Peni v State [2007] PGSC 41; SC913 (30 August 2007)

SC913

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 39 OF 2005

JACK PENI
Appellant

v

THE STATE
Respondent

Kimbe: Injia, DCJ, David & Hartshorn, JJ
2007: 28 & 30 August

CRIMINAL LAW – application for leave – review of judicial act of the National Court under s.155 (2) (b) Constitution – appeal filed out of time – application registered as a review – legal principles to be satisfied – all legal principles not satisfied – application is frivolous or vexatious and an abuse of process of the Court – depositions can be used to determine facts – depositions can be used to determine sentences – application refused – conviction and sentence of the National Court confirmed.

Cases cited:
Avia Aihi v. The State [1981] PNGLR 81
Dinge Damane v. The State [1991] PNGLR 244
Lawrence Simbe v. The State [1994] PNGLR 38
Mark Bob v. The State [2005] SC808
R v. Ambaidunga Kinde, Unreported re-Independence S.C Judgment No. 799, 13th June 1974
Simon Kama v. The State [2004] SC740
The State v. Laura (No.2) [1988-89] PNGLR 982
The State v. Sabarine Yakal [1988-89] PNGLR 129

Counsel:
Appellant in person
Mr. L.J Rangan, for the Respondent

DECISION ON APPLICATION FOR LEAVE TO SEEK REVIEW

30 August, 2007

1. BY THE COURT: This is an application for leave seeking to review the conviction of the Applicant, Jack Peni by the National Court sitting at Kokopo on 11 April 2005 on a charge of murder preferred under s.300 (1)(a) of the Criminal Code (the charge). The application is made under s.155 (2)(b) of the Constitution.

BACKGROUND

2. The Applicant was charged for the murder of the deceased John Buka Paep which occurred on 21 February 2003 sometime around noon at Watwat village, Kokopo near where he resided. The deceased was surrounded by some eight (8) people and was being assaulted with sticks when he joined in the fray after they had stopped. He was the last person to assault the deceased when he punched him on his ribs with the closed fist of his right hand. The deceased walked two (2) to three (3) meters then crawled for some distance and died under a tree. The Applicant then picked up the deceased, put him on his shoulder and carried him to his brother-inlaw’s house. The Post Mortem Examination Report dated 10 March 2003 showed the deceased’s 7th and 8th left ribs were fractured, the spleen was smashed and had completely lost its original shape and about 2-3 litres of blood was in the deceased’s abdomen. The cause of death was massive loss of blood secondary to the injured spleen.

3. The Applicant was convicted upon entering a guilty plea on the charge. On 21 April 2005, he was sentence to sixteen (16) years imprisonment in hard labour less time spent in custody awaiting trial.

APPLICANT’S NOTICE OF APPEAL AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DECISION OF THE NATIONAL COURT

4. The Applicant’s Notice of Appeal and Application for Leave to Appeal Against a Decision of the National Court dated 9 May 2005 was filed on 4 July 2005 (the Notice). This was done well beyond the statutory period of forty (4) days prescribed under s.29 (1) of the Supreme Court Act (the Act) to file an appeal or obtain leave to appeal which time started running after the date of sentence: Mark Bob v. The State [2005] SC808. The Applicant did not seek any extension of time either under s.29 (2) of the Act. The consequence for non compliance is therefore that the Applicant has lost his right of appeal: see Avia Aihi v. The State [1981] PNGLR 81, Dinge Damane v. The State [1991 PNGLR 244.

APPLICATION FOR LEAVE SEEKING REVIEW AND RELEVANT LAW

5. The only avenue available now for the Applicant to have his conviction reviewed is by applying for leave seeking to invoke the Court’s inherent and discretionary powers of review under s.155 (20(b) of the Constitution. That provisions reads:-

The Supreme Court.... Has an inherent power to review all judicial acts of the National Court.

6. The relevant legal principles were first pronounced in the pioneering case of Avia Aihi v. The State (supra) and they have been affirmed, developed and applied in numerous cases since. These are that the exercise of the Court’s discretionary power pursuant to the provision under discussion can only be possible where the Applicant satisfies all of the following requirements that:-

1. it is in the interests of justice that leave be granted;
   
2. there are cogent and convincing reasons or exceptional circumstances; and;
   
3. there are clear legal grounds meriting a review of the decision.
   

7. The relevant matters to be considered when deciding whether there are cogent and convincing reasons are:-

1. the reasons for failing to appeal within time; and
   
2. the merits of the case to be argued.
   

8. According to the endorsement in the Court file, the Applicant’s Notice was received and registered by the Registry as a Notice of Review when it was filed. The Respondent has not taken issue with any irregularity of the Notice. This may be because the Applicant is self represented and therefore under the circumstances, the Court will treat the application as to form, in order.

