Barak v Independent State of Papua New Guinea [2020] PGSC 36; SC1949 (26 May 2020)

SC1949

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO.105 OF 2018

REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b)

BETWEEN:
CLETUS BARAK
Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Wewak: Manuhu, J, David, J, &Makail, J
2020: 25^th & 26^th May

CRIMINAL LAW – application for leave to review and review under Constitution, Section 155(2)(b) – three criteria to be satisfied–plea of guilty to murder –Criminal Code, Section 229D(1) and (6) – head sentence of 19 years –all three criteria unsatisfied - leave refused–conviction and sentence of 19years affirmed.

Counsel:
Ramsey Pariwa with Alex Kana, for the Applicant
Camillus Sambua with Raymond Galama, for the Respondent

Cases Cited:
Avia Aihi v The State (No.1) (1981) PNGLR 81
Avia Aihi v The State (No.2) (1982) PNGLR 44
Danny Sunu v The State [1984] PNGLR 305
The State v Colbert [1988] PNGLR 138
Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437
Mark Bob v The State (2005) SC808
Review Pursuant to Constitution, Section 155(2)(b), Application by Herman Joseph Leahy (2006) SC855
Benjamin Sengi v The State (2015) SC1425

JUDGMENT

26^th May, 2020

1. BY THE COURT: INTRODUCTION: The applicant, Cletus Barak of Kanganamun village, Angoram District, East Sepik Province was indicted with one count of persistent sexual abuse of a child under the age of 16 years, then 15 years contrary to Section 229D(1) and (6) of the Criminal Code. It was alleged that the applicant sexually penetrated the vagina of the victim with his penis on one occasion; on more than four occasions sexually touched the victim’s vagina and breasts; and at the time, there was an existing relationship of trust, authority and dependency between the applicant and the victim as the victim was the applicant’s step daughter. He appeared before the National Court constituted at Angoram on 22 November 2017 where he was convicted of the charge upon pleading guilty. On 20July 2018, the National Court imposed a sentence of 19 years imprisonment in hard labour.

BRIEF FACTS

2. The applicant pleaded guilty to the following facts. The applicant married the victim’s mother in 2009 when the victim was 7 years old. The applicant looked after the victim, his step daughter, like his own child along with three of his own children borne by the victim’s mother. On several unspecified dates between 2015 and 2016 when the victim was 15 years old, the applicant sexually penetrated the victim by inserting his penis into her vagina and having sexual intercourse with her and also during the same period, the applicant sexually touched the victim’s sexual parts on more than one occasion.

APPLICATION FOR LEAVE TO REVIEW

3. Aggrieved by the sentence of the National Court, the applicant filed an Application for Leave to Review dated 10 December 2018.
   
4. The applicant’s grounds of review that are set out in the Application for Leave are:
   
   1. Not enough evidence.
   2. The witness did not testify before the Court.
   3. No medical report being provided to the Court as proof of evidence.
   4. The complaint was not made by the complainant.
      
5. In the Application for Leave to Review, in answering the question posed in the form; do you wish the Supreme Court to review your conviction or sentence, the applicant stated that the sentence was too excessive as there was not enough evidence to warrant the kind of sentence imposed.
   
6. In support of his application, the applicant relies on his affidavit sworn on 25 May 2020 and handed up to the Court at the hearing.
   
7. The respondent contests both the application for leave and substantive review.
   
8. At the hearing, both parties relied on their written extracts of submissions and amplified them with their respective oral submissions. We have considered the submissions.
   

LEGAL PRINCIPLES ON REVIEW

9. The principles of law relating to how the inherent and discretionary jurisdiction of the Supreme Court is exercised under Section 155(2)(b) of the Constitution have been clearly enunciated, developed and applied by the Supreme Court in many cases since Avia Aihi v The State(No.1) (1981)PNGLR 81: see also Avia Aihi v The State (No.2) (1982) PNGLR 44; Danny Sunu v The State [1984] PNGLR 305; The State v Colbert [1988] PNGLR 138; Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437; Review Pursuant to Constitution, Section 155(2)(b), Application by Herman Joseph Leahy (2006) SC855; and Benjamin Sengi v The State (2015) SC1425.

10. In Avia Aihi v The State (No.1)(1981)PNGLR 81, at page 87, the then Chief Justice, the late Sir Buri Kidu explained the source, nature, and extent of this inherent jurisdiction under Section 155 (2)(b) in this way:

“We cannot cut down the powers of this court if the Constitution has invested it with extra jurisdiction or power. If this court has been granted inherent powers by the people through the Constitution, we must be bold in stating the fact. The inherent power of the Supreme Court to review all judicial acts of the National Court emanates from the people through the Constitution. What the nature or extent of this power might be, it does not derive from any statute or the common law or any prerogative powers of persons or bodies outside Papua New Guinea.”

11. At page 88, His Honour continued:

“What s.155(2)(b) gives is a power. This is obvious from s.162 of the Constitution. The National Court’s “inherent power to review any exercise of judicial authority” (s.155 (3)(a)) is subject to removal or restriction (s.155 (3) (e)) whereas the Supreme Court’s inherent power under s.155(2) (b) is not.

If one applies the dictates of the Constitution – that is “Each Constitutional Law is intended to be read as a whole” and “All provisions of, and all words, expressions and propositions in a Constitutional Law shall be given their fair and liberal meaning” (Sch1.5) - then s.155(2)(b) must mean more than being descriptive of the nature of the Supreme Court. It cannot and should not be assumed that the concept of inherent power to review in s.155 is necessarily what was taken to be the case before 16^th September, 1975. The common law has no application in post-Independence Papua New Guinea if it is in conflict with statutes and the Constitution. The powers and jurisdiction of the Supreme Court derive not from any statute or the common law but from s.162 of the Constitution. The common law should not and cannot be used to cut down powers given to the Supreme Court by the Constitution. As a creature of the Constitution, it cannot be otherwise.

I concur with the Deputy Chief Justice that this Court has discretionary power given to it by s.155(2)(b) of the Constitution and the applicant should be required to convince the court she should have this discretion exercised in her favour to allow her leave to apply for her sentence to be reviewed.”

12. There are three types of cases where judicial review has been exercised under Constitution, Section 155 (2)(b) and these are:

1. Where parties have allowed a statutory right of appeal to expire.

2. Where right of appeal is prohibited or limited by law.

3. Where there is no other way of going to the Supreme Court.

13. An applicant in an application for review must satisfy three criteria in order for the Supreme Court to exercise its unfettered discretion as to whether to grant leave to review or not. These are:

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

2. there are clear legal grounds which would merit a review of the decision; and

3. it is in the interests of justice to grant leave.

14. In deciding whether there are cogent and convincing reasons, two other considerations are relevant and these are; first, the reasons for not filing an appeal within time; and second, the merits of the case sought to be argued.

15. The 40-day appeal period runs immediately after the date of sentence: Mark Bob v The State (2005) SC808. In the present case, the applicant allowed his statutory right of appeal to expire on 30August 2018. The Application for Leave to Review was lodged at the Supreme Court Registry on 18 December 2018. It was filed about three months and eighteen days after the expiration of the statutory 40-day appeal period.

16. Therefore, the invocation of the discretionary and inherent jurisdiction of the Supreme Court under Constitution, Section 155(2)(b) is the only option available to the applicant to challenge the decision of the National Court on sentence.

17. We will now apply the three criteria in the following manner.

APPLICATION OF PRINCIPLES

Has the applicant provided any cogent and convincing reasons and exceptional circumstances?

18. Mr. Pariwa for the applicant, relying on the applicant’s affidavit, contends that the applicant has given a reasonable explanation for the delay in not filing his appeal within the statutory 40-day appeal period. He argued that as a layperson, the applicant took some time for him to make up his mind as to whether to appeal the sentence or not as he was not sure of what to appeal about and when he did, the appeal period had expired. Consequently, with the assistance of Correctional Officers, the Application for Leave to Review was filed.

19. In addition, Mr Pariwa contended that the case sought to be argued had merits in that the National Court committed an identifiable error when in exercising its discretion to impose a sentence of 19 years, the National Court considered and placed weight on a mistaken fact that the persistent sexual abuse occurred for 9 years started when the complainant was 7 years old.

20. Mr. Sambua for the respondent contends that the applicant has failed to demonstrate in his affidavit any good reason for not complying with the 40-day statutory appeal period. He also stated that the applicant has failed to show that the case sought to be argued has merits.

21. A close examination of the Application for Leave to Review shows that it might be incompetent for want of form given it states that the crime for which the applicant was convicted and sentenced was for sexual penetration. That is not the case as the applicant was convicted and sentenced on a count of persistent sexual abuse of a child. The respondent has not raised any objection to the competency of the Application for Leave to Review so we will not press the issue.

22. As to the question of delay, the Application for Leave to Review was filed about three months and eighteen days after the expiration of the statutory 40-day appeal period. The length of the delay may not be inordinate or insignificant, but has the applicant provided a reasonable reason why such a delay has occurred? We are not satisfied that he has. He was represented by the Public Solicitor through Mr. Julius Javapro in the National Court. We do not buy the excuse provided by the applicant that as a layperson, he took some time for him to make up his mind as to whether to appeal the sentence or not as he was not sure of what to appeal about and when he did, the appeal period had expired. If he had any doubt as to how to go about filing an appeal or whether there was any good basis to mount a challenge to the sentence imposed, his lawyer was the person to contact for advice. A prudent lawyer would usually give advice on the right to appeal after sentence. There is no evidence from Mr. Javapro on whether or not he did that. The applicant has not said under oath that his lawyer did not advice him about his right to appeal and the time within which to file the appeal. The applicant has provided a lame excuse. We accept Mr. Sambua’s contention that the applicant has not provided any good reason for not complying with the 40-day statutory appeal period.

23. As to whether the applicant has a meritorious case to be argued, the grounds of review are too general, vague or ambiguous and they do not specify the alleged error committed by the National Court to show why the sentence was alleged to be too excessive. Given that, there is no foundation in the grounds pleaded to assert that the sentence was too excessive as the National Court relied on a mistaken fact. We accept Mr. Sambua’s submission that the applicant has failed to show that the case sought to be argued has merits.

24. The upshot of this is that the applicant has failed to provide any cogent and convincing reasons and exceptional circumstances.

Are there clear legal grounds which would merit a review of the decision?

25. It suffices to say that, going by our reasons above as to the merits of the case, we answer this question in the negative.

Is it in the interests of justice to grant leave?

26. We adopt our reasons for the first and second considerations in determining this consideration in the negative.

CONCLUSION

27. For all these reasons, we will refuse leave and dismiss the applicant’s substantive application for review.

ORDERS

28. The formal orders of the Court are:
    1. The applicant’s application for leave to review the sentence of the National Court given on 20August 2015 is refused.
2. The applicant’s substantive application to review the sentence of the National Court given on 20 August 2018 is dismissed.
3. The conviction and sentence of the National Court are affirmed.

_________________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent