Parang v Independent State of Papua New Guinea [2010] PGSC 17; SC1068 (28 July 2010)

SC1068

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 29 OF 2007

BETWEEN:

CAMILLUS PARANG
Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Kokopo : Kirriwom, Batari, Yagi, JJ
2008 : 26 November
2010 : 28 July

Judicial Review – Application for Judicial Review - Conviction - Judicial Review of criminal cases – Absolute discretion in Supreme Court to review decisions of National Court – Principles applied.

Judicial Review - Application for Judicial Review - Conviction – Application to quash conviction – Delay – Notice of Appeal lodged outside time to appeal – Applicant lost right to appeal – Whether cogent or convincing reasons for delay or exceptional circumstance or matters in the interest of justice or clear legal ground exist to merit a review – Onus on applicant to show cogent and convincing reasons for delay – Applicant to further show exceptional circumstances meriting a review - Application refused – Constitution s. 155 (2)(b) - Supreme Court Act.

FACTS

The applicant was convicted by the Kokopo National Court on one count of indecent act directed at a child under the age of 16 years and one count of rape, both counts committed in aggravating circumstances. He did not appeal the convictions until 4 months after the expiry date of the 40 days within which to appeal. Two days before the hearing of this application (more than 2 years after conviction and sentence), the applicant filed amended grounds of appeal against his conviction.

HELD

1. Applicant in a judicial review application must show cogent or convincing reasons or exceptional circumstance for delay or there are matters in the interest of justice, the conviction should be reviewed or there are clear legal ground meriting a review

2. Applicant has not shown cogent or convincing reasons or exceptional circumstance or there are matters in the interest of justice, or clear legal grounds exist to merit a review.

Cases cited:

Application by Wili Kili Goiya [1991] PNGLR 170
Avia Aihi v The State (No.1) [1981] PNGLR 1
Avia Aihi v The State (2) [1981] PNGLR 81
Danny Sunu v The State [1984] PNGLR 305
Evertz v The State [1979] PNGLR 174
John Anis Pok v The State (1983) SC253
Mark Bob v The State (2005) SC808
Schubert v The State (1979) PNGLR 66

Counsels:

Applicant In-person
C. Sambua, for the State/Respondent

28 July, 2010

1. BY THE COURT: The applicant, Camillus Parang was presented before Justice Lay at the Kokopo National Court charged with four counts of indecent act directed at a child under the age of 16 years contrary to s.229(1) the Criminal Code (Sexual Offences and Crimes against the Children) Act, 2002 (the Code as amended). He was further charged with one count of sexual penetration without consent (rape) under s.347 (1)(2) of the Code as amended. On 20th November, 2006 following a trial on his plea of not guilty, the National Court convicted him on one count only of indecent act and on the count of rape. For the indecent act, the Court sentenced Camillus Parang to four years and for the rape conviction, he was sentenced to ten years imprisonment. The sentences were ordered to run concurrently.

2. In this application, Camillus Parang applies for review of his conviction only. He does not contest his sentence.

Brief Facts supporting the convictions and sentence

3. The Applicant was head teacher at Rakunai Primary School in 2003. Between the months of April and October, he summoned the female victim student into his Office on several occasions under the auspices of conducting sex education lessons. On each occasion he would ask her to remove her clothes. In respect of the indecent act charge, whilst teaching the victim to masturbate, he touched her breasts and vagina with his fingers.

4. The rape conviction was founded on the same set of facts that the prisoner actually placed his finger inside the victim's vagina. Both offences were proved to have been committed in breach of a relationship or position of trust, authority and dependency. The Applicant obtained the co-operation of the victim from the outset of the meeting by swearing her to secrecy with respect to the meetings, to the extent of having her hold the Bible.

5. His explanation was that the victim had been raped and young persons who had gone through that experience become insecure, permissive and sometimes careless in their sexual behaviour. He was therefore, instructing her on the option of masturbation as a way of relieving or satisfying her sexual urges without the risk of pregnancy, disease etc., and not completing school as a result.

Amended Grounds of " " Appeal" "

6. In his amended grounds to this application, the Applicant asserted that:

(i) The National Court Judge erred in both facts and law by relying on the evidence of the prosecutrix wherein the prosecutrix evidence to the police and eventually in Court were inconsistent.

(ii) The Court erred both in fact and law when it relied on the evidence of the prosecutor's witness, Regina Mansui whose evidence was unreliable because she had an interest in the outcome of the case.

The Case – Whether an Appeal or an Application for Judicial Review

7. Camillus Parang conducted his case before this Court as a normal appeal. It is not. He lost his right to appeal or to seek leave to appeal when he did not comply with s.29 of the Supreme Court Act, Chapter 37 to appeal the National Court decision within 40 days after the date of conviction. He was convicted on 20th and sentenced on 23rd November, 2006 and some 4 months later on 12 April, 2007 he filed what purported to be a Notice of Appeal. Two years later, he filed an Amendment to the purported Notice of Appeal. The initial Notice of Appeal had by then been converted, quite appropriately so, to an application for Judicial Review under reference, SC Review No. 29 of 2007 (p.5 of the Review Book).

