Nane v State [2023] PGSC 161; SC2516 (19 December 2023)

SC2516

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO 1 OF 2023

STEWARD NANE
Applicant

V

THE STATE
Respondent

Waigani: Cannings J
2023: 21^st November, 13^th, 19^th December

CRIMINAL LAW – sentences – application to Supreme Court for leave to apply for review of sentence passed by National Court – Constitution, s 155(2)(b) – considerations relevant to determination of leave application.

A prisoner who was sentenced to 25 years imprisonment by the National Court and had his review of conviction dismissed by the Supreme Court, applied to a single Judge of the Supreme Court for leave to apply under s 155(2)(b) of the Constitution for review of the sentence. He argued that he filed an application for leave to appeal against his sentence within 40 days after the date of sentence but the application had been misplaced and that he had asked his lawyer to include grounds for appeal against sentence in his appeal against conviction but his instructions were not followed.

Held:

(1) An application for leave for review under s 155(2)(b) of the Constitution may be heard and determined by a single Judge of the Supreme Court.

(2) When deciding whether to grant leave, three criteria, all of which should support the grant of leave, are considered: (i) whether it is in the interests of justice to grant leave; (ii) whether there are cogent and convincing reasons and exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity; and (iii) whether there are clear legal grounds meriting a review of the decision.

(3) There was no evidence to show that the applicant had applied for leave to appeal against sentence or taken any other action to have his sentence reviewed until the filing of this application, more than three years after the date of sentence

(4) There was an unreasonable delay in applying for leave, and no satisfactory explanation for it. It is not in the interests of justice to allow an applicant to apply for review of his sentence in such circumstances. There are no cogent and convincing reasons or exceptional circumstances warranting the grant of leave. The sentence of 25 years imprisonment for wilful murder is unexceptional. There are no clear legal grounds warranting a review of sentence. Leave refused.

Cases Cited

The following cases are cited in the judgment:

Bob v The State (2005) SC808
Nane v The State SCREV 75 of 2019, 30.03.22, unreported

Counsel

S Nane, the applicant, in person
T Kametan, for the Respondent

19^th December 2023

1. CANNINGS J: Steward Nane is a prisoner at Bomana Correctional Institution serving a sentence of 25 years imprisonment after being convicted of one count of wilful murder under s 299(1) of the Criminal Code in a trial at Waigani before Justice Manuhu. He was convicted on 24 May 2019 and sentenced on 30 August 2019.

2. His application for review of conviction was heard by the Supreme Court on 22 November 2021 and dismissed on 30 March 2022 (Nane v The State SCREV 75 of 2019, 30.03.22, unreported).

3. On 4 January 2023 he filed an application in the Supreme Court for leave to review his sentence.

4. He says that he filed an application for leave to appeal against his sentence within 40 days after the date of sentence but the application was misplaced and that he asked his lawyer to include grounds for appeal against sentence in his appeal against conviction but his instructions were not followed.

5. The question before me is whether he should be granted leave to have his 25-year sentence reviewed by the Supreme Court. It is an application for leave to apply for review under s 155(2)(b) of the Constitution of the decision of the National Court to pass that sentence. Section 155(2)(b) states:

The Supreme Court ... has an inherent power to review all judicial acts of the National Court.

6. If there is a right to appeal or seek leave to appeal against any decision of the National Court that has not been exercised the person aggrieved by the decision can only have it reviewed by the Supreme Court with leave of the Court.

7. An application for leave is heard and determined by a single Judge in accordance with Order 5 rule 3 of the Supreme Court Rules 2012. I am satisfied that the present application for leave is properly before me.

CRITERIA

8. It has been spelt out in a long series of decisions that in deciding whether to grant leave for review by the Supreme Court of a National Court decision (whether made in the civil jurisdiction of the National Court or as here in its criminal jurisdiction), there are three criteria to consider, all of which should support the grant of leave:

(i) whether it is in the interests of justice to grant leave;

(ii) whether there are cogent and convincing reasons and exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity; and

(iii) whether there are clear legal grounds meriting a review of the decision.

9. As to cogent and convincing reasons for granting leave, it is relevant to consider the reasons for not filing an appeal within time and the merits of the case sought to be argued (see Mark Bob v The State (2005) SC808).

DETERMINATION

10. There is no evidence that the applicant applied for leave to appeal against sentence or took any other action to have his sentence reviewed until the filing of this application, more than three years after the date of sentence. Even if it is true that he gave instructions to his lawyer to ask for a review of his sentence, the matter that was before the Supreme Court and resulted in the decision of 30 March 2022 was clearly only a review of conviction. It would have been pointless for the lawyer to make submissions on sentence.

11. The fact is there was an unreasonable delay from the date of sentence, 30 August 2019, to the date of applying for leave for review of sentence, 4 January 2023 – three years and four months – and no satisfactory explanation for it. It is not in the interests of justice to allow an applicant to apply for review of his sentence in such circumstances. There are no cogent and convincing reasons or exceptional circumstances warranting the grant of leave. A sentence of 25 years imprisonment for wilful murder is unexceptional. There are no clear legal grounds warranting a review of such a sentence. Leave must be refused.

ORDER

1. Leave to apply for review under s 155(2)(b) of the Constitution of the sentence of 25 years imprisonment passed by the National Court on 30 August 2019 is refused.
   
2. The file is closed.

____________________________________________________________
Public Prosecutor: Lawyer for the Respondent