Gum v Independent State of Papua New Guinea [2020] PGSC 152; SC2060 (21 December 2020)

SC2060

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV 65 OF 2020

IN THE MATTER OF AN APPLICATION PURSUANT
TO CONSTITUTION, SECTION 155(2)(b)
BETWEEN:
BENEDICT GUM
Applicant

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Respondent

Waigani: Hartshorn J,
2020: 8^th & 21^st December

SUPREME COURT REVIEW – practice and procedure - Application for leave to apply for review pursuant to s.155(2)(b) Constitution

Cases Cited:
Avia Aihi v. The State (No. 2) [1982] PNGLR 44
David Toll v. The State (1989) SC378
Application by Anderson Agiru (2002) SC686
Application by Herman Leahy (2006) SC855
Application by John Maddison and Bank of South Pacific Ltd (2009) SC984 Alphonse Tay v. Newcombe Gerau (2011) SC1097
Benjamin Sengi v. The State (2015) SC1425
Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568

Counsel:

Ms. A. Kimbu, for the Applicant
Ms. T. Kametan, for the Respondent
21^st December 2020

1. HARTSHORN J: This is a decision on a contested application for leave to review a decision of the National Court which was delivered and pronounced on 23^rd November 2018 (Decision).

Background

2. Pursuant to the Decision the National Court ordered amongst others, that the applicant, Benedict Gum was found guilty of the charge of misappropriation of the sum of K350,000, being monies belonging to a Mr. Stanis Talu.

Applicant’s submissions

3. The applicant submits that leave should be granted as:

a) he was informed by his former lawyers at the material time that he could not appeal the Decision as there was evidence that he had received K350,000 rom Stanis Talu to purchase a property for Stanis Talu and he had not done so;

b) upon hearing an audio recording of the hearing on 23^rd November 2018, the finding of guilt was contrary to the evidence and the charge;

c) the applicant at the material time operated a company called Springs Real Estate Ltd. The applicant and that company were both in the real estate business and the buying and selling of properties.

Respondent’s submissions

4. The respondent submits that it is not in the interests of justice that leave to review be granted as amongst others, there is no date given as to when the applicant was purportedly told that he could not appeal. Also, it is prejudicial to the complainant.

Law

5. Leave is required as the right of appeal was not exercised in the time permitted by statute: Order 5(1) Supreme Court Rules and Avia Aihi v. The State (No. 2) [1982] PNGLR 44; Application by Anderson Agiru (2002) SC686; Application by Herman Leahy (2006) SC855; Application by John Maddison and Bank of South Pacific Ltd (2009) SC984; Alphonse Tay v. Newcombe Gerau (2011) SC1097 and Benjamin Sengi v. The State (2015) SC1425.

6. Where a right of appeal has not been exercised, three criteria must be satisfied before leave can be granted (I refer to the cases cited above). These are:

a) it is in the interests of justice to grant leave; and

b) there are cogent and convincing reasons and exceptional circumstances, eg. some substantial injustice is manifest or the case is of special gravity; and

c) there are clear legal grounds meriting a review of the decision.
7. Recently in Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568, Injia CJ (as he then was) said at [5]:

"The criteria for grant of leave for review is settled in various decisions of this Court: Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120, State v Toka Enterprises Ltd (2013) SC1266, Luke Marano v Jack Nouari (2013) SC 1307. The applicant must have standing to bring the application. If the applicant is a party in the proceedings of the court below from which the judgment under review was given, the question of standing does not arise. The applicant must offer a reasonable explanation as to why an appeal against the judgment was not filed within time. The application for leave for review must not be delayed. If there has been a delay in lodging the application, a reasonable explanation must be given. The application must be prosecuted promptly. If there has been a delay in prosecuting the application, a reasonable explanation must be offered. If the court finds that there has been a delay and no reasonable explanation has been offered for the delay in lodging and prosecuting the application, the court may, nonetheless, grant leave for review if there are exceptional circumstances showing manifestation of substantial injustice that give rise to serious issues of facts or law that warrants a full review of the judgment. It is also necessary for the applicant to demonstrate that it is in the interest of justice to warrant a review of the judgment."

Consideration

8. In determining whether there are cogent and convincing reasons, the first consideration is the reason for not filing an appeal within time. The applicant submits and gives evidence to the effect that he had enquired with his lawyers about appealing the Decision. He was informed by his former lawyers that he could not appeal as there was evidence that he had received K350,000 from Stanis Talu to purchase land but that he had not done so. The appellant submits that he relied upon his lawyer’s advice and did not appeal.

9. In answer to questions from the court, counsel for the applicant submitted that by the applicant’s statement that he was advised that he could not appeal, the applicant is stating that he could not appeal because of there being a lack of or no merits or chance of the appeal succeeding, as distinct from the applicant being advised that he could not appeal per se. I am satisfied that this is correct. The appellant has deposed that he enquired about the possibility of appealing. To my mind, this is indicative of the appellant knowing that he was entitled to appeal. The applicant made a choice whether to appeal. After receiving his lawyer’s advice, he decided not to appeal.

10. The decision not to appeal was made and as a consequence, a notice of appeal was not filed. To my mind this is a reasonable explanation for why a notice of appeal was not filed but in the context of an application for leave to review it is not a cogent and convincing reason why notice of appeal was not filed in time.

11. The next consideration is whether there has been a delay in filing the application for leave to review and if so has a reasonable explanation for this been given. The application for leave to review was filed on 19^th November 2020, almost 2 years after the Decision. To put that period of time into perspective, that is more than 18 statutory periods of time within which an appeal must be filed. This court in Application by John Maddison and Bank of South Pacific Ltd (supra), in refusing to grant leave to review under s. 155(2)(b) Constitution, considered a period of 9 months to be an inordinate and inexcusable delay. The delay in Maddison (supra) is insignificant in comparison with the delay in this case. Clearly, the delay is inordinate.

12. As to the reason given for the delay, in essence, that the applicant only received different legal advice from a different lawyer, of chances of success, after this period of time, I am not satisfied that is a cogent and convincing reason for the delay in filing an application for leave to review.

13. Having found that reasonable explanations have not been given for not filing an appeal within time and for the period of time taken in filing the application for leave as occurred in Kalu's case (supra), this court may nevertheless consider whether there, "are exceptional circumstances showing a manifestation of substantial injustice that gives rise to serious issues of fact or law that warrants a full review of a judgment": Kalu's case (supra) at [5]; and further, whether it is in the interests of justice that a review of the judgment is warranted.

14. The first factor in this instance, in my view, is to consider whether the applicant receiving different legal advice from a different lawyer is an exceptional circumstance.

15. In David Toll v. The State (1989) SC378, Bredmeyer J in considering the review jurisdiction under s. 155(2)(b) Constitution said:

“In the criminal cases the Supreme Court has shown special solicitude for the applicant in custody and without ready access to a suitable lawyer.”

16. In this instance, the applicant did have ready access to a lawyer. He enquired about appealing and decided not to after receiving legal advice. I am not satisfied that the applicant receiving different legal advice from a different lawyer as to his chance of success, a considerable time after his conviction, constitutes an exceptional circumstance.

17. As to the merits of the applicant’s case, in submissions made by counsel for the applicant, it is submitted amongst others, that the applicant has shown an arguable case in respect of his proposed grounds of ‘appeal’, if leave is granted. That the applicant has an arguable case does not meet the requisite standard in an application for leave to review.

18. Following a consideration of the documentation before the court and the submissions made, I am not satisfied that in this instance there are any exceptional circumstances or the specific exceptional circumstances as described by Injia CJ (as he then was) in Kalu's case (supra). This is not a test case and no particular circumstances exist which require this court's determination on a new or novel point of law.

19. I am also satisfied that it has not been shown to be in the interests of justice that leave to review be granted. More specifically, I am not satisfied that it is in the interests of justice that a person who has been convicted of a crime and has decided not to appeal after receiving legal advice should be entitled to have his conviction reviewed, after receiving different legal advice, albeit from a different lawyer, almost 2 years after his conviction. Consequently, for the above reasons, this application is dismissed.

Orders

20. It is ordered that:

a) This application for leave to review is dismissed.
__________________________________________________________________
Kimbu & Associates: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent