Korop v State [2022] PGSC 81; SC2281 (30 August 2022)

SC2281

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 31 OF 2016

BETWEEN:
KAPI KOROP
Applicant

V

THE STATE
Respondent

Waigani: Anis J
2022: 23^rd & 30^th August

SLIP RULE APPLICATION – Seeking 2 relief – application for extension of time to apply for leave to make a slip rule application, and subject to leave being granted, application for leave to make a slip rule application – Order 11 Rule 32(1) and (3) – Supreme Court Rules 2012 as amended – considerations – jurisdiction – exercise of discretion

Cases Cited:

Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412
Kapi Korop v. State (2018) SC1670
Napanapa Landowners Association Inc v Gaudi Logae (2017) SC1677
The State v. The Transferees (2016) SC1488

Counsel:

J. Bibilo, for the Applicant
E. Thomas, for the Respondent

DECISION

30^th August, 2022

1. ANIS J: I heard the applicant’s Application which was filed under Order 11 Rule 32 of the Supreme Court Rules 2012 as amended (SCR), that is, Division 16. – Applications subsequent to disposal of proceedings (the application/slip rule application). In this instance, the applicant is not only seeking leave to make a slip rule application but firstly, he is seeking extension of time to apply for leave to make a slip rule application.

2. The application was contested and was heard on 23 August 2022 before me sitting as a single Judge of the Supreme Court. I reserved my ruling to today at 1:30pm.

3. This is my ruling.

BACKGROUND

4. The background briefly is this. The applicant was an appellant in the appeal SCRA No. 31 of 2016. He pleaded guilty to murder under s 300(1)(a) of the Criminal Code Act Chapter No. 262 (Criminal Code) and was sentenced to 25 years in hard labour. On 2 July 2016, he appealed his sentence to the Supreme Court.

5. On 3 May 2018, this Court, to which I was a member of, including the Salika DCJ, as he then was, and the Late Tamate J, upheld the appeal, quash the sentence, and remitted the matter for a rehearing or new trial. The decision is published as an unreported judgment as Kapi Korop v. State (2018) SC1670.

6. The applicant’s main contention, in the event the application is successful, is to ask the Supreme Court to correct what he claims was a glaring error which was that in quashing the sentence and in ordering a new trial, the Supreme Court should have also but did not, quash his conviction.

APPLICATION

7. The application seeks these 2 main relief:

(a) Granting Leave pursuant to Order 11 Rule 32(1) of the Supreme Court Rules 2012 for the Applicant to file out of time an Application for Leave to file Slip Rule Application; and

(b) Granting Leave pursuant to Order 11 Rule 32(3) of the Supreme Court Rules 2012 to file an Application for Leave to file Slip Rule Application;

8. In general, and in regard to an application for leave to make a slip rule application, this Court in Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412, sets at para 11 two preconditions for granting leave. First, the applicant must, in accordance with Rule 32(1), seek leave within 21 days after the order disposing of the proceedings. Secondly, the applicant must satisfy the Court that the slip rule application would have a strong chance of success.

9. The requirement to meet the first condition is paramount. Order 11 Rule 32(1) imposes a mandatory time period, that is, 21 days within which to file an application for leave to make a slip rule application or for extension of time to make such an application. This mandatory requirement is a pre-condition which must be met before the Supreme Court may invoke its jurisdiction or before the question of jurisdiction may arise, at the time of hearing a leave application. See case: The State v. The Transferees (2016) SC 1488 and Napanapa Landowners Association Inc v Gaudi Logae (2017) SC1677.

ISSUES

10. I will deal with the preliminary issues first. They are as follows, (i), what type of application is this?, (ii), subject to the first issue, whether the Supreme Court has jurisdiction to hear the slip rule application.

LEAVE TO SEEK LEAVE OUTSIDE 21 DAYS

11. Under relief (a) in the application, the applicant purports to invoke Order 11 Rule 32(1) of the SCR, and in so doing, he requests that this Court should grant him leave to make his leave application to make a slip rule application, outside of the 21 days period.

12. Can I do that? Order 11 Rule 32(1) reads:

An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.

13. The application herein firstly qualifies generally under an application of any nature that may be made after the decision of the full Court which was made on 3 May 2018.

14. That said, the first dilemma I have or see relates to the form which the application is premised. The correct form for this type of application is Form 4 under the SCR. I note that the application appears to be non-compliant with Form 4. The heading of the application states that it will be made to the Supreme Court. Form 4, however, requires such application to be made to a Judge of the Supreme Court. The applicant then pleads the relief he seeks (i) without stating the nature of the application and (ii) without pleading the grounds, as required by Form 4.

15. The application appears defective for the stated reasons.

16. The next dilemma I face is this. The application is filed outside the 21 days period. The decision of the full Court, the subject of this intended slip rule application, was made on 3 May 2018. The application was filed 5 April 2022, which is a delay of about 4 years or 3 years 11 months. The Supreme Court in The State v. The Transferees (supra) has made it expressly clear, that before the Supreme Court’s jurisdiction may be invoked to consider or hear a matter that is filed under Order 11 Rule 32(1), an applicant must file and served his or her application within the stated 21 days. That requirement, pursuant to Order 11 Rule 32(1) and according to this Court’s decision in The State v. The Transferees (supra), is mandatory.

17. At para 4, the Supreme Court stated:

4. It is significant to note that this rule is in mandatory terms by reason of the word “shall”. Ms. Wurr has conceded that the respondents filed their slip rule application 22 days after the order disposing of the proceeding was given on 5 August, 2015. In other words, it is not disputed that the respondents’ slip rule application was filed out of time. It is also not disputed that no application was made by the respondents within the 21 days of the order disposing of the proceeding being given to extend time to file the slip rule application out of time.

(Underlining mine)

18. Further, and Supreme Court stated at paras 9 and 10 (in part) as follows:

9. Filing of a slip rule application is regulated by Orders 11 r 32 and 13 r 15 of the Supreme Court Rules, thus the requirements under these rule being mandatory, must be strictly complied with. The need to comply with the mandatory requirements of these rules, goes to the jurisdiction of the Court to hear the slip rule application. Thus, if the application does not comply with the requirements of these rules, the non-compliance renders the application incompetent and the Court would have no jurisdiction to hear the application. Very clearly, the slip rule application in this case cannot possibly succeed due to its incompetence and the Court lacks jurisdiction to hear it: Agiru v. Kaiabe [2015] PGSC2; SC 1412.

10. Order 11 r 32 of the Supreme Court Rules, grants power to the Court to hear a slip rule application as long as the application meets the requirements of the above mentioned rules viz; that it is competent. The need for a slip rule application to conform to Form 4 under Order 13 r 15, as stated earlier is a mandatory requirement and therefore it is a pivotal consideration on the issue of the competency of such an application.

CONSIDERATION

19. As this application is filed outside the 21 day-period, any filing dates thereafter are inconsequential, that is, whether it be a day or 3 years after the said 21 day-period expires. This shall apply in a normal case where an applicant intends to seek leave to make a slip rule application, as well as in a case like the present, that is, where the applicant is firstly seeking leave to extend time (outside the 21 day-period) to apply for leave to make a slip rule application.

20. I therefore find that the applicant has not invoked the jurisdiction of the Court because application is incompetent. The application for leave to seek an extension of time to apply for leave to make a slip rule application is invalid. I also say the same, and I reach the same conclusion and findings, in relation to the second relief which seeks leave to make a slip rule application. The second relief in the application is dependent upon the first relief thus shall suffer the same fate herein.

SUMMARY

21. I will dismiss the application. I find that it was filed in breach of Order 11 Rule 32(1) of the SCR. The application is therefore incompetent. I also dismiss the application for failure to comply with Form 4.

ORDERS OF THE COURT

22. I refuse the Applicant’s Application filed on 5 April 2022.
________________________________________________________________
Public Solicitors Office: Lawyers for the Applicant
Public Prosecutor’s Office: Lawyer for the Respondent