The law on Applications for Judicial Review

8. The principles of law governing Judicial Review applications are relevant and pertinent to the hearing in this proceeding. More specifically, the principles applicable to a criminal case have been settled in the land mark case of Avia Aihi v. The State (2) [1981] PNGLR 81, the effect of which was summarized in Application by Jeffery Balakau (1996) unreported, SC 529, 25th October 1996 in this way

" A person affected or aggrieved by the final decision of the National Court and lacking now any statutory right to have that decision reviewed, may nevertheless make application to the Supreme Court to exercise its inherent and discretionary power to review that judicial decision under s.155(2)(b) of the Constitution. This inherent or right in such an aggrieved applicant is the same right which enabled Avia Aihi to make application for leave to apply for review by the Supreme Court" .

9. The case of Avia Aihi v. The State established that, the Supreme Court is vested absolute discretion under s.155(2)(b) of the Constitution to review all judicial acts of the National Court even that in which the applicant had lost all statutory right to appeal. The Applicant must however show cogent and convincing reasons and exceptional circumstances where some substantial injustice is manifest or the case is of special gravity, before leave can be granted in his favour.

10. These principles were followed and applied in the Criminal Appeal case of Danny Sunu v. The State [1984] PNGLR 305 and a host of cases that have since followed. In Danny Sunu v. The State Pratt and McDermott JJ, stated in relation to " cogent and convincing reasons" at 307:

" We agree with the approval of Kapi, J in Avia Aihi v. the State (2) at p.61, that the merits of the application or perhaps rather more specifically, the merits of the case to be argued must form part of the " " cogent and convincing" " reasons. After all, if the matter, the subject of the application has no merit whatsoever, it is impossible to see how there could be any cogent or convincing reasons for granting a Review. Therefore, the first thing to be decided by this Court, is whether the applicants have made out sufficient reasons and exceptional circumstances for the Court to grant a hearing...."

11. It is clear from the authoritative cases of Avia Aihi v The State and Danny Sunu v The State that, the review provisions in s. 155 (2)(b) of the Constitution are not to be invoked unless an applicant demonstrates sufficient reasons for allowing the appeal time to lapse without exercising his or her right of appeal. It must be shown that exceptional circumstances exist to justify resort to the judicial review process under s. 155 (2)(b). He or she must further demonstrate the merits of the grounds to be argued because, " .... if the matter, the subject of the application has no merit whatsoever, it is impossible to see how there could be any cogent or convincing reasons for granting a Review." (Danny Sunu v The State).

Application of Judicial Review Principles - Issue of Delay

12. These proceedings were initially commenced by a Notice of Appeal. The grounds drafted in four paragraphs of disjointed general statements did not say in what respect and how the trial Judge erred in law and on the facts. They were so vague and insufficient to constitute a competent Notice of Appeal hence; the appeal would have not survived prosecution.

13. However, those defective and incompetent grounds are purportedly cured by subsequent filing of amendment to the grounds of appeal. The amending grounds appear a little more structured and precise. It clearly alleged where and how the court fell into error or erroneously arrived at its conclusion. In the main, the amending grounds alleged the trial Judge committed errors in law and on the facts when he relied on the unreliable testimonies of the prosecutrix and her principal witness.

14. The difficulty with the new grounds is that, it is belated. But more significantly, it differed from the initial grounds to such extent that, it amounted to pleading of fresh grounds of appeal. Fresh grounds that are aptly described as a new notice of appeal will be deemed incompetent because of s.29 (2) of the Supreme Court Act. Sections 29 reads:

" 29. Time for appealing under Division 3.

(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."

15. These provisions limit the appeal time to 40 days from the date of conviction. The date of conviction includes the date on which sentence is imposed: Mark Bob v The State (2005) SC 808. Any Amendment to the appeal grounds must be made within 40 days except in special circumstances where the Court has discretion to allow addition of new grounds. The question of amending grounds of appeal has been settled in unequivocal terms in a joint judgment of Prentice, C.J. and Andrew, J. in Schubert v. The State (1979) PNGLR 66 where the learned judges stated at p. 68:

" We should like at the outset to voice our disapproval of this growing practice of seeking to add new grounds at the eleventh hour. Any departure from the grounds of appeal stated in the notice of appeal is and will only be allowed in exceptional cases, and such allowance is in the discretion of the court. We think it is also timely to draw attention to the fact that a fresh ground of appeal may well be regarded as being more than an amendment of existing grounds and amount to a new notice of appeal in which case it will invariably be struck down by section 27 of the Supreme Court Act 1975."

