Kaman v State [2022] PGSC 43; SC2242 (4 May 2022)

SC2242

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 13 OF 2019

PHILIP KAMAN

V

THE STATE

Waigani: Batari; J
2021: 22^nd November
2022: 4^th May

SUPREME COURT APPEAL – application for leave to re-open appeal against conviction – slip rule application – principles of – leave – grounds for grant of – onus on applicant to demonstrate glaring mistake, error or slip of law or fact on a critical issue is clearly manifest, and not arguable – grounds amounting to rehashing arguments dismissing the appeal – no slip disclosed – application refused.

Held:

1. To establish a strong chance of success, the applicant must demonstrate upon a quick perusal of the arguments and materials, a glaring mistake, error or slip of law of fact on a critical issue that is clearly manifest, and not arguable on the face of the record. [para 8]

2. In an application for leave to make a slip rule application, the applicant must point to some clear and manifest, not arguable, error of law or fact on a critical issue: Traven v Kama. [para10]

3. The slip rule application failed to demonstrate a strong chance of success because of a glaring mistake, error or slip of law or fact in the trial judge’s finding that the property belonged to the State.

4. Leave is refused.

Cases Cited:

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

Counsel:

Applicant, in-Person.
Ms. H Roalakoma, for the State Respondent.

4^th May, 2022

1. BATARI J: This an application seeking leave, under O 11 r 32 (2) (3) of the Supreme Court Rules to make a ‘slip rule application.’
   

Background

2. 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 Department of Treasury issued a cheque payable to the landowner company, Paiso Company Limited in the sum of K5 million. On the instructions of David Kaya, representing the lander owners, the cheque was deposited to the trust account of his co-accused, Philip Kaman, a lawyer. Between 17 October and 5 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.
   
3. Philip and David appealed against their convictions on several bases, including that the trial judge erred in finding that the property of K5 million belonged to the State. They also appealed against their sentences.
   
4. On 19/10/2020, Court (Batari, Mogish, Berrigan JJ) dismissed the appeal against the misappropriation convictions and sentences which decisions have given rise to this application before me as single judge of the full Bench on the leave application.
   

Applicant’s position.

5. The applicant’s position in this application for leave is to raise issues of oversight amounting to errors, mistakes, or slips on points of law or fact that the full Supreme Court should correct. The proposed grounds are basically around issues of law and fact relating to the meaning of ownership and of property under s. 383A of the Criminal Code.
   

Principles on slip rule applications

6. The relevant principles as it applies to guide slip rule applications are settled following, 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. The Supreme Court stated at p. 103:
   

“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.”

7. The public interest in the finality of litigation in essence requires determination of only genuine cases of a slip. It is not an open-ended avenue to rehash purported errors, mistakes, or slips on a point of law or fact. In MVIL (PNG) Trust v Yama Security Services Ltd (2009) SC1004, the Supreme Court stated:
   

“... 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.”

8. The leave process is strict with a high standard of satisfaction. There must be, upon a quick perusal, a glaring mistake or error in a judgment, or order of the Court, occasioned by clerical error or accidental omission in a judgment or order, or there has been a clear misapprehension of fact or law. See, Richard Dennis Wallbank; Re Nomination of Governor General, application by Sir Pato Kakaraya (No. 2) (2004) SC752; Andrew Trawen v Steven Kama (2016) SC1063.
   
9. In Robert Saga v PNG Law Society (2010) SC1074, it was held, the Court has no power to hear re-agitation of arguments already considered for its decision or hear arguments or issues which the applicant has failed to present or raise in the original hearing.
   
10. A fundamental prerequisite in an application for leave to make a slip rule application, is for the applicant to point to some clear and manifest, not arguable, error of law or fact on a critical issue: See, Traven v Kama. In Re-election of Governor General (2010) SC1085 the full 5-member Bench warned: “where an application does not demonstrate any glaring mistake, error or slip, it will be dismissed.”
    

Issue

11. The common issue before this Court is: Whether, upon a quick perusal of the materials before the Court, there is demonstrated, a clear and manifest, not arguable, error of law or fact on a critical issue, as a ground or grounds to re-open the case under the slip rule principles.
    