GROUNDS FOR REVIEW

9. The grounds of review are that:-

1. whilst the Applicant understood the allegation made against him, his explanation denying his involvement in the murder of the deceased was incorrectly translated by the interpreter from Tok Pisin to the English language when the latter informed the trial judge that the Applicant admitted the charge;
   
2. there was no hard evidence to substantiate the charge;
   
3. he had witnesses to call upon to prove his innocence, namely, Councillor Kamilus of the Watwat ward, Bitapaka, Kokopo, his wife, Lucy Jack and ward committees Andrew Kais and Andrew Kauno.
   

10. All the grounds relate to conviction and will be discussed together.

DISCUSSION OF REQUIREMENTS AND GROUNDS FOR REVIEW

11. We have considered the submissions of the parties and state these.

Whether it is in the interests of justice that the Applicant should be granted leave?

12. As to ground 1, the Applicant was arraigned in the Tok Pisin language. We have carefully examined the transcript which is transcribed in English and do not see any impropriety in the way the Applicant was arraigned. According to the transcript, the Applicant understood the charge. He pleaded to the charge after the brief facts presented by the State to support the charge were re-read to him by the trial judge. The trial judge entered a provisional plea of guilty which was confirmed after he read the depositions satisfying himself that there was sufficient basis to support the charge. The Applicant’s counsel Mr Siminji from the Office of the Public Solicitor made no application in respect of the plea entered pursuant to s.563 of the Code.

13. The Applicant also did not take the opportunity offered to him in the allocatus to explain what he alleges now when he chose not to say anything. The trial judge could have decided at that point not to accept the guilty plea had the Applicant given his explanation at the time: see R v. Ambaidunga Kinde, Unreported pre-Independence S.C judgment No. 799, 13 June, 1974.

14. The reasons advance by the Applicant; that the interpreter got it all wrong because he made a wrong translation of the plea he intended to enter, that the translation may not have been perfect due to the interpreter’s educational background, that the Applicant was illiterate with a minimal education which implicitly affected his understanding of the proceedings, are not supported by the transcript as I have alluded to earlier.

15. Mr. Rangan for the State submits that this is an invention given the Applicant failed to instruct his counsel at the material time of the alleged anomaly in his plea. We agree with Mr. Rangan.

16. As to whether there was evidence before the National Court by witnesses marked as Exhibits "A" to "K" in the depositions that the deceased may have suffered serious internal injuries from the assault inflicted by others including strangulation before he joined in, we say this. There is overwhelming evidence in the depositions coupled with the Applicant’s admissions in his Confessional Statement and the Record of Interview that he punched the deceased on his ribs two of which were broken following the initial assault by about eight (8) others. Findings of the post mortem examination of the deceased confirm the impact of the assault resulting in the smashing of the deceased’s spleen, severe loss of blood and his death eventually. This also addresses grounds 2 and 3, the court noting that District Court depositions admitted into evidence without any objection on a plea matter are used to ascertain and confirm facts which are put to an accused person arraignment unless challenged and also to determine appropriate sentences: see The State v. Sabarina Yaka [1988-89] PNGLR 129. No witnesses are required to be called on a plea matter.

17. We also think that the sentence imposed by the trial judge befits the crime committed and is within the range of sentences identified in Simon Kama v. The State [2004] SC740. Nor is it in our view, given the prevalence of the offence, manifestly excessive under the sentencing range identified in The State v. Laura (No.2) [1988-89] PNGLR 982 and approved by this Court in Lawrence Simbe v. The State [1994] PNGLR 38.

18. We are also mindful of the concern raised by this Court in Simon Kama v. The State (supra) on unnecessary wastage of limited and scarce public funds on hearing of frivolous or vexatious appeals or unmeritorious appeals that are an abuse of the appeal process. We consider that this is one of those cases.

19. Mr. Rangan further submitted that the Applicant has not offered any good reason or explanation why the Notice was not filed within the statutory period nor has the Applicant satisfied the requirements discussed above and therefore the application had no merits. These he contended warranted a dismissal of the application and confirmation of the decision of the trial judge. We agree.

20. We therefore do not think that it will be in the interests of justice to grant leave.

21. We adopt our reasoning above and say that this requirement has not been satisfied. We answer the question in the negative.

Whether there are clear legal grounds meriting a review of the decision?

22. We also adopt our reasoning above and say that this requirement has not been satisfied either and answer the question in the negative.

OTHER REMARKS

23. The Applicant has failed to meet all three (3) requirements to be successful in a leave application. It is in fact a frivolous or vexatious application and amounts to an abuse of the Court’s process.

JUDGMENT

24. All the grounds for review are dismissed. The Applicant’s application for leave seeking to review the decision of the National Court sitting at Kokopo on 11 April 2005 and which passed sentence upon the Applicant on 21 April 2005 is refused. The conviction and sentence of the said National Court is confirmed.

_____________________________________________________________

Applicant: In person
Public Prosecutor: Lawyer for the Respondent