Kaya v State [2021] PGSC 20; SC2096 (30 April 2021)

SC2096

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 13 OF 2019

BETWEEN:
DAVID KAYA
Applicant

AND:
THE STATE
Respondent

Waigani: Batari J
2021: 28^th, 30^th April

APPEAL – APPLICATION FOR LEAVE TO RE-OPEN APPEAL AGAINST CONVICTION – SLIP RULE APPLICATION – principles applied – nature of application – leave – grounds for grant of – applicant must demonstrate that a glaring mistake, error or slip of law or fact on a critical issue is clearly manifest, and not arguable, on the face of the record – grounds amounting to reagitating or rehashing arguments dismissing the appeal against conviction – no slip disclosed – application for leave dismissed as disclosing no merit.

The applicant was convicted, following a joint trial with another, of misappropriating K5 million belonging to the State. The monies were paid by the State as compensation to the landowners of the East Awin area in Western Province for the compulsory acquisition of land following the resettlement of refugees from West Papua in the 1980s. The applicant, David Kaya, was pursuing compensation payments on behalf of the landowners as Chairman of the landowner company, Paiso Company Limited (Paiso). The Department of Treasury issued a cheque payable to Paiso in the sum of K5 million. On the instructions of David Kaya, the cheque was deposited to the trust account of his co-accused, Philip Kaman, a lawyer. Between 17^th October and 5^th November 2014 the monies were applied from the account for various purposes but none of the intended beneficiaries received the monies. The trial judge convicted the appellants of misappropriation and sentenced each of them to 15 years of imprisonment, 5 years of which was to be suspended upon restitution of the monies to the East Awin people.

The applicant appealed against conviction on a number of basis, including that the trial judge erred in finding that the property of K5 million belonged to the State. The Supreme Court dismissed the appeal on all grounds. An appeal against sentence was also dismissed.

Held:

(1) To be granted leave to make a slip rule application in relation to an order disposing of proceedings, an applicant must (a) seek leave within 21 days after the order disposing of the proceedings and (b) satisfy the Court that the slip rule application would have a strong chance of success: Agiru v Kaiabe (2015) SC1412.

(2) To establish a strong chance of success the application must demonstrate upon a quick perusal of the arguments and materials, a glaring mistake, error or slip of law or fact on a critical issue that is clearly manifest, and not arguable, on the face of the record: PNG Law Society v David Rickey Copper (2018), Injia CJ, unreported.

(3) The slip rule application failed to demonstrate a strong chance of success. There was no glaring mistake, no error or slip of law or fact on a critical issue manifest on the face of the record. The Court did not slip in dismissing the appeal against the trial judge’s finding that the property belonged to the State. The Court considered the arguments raised by the applicant challenging that finding and dismissed them, applying the well-established principle outlined in Brian Kindi Lawi v The State [1987] PNGLR 183. The application sought to rehash flawed arguments.

(4) The monies in the primary case were granted for the particular public purpose of compensating landowners in the East Awin area. Until the monies were distributed in accordance with that purpose they remained the property of the State, or monies in which the State had both a legal and equitable interest for the purpose of s. 383A(3)(d) of the Criminal Code: Wartoto v The State (2019) SC1834 applying Brian Kindi Lawi v The State [1987] PNGLR 183.

(5) Leave is refused.

Cases Cited:

Richard Dennis Wallbank and Jeanette Minifie v State [1994] PNGLR 78
MVIL (PNG) Trust v Yama Security Services Ltd (2009) SC1004
Andrew Trawen v Steven Kawa (2016) SC1063
Robert Saga v PNG Law Society (2010) SC1074
Michael Laimo v Steven Pirika Kama (2010) SC1063
Anderson Agiru v Aluago Alfred Kaiabe (2015) SC1412
PNG Law Society v David Rickey Copper (2018), unreported
The State v the Transferees (2016) SC1488
Re Nomination of Governor General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752
Re-election of Governor General (2010) SC1085
Brian Kindi Lawi v The State [1987] PNGLR 183

Counsel:

Mr. Yer Awi, for the Applicant
Mr. D. Mark with Mr. S. Kuku, for the Respondent

30^th April, 2021

1. BATARI J: On 19 October 2020, the Court (Batari, Mogish, Berrigan JJ) dismissed the appeal against misappropriation convictions and sentence by the applicant and his accomplice, Philip Kaman. Before this Court is a contested application seeking leave to make a “slip rule application” under Order 11 Rule 32(3) of the Supreme Court Rules 2012.

