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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCR NO 76 0F 2003
BETWEEN
MARK BOB
Applicant
AND
THE STATE
Respondent
KIMBE: SALIKA J, CANNINGS J, GABI J
1, 4 NOVEMBER 2005
APPLICATION FOR LEAVE TO SEEK REVIEW
CRIMINAL LAW – appeals and reviews – time limit for appealing under Supreme Court Act – start-date of appeal period – reviews under Section 155(2)(b) Constitution – criteria to be satisfied.
The applicant was convicted by the National Court of attempted unlawful killing and armed robbery and sentenced to a total of nine years imprisonment. The decisions on conviction and sentence were handed down on the same day. Four days later the applicant escaped from custody. He was at large for more than nine months before being recaptured. Shortly after being recaptured he applied to the Supreme Court for review of his conviction on the ground that there had been a miscarriage of justice in the National Court.
Held:
(1) A person who has been convicted of a criminal offence by the National Court and wants to have their conviction and/or sentence reviewed by the Supreme Court must either give notice of appeal within 40 days under Section 29 of the Supreme Court Act or apply for leave to seek review under Section 155(2)(b) of the Constitution.
(2) The 40-day appeal period starts to run immediately after the date on which the sentence is imposed.
(3) When deciding whether to grant leave under Section 155(2)(b) the Supreme Court considers three criteria, all of which should support the grant of leave:
(i) it is in the interests of justice to grant leave;
(ii) there are cogent and convincing reasons and exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity; and
(iii) there are clear legal grounds meriting a review of the decision.
(4) In deciding whether there are cogent and convincing reasons, the following matters are relevant:
(i) the reasons for not filing an appeal within time; and
(ii) the merits of the case sought to be argued. (Danny Sunu v The State [1984] PNGLR 305 followed.)
(5) In the present case, the applicant spoiled his chances of being granted leave by escaping from custody and being at large for more than nine months, not surrendering and then making a very late application for leave.
(6) The applicant satisfied none of the criteria. Therefore leave was refused.
Cases cited:
The following cases are cited in the judgment:
Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510
Avia Aihi v The State [1981] PNGLR 81
Danny Sunu v The State [1984] PNGLR 305
David Toll v The State (1989) SC378
Doreen Liprin v The State (2001) SC673
Jeffrey Balakau v Ombudsman Commission [1996] PNGLR 346
Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437
Moi Avei and Electoral Commission v Charles Maino (1998) SC584
New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522
Sakarowa Koe v The State (2004) SC739
Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Ch No 138) [1987] PNGLR 433
The State v Colbert [1988] PNGLR 138
APPLICATION
This was an application for leave to seek review of the conviction of the applicant by the National Court on charges of armed robbery and attempted unlawful killing.
Counsel:
M Bob, the applicant, in person
P Kaluwin for the respondent
BY THE COURT:
This judgment is about an application for leave to seek review of the conviction of the applicant by Lenalia J in the National Court at Kokopo, on charges of armed robbery and attempted unlawful killing. The application for leave is made under Section 155(2)(b) of the Constitution. The court heard both the application for leave and (on the assumption that leave was granted) the substantive application for review of the applicant’s conviction and sentence.
BACKGROUND
On 20 December 2002 Lenalia J convicted the applicant, Mark Bob, and a co-offender, Wesley Vincent Oswald, of armed robbery and attempted murder. The offences were found to have been committed at Tobera No 1 Plantation, East New Britain, on 6 July 2001. The armed robbery involved stealing two sums of cash, K2,479.04 and K250.00, with actual violence. The attempted killing was in relation to a plantation manager, Jack Tulvue.
The appellant was sentenced the same day, 20 December 2002. He was given six years for armed robbery and nine years for attempted unlawful killing. The two sentences were to be served concurrently. He was committed to custody at Kerevat Correctional Institution.
A few days after being sentenced the applicant escaped from custody. He was at large for more than nine months, before being recaptured and re-committed to custody.
On 10 October 2003 he filed an application for review of his conviction; the 40-day period for filing an appeal having lapsed well before then. Our interpretation of his application for review is that it is only in relation to his conviction, not the sentence.
THE REVIEW
The following grounds of review are relied on:
A No evidence.
B No eyewitness.
C I was sentenced by the Judge’s believe.
Note: I apologise for sending my appeal late because I was in a mass breakout just few days after I was sentenced. Now that I am back in prison can you please accept my appeal? [sic]
THE MAJOR ISSUES
Before we consider looking into the merits of the grounds of review in detail, there is an important preliminary issue to address: do we allow this review to continue, given that the applicant has made his application after the appeal period expired?
The major issues for determination therefore are:
APPLICANT’S SUBMISSIONS
The applicant submitted that the reason that he had not filed his appeal in time is that he had escaped from custody. He filed his application for review soon after he was recaptured. He was sentenced to six months extra imprisonment after being convicted of the offence of escaping from lawful custody.
As to his trial, the applicant submitted that the key State witnesses lied under oath by saying that they saw him at the crime scene. He submitted that the evidence was that the victim did not recognise him until 4 January 2002 at the police station; the day on which the applicant claims that he was assaulted by the police. He claims that there was a conspiracy to convict him and that he is an innocent man. The National Court did not visit the crime scene and therefore was not in a position to verify the correctness of the measurements provided by the witnesses in their evidence. The State witnesses were not credible, and lied, he argued.
RESPONDENT’S SUBMISSIONS
Mr Kaluwin, for the State, submitted that the court should refuse to hear the matter as the applicant did not have any valid reasons for not appealing within the 40-day time limit set by the Supreme Court Act. The applicant broke the law by escaping and cannot now come to the court and ask for his case to be reviewed. In the circumstances the applicant would need to convince the court that a grave injustice occurred. He has not done that, so leave should be refused.
THE 40-DAY TIME LIMIT FOR APPEALS TO THE SUPREME COURT
Section 29
Section 29 (time for appealing under Division 3) of the Supreme Court Act sets a 40-day time limit for an appeal by a convicted person who wants to appeal to the Supreme Court. It states:
(1) Subject to Subsection (2), where a person convicted desires to appeal or to obtain leave to appeal to the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of conviction.
(2) The time within which notice of appeal, or notice of an application for leave to appeal, may be given may be extended at any time by the Supreme Court on application made within 40 days after the date of conviction.
(3) In the case of a conviction involving a sentence of death or of corporal punishment—
(a) the sentence shall not be carried out until after the expiration of 40 days, or such further time as is allowed under this section, after the date of conviction; and
(b) if notice is given in accordance with Subsection (1), the sentence shall not be carried out until after the determination of the appeal, or where an application for leave to appeal is finally refused, of the application.
Section 17 not applicable
The time limits and other laws regulating appeals in criminal cases are imposed under Division III.3 (additional provisions relating to appeals in criminal cases) of the Supreme Court Act. They are not imposed under Division III.2 (additional provisions relating to appeals in civil cases). Section 17 of the Act imposes a 40-day time limit for appealing against judgments of the National Court in civil cases. It does not apply to criminal appeals. (See Sections 13 and 20.) On that point we respectfully point out that in a recent case the Supreme Court incorrectly referred to Section 17 rather than Section 29, in a criminal appeal, though not in such a way that it had any practical effect on the outcome of the case or caused prejudice to anyone. (Sakarowa Koe v The State (2004) SC739, Sevua J, Kandakasi J, Lenalia J.)
“Date of conviction”
The key date for computing the 40-day limit for a criminal appeal is the “date of conviction”. In the present case, that date is easy to identify as the applicant was convicted and sentenced on the same day, 20 December 2002. However, as this case has raised the issue of application of Section 29, we will digress briefly to address some other questions arising from it.
First, if the court imposes a sentence on a date after the date on which the person is actually convicted, when does the 40-day period start to run? On the date that the person is actually convicted? Or the date the person is actually sentenced?
Secondly, does Section 29 only impose the 40-day limit on appeals against conviction? That is, is there no such limit on appeals against sentence?
When does the 40 days start?