Considerations

12. The applicant relies on nine grounds. At the hearing, Mr Kaman relied only on four instances where the Supreme Court fell into error on the facts. The arguments on each are fully set out in the applicant’s written submissions which I have read and considered.
    
13. Mr Kaman’s contentions are basically against what was stated by Berrigan J with whom Batari J and Mogish J concurred, at paragraph 31:
    

“I note here that this issue was not in dispute before the lower court. It was accepted by each of the appellants and specifically conceded in submissions on verdict by their counsel. Both counsel for the appellants failed to mention in their grounds of appeal or on submission.”

14. The applicant submitted; the Court made glaring oversights in this passage when it stated that:
    
    • (1) The issue of property ownership was not in dispute;
    • (2) Each appellant conceded ownership is not in dispute;
    • (3) Counsel for the appellants failed to raise the issue of property ownership in their appeal grounds or submissions.
      
15. The fourth contention is against what was said at paragraph 42, that:
    

“Whilst not necessary to my determination, my view is further strength by the unchallenged evidence of Gary Maso Paia, the Chief Internal Auditor of the Department of Treasury, that the monies also had to be acquitted.”

16. The contention here is that the decision misapprehended and overstated the evidence of Gary Maso Paia, Chief Internal Auditor, of the Department of Treasury, to the effect that the monies had to be acquitted. The applicant contends that Gary Paia did not give undisputed evidence on acquittal of monies and that the issue of acquittal was irrelevant, as the K5m was not public money or State property.
    
17. All the points of contest the applicant is raising evolves around the central issue of whether, the K5m paid into Kaman & Co Lawyers Trust Account had ceased to be a public fund and hence, was no longer the property of the State. This is apparent from the opening paragraph 30 of the subheading, ‘Property belonging to the State’ which states:
    

“30. Both appellants complain that the learned trial judge erred in fact and in law in finding that the State had established beyond reasonable doubt that the subject property belonged to the State.”

18. The observations made by the Court in paragraphs 31 and 42 come under the same sub-heading with paragraph 31. The contention before the National Court, the Supreme Court and in this application is 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, had ceased to be public fund. So, it was wrongly charged on the indictment, that the money was the property of the State.
    
19. What the applicant has put together are facts, peripheral to the core issue of property ownership. The facts are selectively knit picked from parts the judgment in sustenance of the notion that the Court made a mistake or error in concluding, the ownership issue was undisputed. It is also proposed to argue that the Court misapprehended the positions of the accused persons before the primary court in ruling that the defence conceded to the ownership of the property being in the State.
    
20. The applicant has not shown whether the error, mistake, slip or oversight he proposes to rely on was occasioned by a clerical error, or an accidental omission, or a misapprehension of fact or law.
    
21. The facts surrounding the compensation payment, 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.
    
22. 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 under the slip rule principles.
    
23. It is also relevant to note, the Supreme Court affirmed, that the primary judge correctly acknowledged in his decision, the State retained the burden of establishing each element of the offence beyond reasonable doubt. 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.
    
24. The glaring intention of this application is to seek leave to rehash a conclusion that should be in the applicant’s favour when he already had the opportunity to argue the same issues and both the National Court and the Supreme Court had already determined those issues.
    
25. The proposal to reopen the case obviously emanated from a gross misunderstanding of the slip rule principles. It is a clear attempt by a party who is unhappy about a decision or an order against it to reagitate the same arguments on issues of fact and law the trial court and the appellate court had determined. Clearly, this fails 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 (2015) SC1412.
    
26. 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.
    
27. Even if the nine grounds, supporting the leave application were to be argued, it is obvious that none of the grounds 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. It is apparent, the applicant is wishful of rehashing the same arguments and is 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.
    
28. The grounds are baseless and unmerited. They are bound to be dismissed.
    

Conclusion

29. In conclusion, the applicant’s submissions which closely followed the nine grounds, are classic examples of a Slip Rule application being resorted to as an open-ended principle that could be invoked in every case when a party is unhappy about a decision or ruling against it. 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 raised issues that had been conclusively determined by the primary court and the Supreme Court.
    
30. In the 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
__________________________________________________________
Applicant: In Person
Public Prosecutor: Lawyers for the Respondent