Case precedents on slip rule application and leave

2. The principles governing Slip Rule applications and powers in the Court to correct its own mistake have been settled in this jurisdiction since the seminal case of Richard Dennis Wallbank and Jeannette Minifie v State [1994] PNGLR 78. The case once finalized can only be re-opened in the clearest slip error as the Supreme Court cautioned in the following passage:
   • “We consider that the public interest in the finality of litigation must preclude all but the clearest “slip” error as a ground to re-open. To that extent, then, while the High Court of Australia may have been willing to widen its discretionary ambit of review, this Court is unwilling to go so far, for the mischief occasioned by the resultant uncertain nature of a Supreme Court decision following appeal would, in our view be contrary to the public interest”.
3. In MVIL (PNG) Trust v Yama Security Services Ltd (2009) SC1004 the Supreme Court further cautioned that:
   • “... the Slip Rule application is not an open-ended principle that one could invoke in every case when a party is unhappy about a decision or ruling against it. One has to show that there was an apparent mistake arising from some miscarriage in the judgment of the Court which ought to be rectified for the public interest in the formality of litigation. Otherwise for example this application would be a total abuse of process.”
4. As to the nature of mistake to be corrected in a Slip Rule application, the Supreme Court in Re Nomination of Governor General; application by Sir Pato Kakaraya (No. 2) (2004) SC752, said there must be a glaring error or mistake in a judgment or order of the Court occasioned either by clerical error, accidental omission in a judgment or order or by a misapprehension of fact or law. See also Andrew Trawen v Steven Kawa (2016) SC1063.
5. The onus is on the applicant to point to some clear and manifest, not arguable, error of law or fact on a critical issue. That is a fundamental prerequisite in a slip rule application: See Andrew Traven v Steven Kama (supra). In Re-election of Governor General (2010) SC1085 (Sakora J, Batari J, Cannings J, Manuhu J, Gabi J) the Court stated; “where an application does not demonstrate any glaring mistake, error or slip, it will be dismissed”.
6. A classical glaring error or mistake may be found in a civil suit where, the amount adjudged and awarded differs from the apparent amount calculated based on the agreed facts and figures on the face of the records. In such a case, the applicant will have leave to apply to the judge or the Court to rectify what is clearly perceived from the face of the records to be an apparent error resulting in some miscarriage in the amount awarded.
7. In Robert Saga v PNG Law Society (2010) SC1074 the Court re-emphasised, that the Slip Rule application is not to invoke the jurisdiction of the Court to re-agitate arguments already considered for its decision or to present or raise arguments or issues which the applicant has failed to present or raise in the original hearing. That is not to say the Supreme Court as the final Court of appeal has no capacity to rectify what it may perceive to be an apparent error arising from some miscarriage in its judgment.
8. Prior to the promulgation of the Supreme Court Rules 2012, leave was not required before a party in the main appeal is heard on the merits of the Slip Rule application. As a matter of practice then, it was permissible for a party to make a slip rule application without leave and to make such application before the same judge or Court that made the decision: Michael Laimo v Steven Pirika Kama (2010) SC1063. What is now the evolving process from the 2012 Rules is that the applicant must seek leave in an application made before a single judge of the Court that made the decision.
9. In Anderson Agiru v Aluago Alfred Kaiabe (2015) SC1412 (Salika DCJ, Mogish J, Cannings J) the Court articulated the procedural proposition that the grant of leave is subject to two preconditions namely, (a) the applicant must, in accordance with O. 11 r. 32(1) of the Supreme Court Rules 2012 seek leave within 21 days after the decision or order disposing of the proceedings; (b) the applicant must satisfy the Court, the slip rule application would have a strong chance of success.
10. In SCA No. 102 of 2016 – PNG Law Society v David Rickey Copper (2018) (unnumbered SC Judgment) Injia CJ adopted and expounded on the second pre-condition as follows:
    • “A strong change of success in a case to be demonstrated by the applicant must relate to some identifiable errors in the judgment of the full Court on an important point of fact or law and a combination of both fact and law that must relate a material issue in the case that could affect the decision of the full Court and produce an outcome favorable to the applicant. The purpose of leave application is not to determine the merits of the arguments or points in the case by a detailed analysis of the material and arguments before the Court but to form a judgment on the strength of the applicant’s case on a quick perusal of the arguments and material. The judicial discretion to be exercised is wide and in an appropriate case the Court should not hesitate to refuse leave and terminate the case for a slip rule application there and then.”
11. The Chief Justice further stated on the purpose of a Slip Rule application for which leave is sought –
    • “...is not to rehash the same arguments, or seek to improvise arguments already advanced before the primary court, or to introduce new arguments that on reflection the party omitted to raise before the primary Court, but to point out an error in the face of the judgment that the Court “overlook, ignored or did not consider” when it was raised by the parties; or was clearly based on a wrong proposition of procedural or substantive law. For there can be no slip over a ground or argument that was omitted by the parties before the primary Court.”
12. As to the standard of satisfaction, it is rather high. The rationale is to deter frivolous slip rule applications and to enforce the principle of finality in litigation: Richard Wallbank and Jeanette Minifie v the State (supra) and the long line of case precedents that have since followed.