16. Section 27 referred to in the judgment now appears as s. 29 which we have set out earlier. With respect, we can only echo those words in Shubert v. The State. The Supreme Court has no power to grant special leave to appeal after refusing leave to appeal nor to extend the 40 days for appeal by application made outside the 40 days: Avia Aihi v The State (No.1) [1981] PNGLR 1; Application by Goiya [1991] PNGLR 170.

17. In this case, the new grounds were filed on 24/11/08 (2 years after conviction and two days before the matter was set down for hearing). The amendment was filed at the eleventh hour with the aid of an unnamed source, possibly someone with a legal background. The applicant's private source had clearly misconceived and misled him into filing the amended grounds. The pleading of completely new grounds stands to be struck down by s. 29 of the Supreme Court Act 1975.

18. The applicant is however saved by the conversion of the Notice of Appeal to an application for Judicial Review. In that respect, the strict compliance with the time limitation to appeal is avoided. An applicant for Judicial Review must however, show cogent and convincing reasons for allowing the appeal to lapse without excising his or her right to appeal. It must be further shown that, exceptional circumstances exist where some substantial injustice is manifest or the case is of special gravity, before leave can be granted in his favour.

19. There were incontestable inordinate delays in the filing of both the Notice of Appeal and the amendment to the grounds of appeal. The applicant who prosecuted his own application before this Court filed no affidavit nor did he adduce evidence explaining the delays. However in Court, he submitted that the delays were substantially the fault of his lawyers. He prepared and sent his Notice of Appeal to the lawyers within the statutory time limitation but the lawyers did nothing to progress his instructions.

20. We note from the file, two hand-written letters from the Applicant both dated 14/4/07 which purported to explain the cause of delay. In the letter to the Registrar, Supreme Court in Waigani, the Applicant set out the chronology of events from 23/11/06 being the date of his sentence to the date of the letter. It does not show anything out of the ordinary to support cogent and convincing reasons or exceptional circumstances for the delay. The other letter addressed to the National Court Registry in Kokopo tended to shift the blame to his lawyer, a Philip Kaluwin of the Public Solicitor''s Office for failing to attend to his Appeal Notice.

21. From those two letters, it is clear, unlike Avia Aihi, an uninformed villager in the case of Avia Aihi v The State; the applicant was well informed of his right to appeal. He was advised of that right from day one. Mr. Kaluwin had advised him on the same date of conviction to appeal to the Supreme Court. So, on 24th November, 2006 the day after his sentence, he filled out a pro-forma Prisoner Appeal Form available from the CIS and sent it to the Office of the Public Solicitor in Kokopo, ignoring advice from the CIS Officer who was then assisting him, to forward his Notice of Appeal direct to the Supreme Court Registry in Waigani.

22. It is not clear if the Public Solicitor had then approved him legal aid. However, if Mr Kaluwin had advised him to lodge his own appeal, it can be safely assumed, assistance was either not available or the Public Solicitor had not considered representation. Either way, the applicant had erroneously assumed he had the Public Solicitor''s representation.

23. The applicant cannot blame Mr. Kaluwin for his own misguided view on legal aid. Besides, there is no telling if the Office of the Public Solicitor would assist him because the incumbent Office-Holder has seemingly lost touch with the core function of his Constitutional Office to extend legal assistance to Supreme Court appeals. The apparent lack of commitment by the Public Solicitor to assist those entitled to legal aid even in meritorious prisoner appeals not only questions the integrity of the office, but it makes it most unlikely that the applicant would get legal aid representation.

24. Even if legal assistance was available to the prisoner and the cause for delay rested on incompetence of lawyers from the Public Solicitor''s Office, it will make no difference to the excessive delay in appealing because professional negligence has long been held by this Court to be inexcusable. Thus, negligence by a lawyer will not form part of " cogent and convincing reasons" or " special circumstances." An aggrieved person is however not left without remedy. He has the option to sue for professional negligence.

25. But for the purpose of this application, there is no explanation whatsoever for the belated filing of the amendment or why leave should be granted to argue those grounds. The applicant has merely shifted the blame to his original lawyers. That is no excuse as we have highlighted. The applicant has not demonstrated sufficient reasons for allowing the appeal time to lapse without exercising his right of appeal. His application stands dismissed on that basis. It remains whether he can demonstrate on the grounds to be argued, " exceptional circumstances" or " some substantial injustice is manifest" or the case is of " special gravity."

Application of Judicial Review Principles - Issue of Merit of Case

26. The applicant says his conviction is unsafe due to unreliable evidence of the complainant and her witness, Regina Mansui. He raised wide-ranging issues pertaining largely to procedural aspects of his trial going as far back as the committal proceedings, to the evidence and factual findings by the trial judge. He knit-picked procedural and evidentiary aspects of his trial to show possible errors the trial judge may have fallen into.

27. His first main contention was however against the reliability of the complainant. He argued that she was untruthful and cannot be trusted after getting mixed-up in her recollection of relevant dates and for being inconsistent in her statement to the Police and her oral testimony.

28. The trial judge dealt with that issue and acknowledged that there were some difficulty in the manner the complainant gave her evidence. As to her reliability, his Honour concluded at p. 184 of the Review Book:

" I do not find this form of truncation of evidence unusual or damaging to the credibility of the witness. In my experience it has far more to do with the pressures being experienced by the witness in coming into the witness box than it has to do with the truthfulness of the witness. I accept RK is a witness of truth. I find she had no reason to lie, save for the Munsi conspiracy theory I comment on below.

I believe RK in evidence because the main thrust of her evidence has been consistent in her report to Mrs. Munsi, the police, her mother, the school inspector and in this court. The repetitions are not corroboration, which is not required, but demonstrate consistency with respect to the main allegations."

29. His next major contention is a conspiracy theory that Mrs. Munsi, had a vested interest in the case to tell lies and that the witness had assisted the complainant in concocting a story to remove him from his position at the school. He also alleged inconsistencies in her evidence. The trial judge said of the evidence and consistency of Mrs. Munsi at p. 184:

" I consider the hypothesis that RK is part of a conspiracy with Mr. and Mrs. Munsi to have the accused removed from Rakunai Primary School highly fanciful and not borne out by any of the evidence. The evidence takes it no further than being a possibility. Nothing in the evidence raises the possibility to a probability.

I am convinced Mrs. Munsi acted in the interest of the pupils of the school and promptly as soon as she had a report from RK. The rumors of mock trials in rehearsal for this trial remain that, rumors. There is not a shred of evidence. The manner in which RK and Mrs. Munsi gave evidence did not in any way suggest rehearsal" .

30. The Appellant also gave evidence. His evidence and demeanor was assessed by the trial judge at p. 185 of the Review Book as follows:

" The accuser's explanations of what he was doing seem to me to indicate he was applying psychological profiles and remedies he was far from qualified to do and which are not the role of a teacher. He placed himself in a position in which he could be very easily compromised and I believe that he did in fact compromise himself with his pupil. His admitted behavior was very odd for a man of his years of experience. That a man of over 50 years of age with over 25 years experience in the teaching profession could not see the dangers of advocating sexual practices to a 15 year old female in a locked office suggest a man who has lost touch with all that those years of experience should have taught him. Further evidence of this is the failure of the accused to take any action in relation to the disclosure by RK of allegations against her step father and step brother. At the very least one would expect a head teacher to have discussions with RK's mother to ensure she knew what options were open to her in the interests of her child. I do not believe the accuser's version of events.

The Education Department ought to have protocols in place which warn against male teachers placing themselves in the position in which the accused placed himself. If they exist they should have been brought to the attention of the Court.

However that does not detract from my view that there is no reasonable doubt that the accused is guilty of the charge of sexual penetration without consent by penetration of the victim's vagina with his fingers and of one count of an indecent act directed at a child by reason of the actual touching of the private parts of the child" .

31. We have reviewed his Honour's sound evaluation of the case and the conclusions reached in the light of settled principles that, unless the trial judge has fundamentally misconceived the evidence, the Appeal Court will not disturb the trial judge's findings of fact and findings as to credibility: Evertz v. The State [1979] PNGLR 174.

32. In John Anis Pok v The State (1983) SC 253, the Supreme Court also cautioned that, in deciding the merits of the case, the decision of the trial Judge with all the findings contained in it has to be given proper weight. A Supreme Court Judge is not free to substitute his or her own findings of facts unless consideration has been given to the whole of the decision of the National Court.

33. We are satisfied that the applicant's contentions in this application are without substance. It is clear from the evidence and the decision of the trial judge that his Honour had carefully and meticulously assessed the whole of the evidence in an objective manner. We cannot find any hint or support for the contention that his Honour had misunderstood or misconceived the evidence. The trial Judge had made findings and reached conclusions that are on the whole, supported by evidence. The proposed amended grounds to be argued are indisputably unmeritorious.

34. In the upshot, there are no convincing or cogent reasons for the delay in filing an appeal out of time. The grounds proposed to be argued also lacked any merit. The applicant has not made out exceptional case or circumstances where some substantial injustice is manifest or the case is of special gravity to justify resort to the Judicial Review process under s. 155 (2)(b). We are not persuaded to grant the applicant leave for judicial review.

ORDER OF THE COURT

35. The Orders of the Court are that:

(i) Leave for Judicial Review application is refused.

(ii) Conviction and Sentence of the National Court is affirmed.

________________________________________
The Prisoner in Person
Public Prosecutor: Lawyer for the Defendant/Respondent