On the first issue, we suggest that the 40-day time limit starts immediately after the person is sentenced. Although Section 1 of the Supreme Court Act, which gives a definition of “judgment”, seems to draw a distinction between a “conviction” and “sentence” and although a criminal trial in which a person is convicted results in two distinct decisions, the conviction and the sentence, there are other provisions of the Supreme Court Act which suggest that the National Court’s decision on sentence is subsumed by the word “conviction”.
Section 29(3), for example, which states that the death sentence shall not be carried out until after the expiration of 40 days after the date of conviction is triggered in cases of “a conviction involving a sentence of death”. This connotes that the sentence is regarded as part-and-parcel of the conviction.
Section 24 confers on the Public Prosecutor the right to appeal against any decision of the National Court as to sentence, and defines the term “sentence” to include “any order made on conviction with reference to the person convicted or his property”.
The other thing to note about Section 29 is that it is not the provision of the Supreme Court Act which creates the right of appeal. That right is conferred by Section 22 (criminal appeals), which states:
A person convicted by the National Court may appeal to the Supreme Court—
(a) against his conviction, on any ground that involves a question of law alone; and
(b) against his conviction, on a question of mixed fact and law; and
(c) with the leave of the Supreme Court, or on the certificate of the National Court that it is a fit case for appeal, against his conviction on any ground of appeal—
(i) that involves a question of fact alone; or
(ii) that appears to the Supreme Court to be a sufficient ground of appeal; and
(d) with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.
As Los J pointed out in Doreen Liprin v The State (2001) SC673, Supreme Court, Amet CJ, Kapi DCJ, Los J, it will sometimes be the case that the National Court will not impose sentence on a convicted person until a date more than 40 days after the actual conviction. If the term “date of conviction” were interpreted literally, such a person would have to seek leave to extend the time for appealing against their sentence within 40 days after their actual conviction, even though he or she would not know what the sentence is, or sometimes, when it was being handed down. This would not make sense. Therefore, it would give effect to the intention of the Parliament and advance the purpose of the legislation to interpret the term “date of conviction” in Section 29 to mean, in common parlance, the “date of sentence”.
Does the 40-day limit also apply to appeals by convicted persons, against sentence?
That would mean, returning to the second issue raised earlier, that the 40-day time limit applies irrespective of whether the appeal is against conviction or sentence.
There is an alternative interpretation available, based upon the reasoning of the Supreme Court in Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510, Kidu CJ, Kearney DCJ, Greville-Smith J, Andrew J, Kapi J. This would suggest that, as there is no specific time limit for appealing against sentence, the 40-day limit does not apply to appeals against sentence; all that is necessary is that the person appeals “with all convenient speed”, in accordance with Section 12 of the Interpretation Act. However, that interpretation is defeated when careful consideration is given to the wording of Section 29. It does not say that that is only applying to appeals against conviction. It simply imposes a time limit where “a person convicted desires to appeal”.
Suggested guidelines
It seems that the precise meaning of the term “date of conviction” has not previously been addressed by the Supreme Court. Perhaps there is a need for the matter to be clarified by legislative amendment. Until that happens we suggest that the following guidelines be used:
The present case
As we pointed out earlier the start-date for the 40-day appeal period in the present case is easy to identify. The date of actual conviction and the date of actual sentence were the same: 20 December 2002. Therefore the convicted person had to appeal within 40 days after that. He had to appeal by 29 January 2003. The fact that the Supreme Court was on “vacation” during that time has no effect on computation of the appeal period (New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522, Supreme Court, Bredmeyer J, Amet J, Barnett J; Jeffrey Balakau v Ombudsman Commission [1996] PNGLR 346, Supreme Court, Amet CJ, Kapi DCJ, Los J).
The convicted person in the present case, Mark Bob, did not appeal within time. Therefore he lost his right of appeal. However, he could still ask the Supreme Court to invoke its jurisdiction under Section 155(2)(b) of the Constitution to review the decision of the National Court.
THE REVIEW JURISDICTION OF THE SUPREME COURT UNDER SECTION 155(2)(b) OF THE CONSTITUTION
Section 155(2)(b) of the Constitution states:
The Supreme Court ... has an inherent power to review all judicial acts of the National Court.
It is important to note that the exercise of jurisdiction by the Supreme Court under this provision is not automatic. A person has to first convince the Supreme Court that it should engage in a review. That is why a matter brought before the Supreme Court under Section 155(2)(b) is properly regarded as consisting of two distinct steps. First, a determination of whether leave should be granted to the applicant for a review to take place. Secondly – if leave is granted – a determination of the review itself. If leave is not granted, then there is no review.
In determining whether to grant leave for review, three criteria have to be satisfied:
In deciding whether there are cogent and convincing reasons, the following matters are relevant:
(a) the reasons for filing an appeal within time; and
(b) the merits of the case sought to be argued.
The above principles are well established, having been based on the landmark decision of the Supreme Court in Avia Aihi v The State [1981] PNGLR 81, Kidu CJ, Kearney DCJ, Greville-Smith J, Andrew J, Kapi J. The principles have been developed and applied in a number of other leading Supreme Court cases: Danny Sunu v The State [1984] PNGLR 305, Pratt J, McDermott J, Woods J; The State v Colbert [1988] PNGLR 138, Kapi DCJ, Bredmeyer J, Amet J; David Toll v The State (1989) SC378, Bredmeyer J, Woods J, Konilio J; New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522, Bredmeyer J, Amet J, Barnett J; and Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437, Amet CJ, Kapi DCJ, Los J.
These principles apply to both civil and criminal cases, though in criminal cases the Supreme Court has been more inclined to grant leave as almost always the liberty of the applicant is at stake.
If the applicant has no right of appeal and no way to come to the Supreme Court except under Section 155(2)(b), the above criteria do not need to be satisfied (Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Ch No 138) [1987] PNGLR 433, Supreme Court, Kidu CJ, Kapi DCJ, Amet J; Moi Avei and Electoral Commission v Charles Maino (1998) SC584, Supreme Court, Hinchliffe J, Sheehan J, Jalina J.
SHOULD THE APPLICANT BE GRANTED LEAVE TO SEEK REVIEW?
In the present case the applicant, Mark Bob, had a right to appeal against his conviction. He had to appeal by 29 January 2003. He did not do anything until 10 October 2003 when he filed, what can only be regarded as, an application for leave for review under Section 155(2)(b). That was eight months and eleven days after the expiry of the appeal period. He therefore has to satisfy the three criteria outlined above.
1 Is it in the interests of justice that he be granted leave?
No, we do not think so, mainly for the reasons advanced by Mr Kaluwin in his submission. The applicant escaped four days after he was sentenced and was at large for a long time. He has been convicted and sentenced for the escape. But he seems to have got off rather lightly with an extra sentence of only six months. It would send the wrong message to the prison community if the court were to be prepared to grant leave to someone who has shown contempt for the justice system, which is what happens when a prisoner escapes. Another thing we have considered is the sentences imposed by the National Court. Six years for armed robbery and nine years for attempted killing are both sentences in the low range. Frankly, they are light sentences given the violent nature of the crimes. Furthermore the sentences were made concurrent.
No. Here, we consider, again, the fact that the applicant escaped and was at large for such a long time. If he had been at large for only a day or two and then surrendered to the authorities, we might be prepared to look at his case differently. But he was at large for more than nine months and did not surrender. He was recaptured. So he did not have good reasons for delaying his appeal or review. We have looked at the merits of the case he wants to argue. The trial turned upon identification evidence and we are satisfied that the trial judge applied the relevant law in deciding to accept the evidence of the key State witnesses. The upshot is that there are neither cogent and convincing reasons nor exceptional circumstances.
No. Our examination of the transcript of the trial suggests that the trial judge conducted the proceedings in a proper manner. We see no support for the proposition that the conviction of the applicant was the result of a conspiracy.
The application for leave fails to meet all the necessary criteria and therefore leave will be refused.
OTHER ISSUES
The other issues we identified earlier will not be pursued, as we have concluded that leave for a review under Section 155(2)(b) of the Constitution is refused.
JUDGMENT
The Supreme Court will therefore direct entry of judgment in the following terms:
Judgment accordingly.
________________________________________________________________________
Lawyer for the appellant : Self-represented
Lawyer for the respondent : Public Prosecutor
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