Issue

13. In the leave application before this Court, the common issue is:
    • Whether, upon a quick perusal of the arguments and materials before the Court, there is demonstrated in each ground to re-open the case under the slip rule principles, a clear and manifest, not arguable, error of law or fact on a critical issue.

Preliminary Assessment

14. Whether the application for leave meets the pre-condition in O. 11 r. 32 (3) of the Supreme Court Rules, is to be decided on the grounds for leave with the onus on the applicant to show a strong chance of success in a case to be demonstrated in regard to some identifiable error in the judgment of the full court on an important point of fact or law or a combination of both fact and law on a material issue on the case that could affect the decision of the full court resulting in injustice to the applicant: PNG Law Society v David Rickey Copper (supra). The application must demonstrate that upon a quick perusal, a glaring mistake, error or slip of law or fact on a critical issue is clearly manifest, and not arguable, on the face of the records.
15. In this case, the applicant lists and relies on 11 grounds of purported “slips” that this Court made. The grounds, couched in convoluted, knit-picking fashion are interrelated and centred around the principal contention that the Supreme Court made a slip and misapprehended the facts and law in determining the issue of property ownership and the State’s legal or equitable right and interest in the property misappropriated by the applicant and his accomplice. The whole of the 11 grounds can be determined in one ruling. However, for completeness, I will set out each ground.

Considerations

Slip No. 1 & 2: Ownership of Property in K5 million

16. The applicant’s case is that the Supreme Court slipped misapprehending the facts and law when it failed to appreciate, that the part-payment of K5m paid into Kaman & Co. Lawyers trust account was from the K20.3m compensation given to the landowners of East Awin, that the court failed to appreciate the ownership of the property having been transferred from the State to the landowners and held in trust by the Lawyers under a power of attorney, ceased to be a public fund and hence was not the property of the State as charged in the indictment
17. These grounds and the supporting arguments are clearly seeking to reagitate the issue of property ownership that has been conclusively dealt with by the National Court and again by the Supreme Court. The grounds do not come within the ambit of, “clearest” error.
18. The facts surrounding the payment of compensation, the part-payment of the K5m into the lawyer’s trust account, the disbursement of the K5m, the factual and legal issues surrounding property ownership, the legal or equitable right or interest of the State in the K5m up to disbursement for the purpose intended under s. 383A of the Criminal Code were comprehensively dealt with by the National Court and the Supreme Court.
19. The application for leave to argue the same issues arising out of and in connection with the definitions of ownership and property rights and interests in the K5m is a clear attempt to rehash the same arguments. It was a clear attempt to improve the same arguments already advanced and determined before the National Court and the Supreme Court. The proposal which obviously emanated from a gross misunderstanding of the slip rule principles is a total farce in failing to meet the required test of satisfying the court on a higher standard of a “strong chance of success”: Anderson Agiru v Aluago Alfred Kaiabe (supra).
20. From another equally compelling viewpoint, any deliberate attempt to reagitate the same issue that has already been determined in the judgment of the Court is tantamount to an abuse of the Court process.
21. An added argument that the Supreme Court slipped or erred in not appreciating that K5m has been paid as compensation and property ownership has passed to the landowners and that the State should allege that the applicant embezzled the K5m from the customary landowners is, the most absurd proposition of law and a gross misapprehension of the proved facts.
22. These grounds are misconceived. They are bound to be dismissed.

