Yanduo v State [2021] PGSC 101; SC2183 (24 December 2021)

SC2183

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO 3 OF 2018

WESLEY YANDUO
Applicant

V

THE STATE
Respondent

Waigani: Cannings J
2021: 22^nd, 24^th December

SUPREME COURT – practice and procedure – application for amendment of proceedings – Supreme Court Rules Order 11, rule 11 – application to regard an application for review as an appeal.

The applicant applied under Order 11, r 11 of the Supreme Court Rules for an order to amend his proceedings. He wants his application for leave to seek review of his conviction for wilful murder deemed to be an appeal. He claims that soon after he was sentenced to death, he tried to lodge an appeal against conviction but the only form made available to him was an application for leave to seek review, so he filled out the form and it was lodged. The State did not oppose the application.

Held:

(1) Order 11, r 11 confers discretion on the Court or a Judge to order that “proceedings be amended”, and this includes power to order that an application for leave to seek review be treated, in an appropriate case, as an appeal.

(2) In exercising the discretion, it is appropriate to take into account whether the application for leave to seek review was filed within the statutory appeal period and whether there is an adequate explanation for the wrong process being invoked and whether there is any prejudice to the opposing party.

(3) Here, the application was filed within the 40-day appeal period, a good explanation was provided by the applicant and there was no prejudice to the State. Therefore, the application was granted.

Cases Cited

The following cases are cited in the judgment:

Mark Bob v The State (2005) SC808
New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522
The State v Wesley Yanduo (2018) N7524
The State v Wesley Yanduo (2018) N7596

Counsel

J F Unua, for the Applicant
T Kametan, for the Respondent

24^th December, 2021

1. CANNINGS J: Wesley Yanduo is a prisoner on death row. He applies for amendment of these proceedings, SC Rev 103 of 2018, by which he challenges his conviction for the offence of wilful murder.

2. He wants to have his application for leave to seek review of his conviction deemed to be an appeal. He claims that soon after he was sentenced to death, he tried to lodge a notice of appeal but he was in custody and the only form made available to him was an application for leave to seek review, so he filled out the form and it was lodged, as that was the only way he could challenge his conviction.

3. Dates are important for the purposes of this application. There has been some confusion and I resolve it by making these findings:

23 October 2018 – date of conviction of the applicant by the National Court in Kimbe of the offence of wilful murder contrary to s 299(1) of the Criminal Code;

7 December 2018 – date of sentence: the applicant was sentenced to death;

18 December 2018 – date on which an application for leave to review pursuant to Order 5, rule 2 and in accordance with form 2 of the Supreme Court Rules, signed by the applicant, was lodged in the Supreme Court Registry.

4. The decisions of the National Court have been published as, in the case of the conviction The State v Wesley Yanduo (2018) N7524, and in the case of the sentence The State v Wesley Yanduo (2018) N7596. It is apparent from an examination of the transcript of the National Court proceedings that the dates of both published decisions are incorrect. The correct dates of the decisions are 23 October 2018 (conviction) and 7 December 2018 (sentence).

5. When the application for leave to review was lodged in the Supreme Court Registry at Waigani on 18 December 2018, it was accepted and processed, not surprisingly, as an application for leave to review, and given a SC Rev file reference. The matter has progressed very slowly since then, and it has been treated by the Court at all times as an application for leave to review. An application seeking leave to amend the grounds of the application of 18 December 2018 was filed on 12 October 2020. Leave to amend the grounds was granted by Hartshorn J on 6 September 2021, and on 2 December 2021 an amended application for leave to seek review was lodged.

6. However, it has not been heard. In fact, neither the original application for leave to seek review nor the amended application for leave to seek review have ever been heard. The applicant now does not want them heard. He has obtained the assistance of the Public Solicitor and a closer examination of the proceedings has resulted in the application now before me, which is to amend the proceedings, so that the application for leave to review lodged on 18 December 2018 would be regarded as an appeal, and the proceedings would proceed as an appeal. This would be advantageous to the applicant, as he would be able to appeal against his conviction as of right, rather than going through the process of applying for leave to seek review and running the risk of his application being unsuccessful.

APPLICATION UNDER ORDER 11, RULE 11 SUPREME COURT RULES

7. The application is made under Order 11, r 11 of the Supreme Court Rules, which provides:

The Court or a Judge may order that any person be added as a party to proceedings under these rules or that the proceedings be amended and may impose such conditions as appear just, and give all consequential directions.

DISCRETION

8. Order 11, r 11 confers discretion on the Court or a Judge to order that “proceedings be amended”, and this includes power to order that an application for leave to seek review be treated, in an appropriate case, as an appeal. I consider that, in exercising the discretion, it is appropriate to take into account:

• whether the application for leave to seek review was filed within the statutory appeal period; and
• whether there is an adequate explanation for the wrong process being invoked; and
• whether there is any prejudice to the opposing party.
  

9. The 40-day period for appealing against conviction, set by s 29 of the Supreme Court Act, begins to run on the date of sentence (Mark Bob v The State (2005) SC808). Here it was 7 December 2018. A notice of appeal had to be lodged by 16 January 2019. The fact that the Supreme Court may have been on “vacation” during some of that period has no effect on computation of the appeal period (New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522). The application for leave to seek review was lodged on 18 December 2018, well within the statutory appeal period.

10. The applicant has given evidence that he was not assisted by the National Court Registry at Kimbe when he indicated soon after he was sentenced, that he wished to appeal against his conviction. He was told to see the reception officer at Lakiemata Correctional Institution, where he was detained. He did that and was told that they had run out of appeal forms, so he was given a form for an application for leave to seek review. He filled it in and it was lodged with the Supreme Court Registry. His contention that he was really trying to appeal is borne out by his answers to the questions posed on the form. For example:

Question: Do you wish the Supreme Court to review your conviction or sentence?

Answer: Review conviction.

Question: Why did you not lodge a notice of appeal within 40 days of your sentence?

Answer: I appeal within 40 days.

Question: Why did you not apply to the Court until now?

Answer: I apply within 40 days.

Question: What do you want the Supreme Court to consider, your conviction or your sentence, or both?

Answer: Consider conviction.

11. The explanation for the wrong form (the application for leave to seek review) being lodged is genuine and satisfactory. As to any prejudice to the State, there is none. The application is not opposed. As all factors work in favour of the applicant, I will grant the application.

STATUTORY OBLIGATIONS OF REGISTRAR AND OFFICERS IN CHARGE OF CORRECTIONAL INSTITUTIONS

12. Before pronouncing the order, I make the following comments on statutory obligations of the Registrar and officers in charge of correctional institutions to assist prisoners once convicted or sentenced. Section 32 of the Supreme Court Act states:

(1) The Registrar shall furnish the necessary forms and instructions in relation to notices of appeal, or notices of application for leave to appeal, under this Act in criminal proceedings to—

(a) any person who asks for them; and

(b) officers of courts; and

(c) officers in charge of corrective institutions, rural lock-ups and police lock-ups; and

(d) other officers or persons as he thinks fit.

(2) The officer in charge of a corrective institution, rural lock-up or police lock-up shall cause—

(a) the forms and instructions referred to in Subsection (1) to be placed at the disposal of detainees desiring to appeal or to make any application under this Act; and

(b) any such notice given by a detainee in his custody to be forwarded on behalf of the detainee to the Registrar.

“The Registrar” in s 32 refers to the Registrar of the Supreme Court (per Act, s 1(1)). The Registrar must ensure that there is a system in place to ensure as a matter of course that correct appeal and review forms are available at every National Court Registry in the country and that the Assistant Registrar or other officer in charge of each Registry knows and understands and is able to discharge the obligations cast upon the Registrar by s 32(1). The Commissioner of the Correctional Service must do likewise regarding the OIC of every correctional institution in the country.

13. Prisoners have under s 37 of the Constitution the right to the full protection of the law. Section 32 of the Supreme Court Act is one way of affording them that right. It must be rigorously enforced. It was not in the present case and this has resulted in confusion and a long delay in the hearing of the appeal against conviction of a man facing a death sentence.

ORDER

1. The application to amend the proceedings SC Rev 103 of 2018 under Order 11, rule 11 of the Supreme Court Rules, filed 2 December 2021, is granted.
   
2. The application for leave to review filed 18 December 2018 is deemed to be a notice of appeal lodged under Order 7 of the Supreme Court Rules in accordance with the 40-day appeal period set by s 29(1) of the Supreme Court Act, and these proceedings are amended so that the proceedings are for all intents and purposes regarded as an appeal against conviction for wilful murder in CR No 627 of 2016 on 23 October 2018 at Kimbe.
   
3. The applicant shall hereafter be redesignated as “the appellant”.
   
4. The file reference SC Rev 103 of 2018 shall remain.
   
5. The related proceedings, SCRA No 86 of 2019, Wesley Yanduo v The State, are unaffected by this order, and those proceedings shall be prosecuted as an application for leave for review of sentence.
   
6. These proceedings shall return for further directions and the return of any pending application on 25 January 2022 at 9.30 am.

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