to dismiss the proceedings.

The respondent’s application was listed for hearing on 21st February 2001. The parties appeared before Los, Salika and Sawong, JJ. and the application was adjourned to the April 2001 sittings of the Supreme Court. That was due to the appellant not being served with the application.

After the adjournment, the appellant changed his lawyer to Wal & Co Lawyers. Those lawyers were served with the application on 5th March 2001. Then by letter dated 15th March 2001, the respondent reiterated its position on the draft appeal book and asked that the corrective measures it had earlier suggested are taken, but the appellant refused to do that through his new lawyers.

The appellant’s new lawyers filed his application on 20th April 2001. That application was set for hearing on 4th May 2001, but was brought forward to the 25th of April 2001, which was, as noted, abandoned at the hearing of the respondent’s application.

Through Mr. Joseph Aisa’s affidavit sworn on 19th April 2001, the appellant seeks to explain the delay and failure to take the corrective measures suggested by the respondent. Mr. Aisa said, as lawyer for the appellant, he was threatened a number of times by the relatives of the deceased between August 1998 and June 2000. But he also said that, he was determined to continue to act for the appellant, and he so did until 30th September 2000, when he was suspended from practicing as a lawyer.

Further, Mr. Aisa said, he did not accept the respondent’s suggestions because the evidence the appellant sought to include in the appeal book were important because the appellant had co – offenders who were given lighter sentences. 

Relevant Law

The law concerning want of prosecution of an appeal to the Supreme Court is well settled in our jurisdiction. An appellant is always under an obligation to prosecute his appeal with "due diligence". That involves taking all the steps that need to be taken to get his appeal ready for hearing without unnecessary delay. Once the matter is ready for hearing, he has to attend at a call-over and secure a date and proceed with the hearing. It also involves prompt responses to correspondence from the other parties; attending on the Registrar of the Supreme Court; obtaining an appointment and settling the index, and file and serve his appeal book in accordance with the settled index.

Order 7 r. 53 of the Rules sets out that position in these terms:

"53.	Where an appellant has not done any act required to be done by or under these rules or otherwise has not prosecuted his appeal with due diligence, the court may—

(a)	order that the appeal be dismissed for want of prosecution;
(b)	fix a time peremptorily for the doing of the act and at the same time order that upon non compliance, the appeal shall stand dismissed for want of prosecution, or subsequently, and in the event of non compliance, order that it be so dismissed; or
(c)	make any other order that may seem just."

A number of cases to date have interpreted and applied this rule. One such case is General Accident Fire & Life Assurance Corporation Ltd [1990] PNGLR 331, which has been referred to by Mr. Auka counsel, for the respondent. In that case, this Court held that (from the head note):

1.	The power to dismiss an appeal for want of prosecution pursuant to r 53(a) of the Rules is to be exercised where the appellant has not prosecuted the appeal with due diligence, having regard to the public interest in finalising litigation.

2.	Matters relevant to want of due diligence include, failure to attend on settlement of the appeal book, failure to explain non attendance, failure to respond to correspondence and failure to provide any explanation for dilatory conduct where an explanation could properly be expected.

3.	The discretionary power under r 53(a) should be exercised where no explanation for want of due diligence is made.

Prior to the above case, the Supreme Court in Burns Philip (New Guinea) v. George [1983] PNGLR 55, made it clear that the power to dismiss for want of prosecution is a discretionary one. The Court may either dismiss an appeal for want of prosecution or make other orders it considers appropriate in the circumstance of the case. The Court also made it clear that a failure to prosecute an appeal promptly in accordance with the Rules cannot be considered very lightly because the appeal stands the risk of being dismissed. 

Many subsequent cases have applied the above principles and have dismissed a large number of appeals. One example is Melchior Pep v. Puri Ruing& Electoral Commission SC614 (22nd June 1999), although in the context of an election petition.

These authorities make it very clear that, an applicant in an application to dismiss an appeal for want of prosecution has the burden to show a case of delay. Once that burden is discharged, the burden then shifts to the respondent to such an application to provide a reasonable explanation for the delay and indicate his preparedness to proceed to a hearing of the appeal.

Present Case

In the present case, there has been a lengthy delay of more than 2 years 10 months since the appeal was first lodged on 2nd June 1998. The draft appeal book was not completed until some time after November 1999. In the draft appeal book, the appellant insisted upon the inclusion of a number of documentary evidence, which did not form part of the evidence before the trial judge. That was despite repeated requests by the respondent to exclude them in addition to some minor changes to the layout in the draft appeal book. The appellant’s position was maintained up to the hearing of the respondent’s application. He even filed his application seeking a dispensation of the right of the respondent to certify the appeal book despite the clear and legitimate objections by the respondent. Only during the course of the hearing with the Court’s continuous request to counsel for the appellant for the legal basis for the position taken by his client, that he conceded to having no legal basis for his client’s stance. Following that, he decided not to pursue his application.

We are satisfied that the respondent has made out a case of undue delay in the prosecution of the appellant’s appeal. The respondent has therefore discharged its burden to show a case of want of prosecution within the meaning of O. 7 r. 53 of the Rules. The appeal therefore stands the risk of dismissal for want of prosecution. The only way in which that can be avoided is by offering a reasonable explanation for the delay.

We are satisfied that the appellant has not provided a reasonable explanation for the delay of more than 2 years and 10 months. No explanation has been offered for the delay or the lack of any activity from the date of the lodgement of the appeal and 31st March 1999, when the appellant wrote to the Deputy Registrar of the Supreme Court. Likewise, there is no explanation as to whether, the Deputy Registrar replied to that letter, and if so, when. Then, there is no explanation as to when the draft appeal book was actually completed and first sent to the respondent. Further there is no explanation for the failure to reply to correspondence when a reply was reasonably expected.

The appellant has tried to attribute part of the delay to his previous lawyer being subject to threats. We do not consider that to be of any consequence because Mr. Aisa said he was determined to continue to pursue his client’s appeal and the threats did not stop him from doing so. 

The other explanation offered was that, the appellant’s previous lawyer was suspended from practice on 30th September 2000. There is no explanation as to why the appeal book could not have been finalised before that event having regard to the respondent’s letter of 3rd January 2000. The appellant had more than 8 months to do that but he did not. This excuse is not supported by the facts and is therefore unacceptable.

In addition to the above, the appellant says that the delay was caused by or contributed to by the respondent’s refusal to certify the draft appeal book. That argument proceeds on the basis that the draft appeal book was correct in every respect, and that the respondent had no good basis for its refusal. The respondent was entitled to refuse to certify the draft appeal book because it was not in order. A number of changes were required to be made to enable certification. That included the removal of a number of documentary evidence not forming part of the evidence before the trial judge. That is why the appellant conceded as he did, and decided not to proceed with his application for a dispensation of the respondent’s right to certify the appeal book. 

It was incumbent on the appellant to apply for a dispensation of the requirements for certification when the respondent refused to certify the draft appeal book. The need for that arose, at the latest, before the end of January 2001 after the letter from the respondent dated 3rd January 2001. The appellant did not file and or make such an application. 

We are of the view that, by the appellant’s own conduct, he was not prepared to facilitate an expeditious hearing of his appeal. There is indeed no evidence from the appellant himself as to what he personally did to ensure a prompt hearing of his appeal. In the absence of any evidence to the contrary, he appears to have simply sat back and did nothing about his appeal.

Of course the appellant might argue that because he was in prison he could not do much, except to wait for his lawyer to take all the steps that should have been taken. We do not consider such an argument reasonable. This is so, especially in the absence of any evidence showing that he was prevented from communicating with his lawyer in any manner. There is also no evidence of any other difficulties he may have had in pursuing his appeal.

On the other hand we note that the appellant is a former policeman. A private lawyer is representing him. He therefore had the means to expedite his appeal. Unfortunately, there is no evidence of what he did to get his lawyers to expedite a hearing of his appeal. He is the person that is personally affected. There is a life imprisonment sentence hanging over him. Hence, it was in his interest to take personal responsibility to ensure that his lawyers did not unnecessary delay a hearing of his appeal after having lodged it. He has failed to discharge that responsibility.

It could be argued that, his lawyers failed to expedite his appeal. Therefore, he should not be penalised in terms of dismissing his appeal. Section 37(15) of the Constitution could be brought in to argue that the appellant has a right to have his conviction and sentence reviewed by this Court. As such, his appeal should not be dismissed due to his lawyers’ failure to expedite the hearing of his appeal. 

There are a number of difficulties with this argument. Firstly, the appellant did not raise that argument. Secondly, the appellant abandoned his application for a dispensation of the certification of the appeal book and did not offer any argument or suggestion as to why he could not promptly prosecute his appeal. Thirdly, and more fundamentally, the right conferred by s. 37(15) of the Constitution has to be exercised according to law. In other words, that right or any other right for that matter has to be exercised "according to law". That includes the procedural rules such as O. 7 r. 53 and the case law built around them. In addition, there is the well-known principle that unless one take steps promptly to exercise his rights and or to protect a possible breach of his rights, he can lose his rights. In the context of an appeal, lodging an appeal does not entitle an appellant to sit on it for as long as he likes. The onus is always on him to prosecute his appeal with due diligence. A failure to do so attract a dismissal of the appeal to bring about finality in litigation unless, there is very good reasons for any delay in discharging that obligation. Finally, there is ample authority for the proposition that, a lawyer’s negligence or failure to take the appropriate steps in any proceedings, does not form any good basis to excuse the need to comply with any rule or requirement in any proceedings before the Court. Proceeding on that basis, claims have been successfully lodge against negligent lawyers as in Martha Limitopa v. The State & Anor [1988-89] PNGLR 364.

We appreciate that there may be an argument in criminal cases, as in this case, where there is a life imprisonment that, the prisoner has no recourse against his negligent lawyer. We are of the view that, where an appellant, again as in the present case, fails to provide any explanation for failing to prosecute his appeal with due diligence, the negligence of his lawyer should not be used as the basis to avoid a dismissal of his appeal. If however, the appellant provides evidence of what he has done, which clearly shows that there is nothing else he could have done, and the delay was caused entirely by his lawyer, the Court should be slow to dismiss an appeal for want of prosecution. 

In the present case, we find that both the appellant and his lawyers failed to show any interest in having the appeal presented expeditiously. There is no explanation whatsoever from the appellant as to what steps he took to ensure that his lawyer was taking all the steps that needed to be taken to get his appeal ready for hearing without unnecessary delay. His lawyer allowed substantial periods of time to pass without taking any meaningful steps to get the appeal ready for hearing. That was in addition to insisting upon the inclusion of documentary evidence, which did not form part of the evidence before the learned trial judge. We are of the view that, had the appellant constantly checked on the progress of his appeal with his lawyer, some, if not all, of the delays could have been avoided. The respondent has established a case of "undue delay" and the appellant failed to offer a reasonable explanation for the delay. In the circumstances, we are of the opinion that the appeal should be dismissed for want of prosecution. 

For these reasons we uphold the respondent’s application and order that the appeal be dismissed for want of prosecution.

Costs will follow the event.
___________________________________________________________
Lawyers for the Appellant:		Joe Wal & Co. Lawyers
Lawyers for the Respondent:		Public Prosecutor