Slip No. 3 Property and Ownership issue from another perspective

23. The contention under this ground is invariably tailored into the same vein of argument that the Supreme Court made a mistake, or slip, or error by incorrectly interpreting and applying the two essential elements of the offence of misappropriation namely, “property and belonging and to another person.” The applicant contended that the Court wrongly relied on the case of Roland Tom & Anor v The State (2019) SC1833 where the failure of the defence to raise any matter or argument on the issue of ownership or property at the National Court does not absolve the State from proving all elements of the offence beyond reasonable doubt.
24. This ground is misconceived for several reasons.
25. Firstly, the Court did not “rely on” Roland Tom wrongly or at all in dismissing the appeal. Roland Tom stands for the principle that parties are bound by the conduct of their counsel in determining what issues to contest in a criminal trial. The Supreme Court simply pointed out that the appellants had conceded at the trial before the National Court that the property belonged to the State and that the element of ownership was not in dispute. The trial judge was entitled to proceed on that basis. That is the very purpose of the pre-trial process, to identify the issues in dispute and thus promote the efficient administration of justice. It must be said furthermore that the concession was entirely appropriate in the circumstances of the case.
26. The Supreme Court further observed that, despite that concession, the trial judge correctly acknowledged in his decision that the State retained the burden of establishing each and every element of the alleged offence beyond reasonable doubt, before he considered the issue of ownership and explicitly found that the monies belonged to the State, applying the well-established principle outlined in Brian Kindi Lawi v The State [1987] PNGLR 183.
27. Moreover, having regard to the purposes of this application, the Supreme Court considered the arguments raised by the appellants challenging that finding, despite the fact that they had not been raised before the trial judge, and emphatically dismissed them.
28. Thus, the ground is enmeshed with confusion in interpreting the law on the well-trodden legal meaning of property and ownership that has been comprehensively argued and decided by the Court in Brian Kindi Lawi and the many cases that have applied it since.
29. I repeat the same reasoning against the grant of leave for the first two grounds of purported slip here.
30. The applicant has also misled the Supreme Court with the reference to the case of Roland Tom & Anor v The State. There is nothing new. The primary court has made findings of facts and conclusions based on the agreed and admitted facts from documentary evidence and the inferences to be drawn therefrom.
31. Pitching this application against the high standard of satisfaction, the applicant has lavishly laboured on purported error, slip, or mistake that do not manifest in an important fact or law and are not apparent on the face of the records, or and not already advanced before the primary court and the Supreme Court, or that which the Court overlooked, ignored, or failed to consider when raised by the parties or that the findings were clearly based on a wrong proposition of law or procedure.
32. The glaring incontestable intention of this application is to seek leave to rehash a conclusion that should be in their favour when they already had the opportunity to argue those issues. This ground stands to be dismissed.

Slip No 4

33. Under this ground, the applicant seeks to argue that the Supreme Court erred or made mistake when it failed to consider that an outstanding amount of K14.7m is yet to be paid to the landowners, not K20.3m as K5m has already been paid to the landowners.
34. This contention again demonstrates gross misunderstanding of the primary purpose, utility and use of the principle of slip rule applications to correct a glaring error on the face of the records. The drafting of the purported grounds of slip is also a classic example of an obvious misapprehension of the proven facts on the basis of which the primary court conclusively decided the issue of ownership and the legal or equitable right and interest of the State in the property that can only lapse when the property was honestly used or applied for purpose intended.
35. The rationale is simple. It is to protect the beneficiary and the public interest from public funds being syphoned off by dodgy, untrustworthy, dishonest public servants and trustees vested the responsibility to use or apply the public fund for the use and purpose intended under s. 383A of the Criminal Code. The applicant has not shown a meritorious ground for leave under this ground. I propose to dismiss it.

