Wailapu v State [2021] PGSC 102; SC2170 (2 November 2021)

SC2170

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 45 OF 2016

BETWEEN:
PAUL WAILAPU
Applicant

AND:
THE STATE
Respondent

Waigani: Hartshorn J,
2021: 15^th October, 2^nd November

SUPREME COURT – 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
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
Sakai Saraga v. The State (2017) SC1592
Motor Vehicles Insurance Limited v. Opeta (2020) SC1954

Counsel

Applicant in person
Mr. P. Kaluwin, Public Prosecutor, for the Respondent

2^nd November, 2021

1. HARTSHORN J: This is a decision on a contested application for leave to review a judgment of the National Court (Judgment) pursuant to s. 155(2)(b) Constitution.

2. In the Judgment on 5^th May 2016, the applicant was convicted of the charge of murder pursuant to s. 300(1)(a) Criminal Code Act. 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; Benjamin Sengi v. The State (2015) SC1425; Sakai Saraga v. The State (2017) SC1592 and Motor Vehicles Insurance Limited v. Opeta (2020) SC1954.

3. 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.

4. 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

5. In determining whether there are cogent and convincing reasons, the first consideration is the reason for not filing an appeal within time. In this instance the applicant purportedly filed an appeal against his conviction on 2^nd September 2016. This was about 2 months 18 days after the time by which an appeal was required to be filed had expired. There is no evidence as to why an appeal was not filed within the requisite 40-day period and so a reasonable explanation for not filing an appeal within time has not been given.

6. The next consideration is whether there has been a delay in filing the application for leave to review and if so whether a reasonable explanation for this has been given. The application for leave to review was not filed until 3^rd March 2021. The applicant deposes that his review was delayed due to his lawyer failing to pursue his case, that his lawyer was paid substantial legal fees and that his lawyer failed to produce a review book and to visit the applicant. Further, the Covid 19 pandemic has prevented the applicant from pursuing his case it is submitted.

7. There is a notice of appearance filed by Konjib and Associates, Lawyers in October 2017 and no evidence of any work being performed by those lawyers after July 2018. There is no evidence as to the delay that occurred from September 2016 to October 2017. Further, there is no evidence as to the delay that occurred from July 2018 to March 2021 which is a period of over 2 years six months. To put the total delay into perspective, the period of time that elapsed before the application for leave to review was filed is equivalent to about 43 sets of the statutory appeal period of 40 days. I am not satisfied that a reasonable explanation has been given for this delay. Covid 19 and the applicant’s lawyers dilatory conduct does not reasonably explain the delay of over 2 years 6 months from July 2018 and the overall delay of 4 years 8 months.

8. Having found that a reasonable explanation for not filing an appeal within time has not been given and that a reasonable explanation has not been given for the period of time taken for the leave application to be filed, 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.

9. In considering the merits of the case sought to be argued by the applicant, from a quick perusal of the proposed grounds of review, I am not satisfied that there is any merit in the arguments put forward. The allegation that the victim, the applicant’s spouse was attacked by witchcraft, cannot be considered seriously. There does not appear to be any merit in the grounds sought to be argued which were argued before Cannings J. in the Human Rights application to which the applicant refers. Those allegations were considered by Cannings J and were dismissed. Further, the allegations concerning the record of interview and the autopsy report were considered by the primary judge and in my view, lack merit.

10. In any event, 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.

11. I am also satisfied that it has not been shown to be and that it is not, in the interests of justice that leave to review be granted. Consequently, for the above reasons, this application is dismissed.

Orders

12. It is ordered that this application for leave to review is dismissed.
__________________________________________________________________
Applicant in person
Public Prosecutor: Lawyers for the Respondent