Slip No. 5, 6, 7 Application for leave to reargue the case of Wartoto

36. The common contention here is that the Supreme Court slipped or erred in relying on the case of Wartoto v The State (2019) SC1934 where monies allocated was subject to certain conditions and remained the property of the State until it was applied to the intended purpose unlike, in this case where the payment involved outright payment of compensation to the customary landowners. The K5m having been cleared by the Treasury and paid to Kaman & Co. Lawyers, the property ownership thereby transferred from the State to the landowners. Any ownership, or any legal or equitable right and interest in the State ceased after the K5m was held in the trust account to be applied or used under the power of attorney.
37. I repeat here, the reasoning against the application for leave in the purported Slips No 1 & 2, Slip No 3 and Slip No 4 in the preceding paragraphs. The attempt to distinguish this case from Wartoto’s case is mischievous and misguided. It demonstrates a clear misapprehension of the facts and the application of the well-trodden law of misappropriation in s383A of the Criminal Code that is particularly conversant with those in the practice of criminal law.
38. These grounds, drafted in convoluted, argumentative (submissions) fashion do not point to any glaring error or mistake in the judgment or order occasioned by clerical error, accidental omission or by misapprehension of fact or law. The same arguments have been agitated and conclusively determined by the National Court and the Supreme Court. The applicant is wishful of rehashing the same arguments and seeking to improvise arguments already advanced before the primary court and the Supreme Court in what is clearly an attempt to have a second bite at the apple. It points to a clear attempt to abuse the court process.
39. These grounds do not raise any important point of law or fact worthy of the Supreme Court intervention to correct under the Slip Rule principles. The grounds are baseless and unmerited. They are bound to be dismissed.

Slip No. 8, 9, 10

40. These grounds again propose to reagitate the contention on the Court reliance on Roland Tom v. The State. The arguments go back to the elements of s.383A (B) (i) of the Criminal Code.
41. The reasonings against grant of leave in the preceding Slip grounds are repeated here. These grounds, similar to the other slip assertions, do not conform with the principles governing the Slip Rule application. The grounds do not raise clear and manifest, not an arguable error of law or fact on a critical issue that the Court over- looked, ignored or did not consider when raised by the parties. And the proposed grounds are not based on a wrong proposition of procedural or substantive law. If the parties did not raise these matters or issues in the Court below, then there can be no slip.
42. The applicant has not demonstrated a strong chance of success on the requisite standard and grounds to satisfy the grant of Leave to argue these grounds. I propose to dismiss them.

Slip No. 11

43. The proposed ground here is that the Court failed to consider that the appellant had the authority under the power of attorney to receive the money and once he had received the money, the property in the money had passed and the State no longer had the legal or equitable interest in it.
44. This is a rehashing of the same argument as in the other grounds. For the same reasoning against the grant of leave in those preceding grounds, this ground is also misconceived and unmeritorious.

Conclusion

45. In conclusion, the terms of the purported slips as couched in the first two grounds, just like with the other closely connected nine grounds, are classic examples of a Slip Rule application being resorted to as an open-ended principle that “busy bodies” could invoke in every case when a party is unhappy about a decision or ruling against it. This application smacks of a total abuse of process. Without demonstrating an apparent mistake arising from some miscarriage in the judgment of the Court which ought to be rectified for the public interest in the finality of litigation, the arguments put forward in support of the leave profligately reagitated issues that had been conclusively determined by the primary court and the Supreme Court.
46. In the end result, the application for leave to re-hear the appeal under the slip rule application is void of merit. It is dismissed.

Ruling and ordered according
____________________________________________________________
Awi Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent