Dolo v State [2023] PGSC 163; SC2513 (22 February 2023)

SC2513

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO.28 OF 2022

REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b)

BETWEEN:
JANET DOLO
Applicant

AND

THE STATE
Respondent

Waigani: Batari J, Bona J, & Numapo J
2022: 13^th December
2023: 22^nd February

CRIMINAL LAW – manslaughter sentence – application for review of – 10 year sentence – plea – Constitution s 155(2)(b) – judicial review principles – whether criteria for judicial review satisfied – Criminal Code, s 302 – head sentence of 10 years – conditions for judicial review not satisfied – application for review refused – sentence of 10 years affirmed.

Cases Cited:

Avia Aihi v The State (2) [1981] PNGLR 81
Ben Wafia v The State (2006) SC581
Camillus Parang v The State (2010) SC1068
Danny Sunu v. The State [1984] PNGLR 305
Manu Kovi v The State (2005) SC789
Mark Bob v The State (2005) SC808
Michael Mikoro v The State (2015) SC1424
Morea v The State (2020) SC1957
Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568
William Norris v The State [1979] PNGLR 605

Counsel:

Ms Fionna Kulala, for the Applicant
Mr David Kuvi, for the Respondent

22^nd February 2023

1. BY THE COURT: On 20 August 2021, the National Court at Waigani convicted and sentenced the applicant, Janet Dolo to 10 years of manslaughter pursuant to s 302 of the Criminal Code. This is an application for judicial review of the sentence, the applicant having lost her right to appeal under Sections 22 (d) and 29 (1) of the Supreme Court Act.
   
2. On 2 May 2022, Janet Dolo lodged her application for leave to review under Constitution s. 155 (2) (b). Leave was granted on 16 August 2022: Avia Aihi v The State (2) [1981] PNGLR 81. Section s. 155 (2) (b) reads:
   

“(2) The Supreme Court –

(b) has an inherent power to review all judicial acts of the National Court;”

3. In brief, the applicant and the deceased Serah Kende were married to the same man, Nayson Kambe. On the morning of 2 March 2022, at 8 Mile roundabout on Hubert Murray Highway, National Capital District, the two women had an argument. The altercation developed into a physical fight between the two, during which Serah hit Janet on the head with a stone, drawing blood. Janet crossed the road to get away, but Serah pursued after her. When Serah caught up with Janet, Janet drew a small knife and stabbed Serah near her neck, just above the right collar bone, penetrating downwards so that the knife punctured her lung. Serah was rushed to Port General Hospital but was pronounced dead upon arrival.
   
4. The applicant appeared before the National Court on 5 June 2021 where she was convicted of the charge of manslaughter upon pleading guilty. On 20 August 2021, the primary court imposed a 10-year imprisonment term in hard labour, less time in custody of 5 months 18 days and suspended two years, leaving the balance of 6 years, 6 months, 12 days to be served in custody.
   
5. The Application for Leave to Review contained broad grounds for review of sentence. It generally ascribed to the applicant’s desire for this Court to revisit her sentence for various reasons contained in the statement annexed to the Application form. The grounds included inter alia, assertions that the primary judge failed to consider on sentence, the lack of intention to kill.
   
6. The applicant’s application is purportedly superseded by a subsequent Application for Review filed by the Public Solicitor on 22 August 2022. We say, ‘purportedly’ for reasons that follow. The new grounds are that:
   
   1. The trial judge erred in law in his (her) sentencing discretion by not taking into consideration the strong mitigating and extenuating circumstances of the applicant’s case.
      
      2. The trial judge erred by imposing an unfair sentence considering the fact that there is presence of de facto provocation by the deceased and that the killing occurred following an argument between the deceased and the applicant who are both married to the same man.
         
7. We pause here to interpose, with respect, the involvement of the Office of Public Solicitor in this review application as was raised with counsel Ms Kulala during the hearing. The Public Solicitor filed the fresh application for review following grant of leave. This is most unusual and inappropriate. The intervention by the Public Solicitor after the grant of leave raises the question of procedural correctness and tenability in rescoping the grounds for review.
   
8. The action epitomises what we consider to be the growing tendency of filing added or fresh grounds for judicial review post the grant of leave. This is an abuse of the court process, it is in direct conflict with settled principles governing grant of leave, one of the determining considerations being whether there are “cogent and convincing” reasons amounting to clear legal grounds which would merit a review of the decision of the primary court. The applicant must also show a reasonable explanation for allowing the statutory right to appeal to lapse without exercising the right to appeal: Avia Aihi v The State; Danny Sunu v. The State [1984] PNGLR 305. We will return to the aspect of applications for leave to review, in the latter part of this judgment.
   
9. Suffice to caution at this juncture, this serious procedural flaw is sufficient basis to dismiss the application for judicial review at the outset. The proper process is for the applicant or his lawyer to file a supplementary application for review, expounding on the grounds in the initial application for leave and the grounds in support of application for judicial review and must specifically state so in the application. Failing that, the applicant ought to apply for leave to amend or add fresh grounds for review, following the grant of leave.
   
10. Be that as it may, there is no affidavit before this court explaining why the grant of legal aid was belated and why the applicant should be heard on the belated grounds for review. With respect, such casual approach is tantamount to flouting observances of settled principles of law and practice, it is detriment to the applicant.
    
11. With respect, it also calls into question, the Public Solicitor’s independent discharge of his constitutional functions in respect of representation of accused persons at the trial court. The question of legal aid by advice, or assistance, or representation, is a matter that is settled or ought to have been resolved immediately following a conviction and sentence. Counsel would have then, considered the strength and weakness of the decision and determine whether to appeal the decision and advise the prisoner as appropriate.
    
12. When legal aid is belatedly granted as in this case, it unfortunately demonstrates the growing tendency for the Office of the Public Solicitor to ‘jump on the bandwagon’ of judicial review cases by prisoners without taking the stand to decide the merits or demerits of the case before deciding to extend legal aid. This propensity can lead to undesirable dilution and erosion of the constitutional freedom of the Public Solicitor to determine the provision of legal aid by advice or assistance or representation independently (Constitution ss. 176 (5), 177 (2)).
    
13. With respect, the Court too ought to take judicial notice of the Public Solicitor’s independence and professional integrity to make informed decisions on provision of legal aid to prisoner appeals and judicial reviews. The Court ought to be slow to intervene under Constitution s. 177 (2)(b) to order provision of legal representation unless the case involves such complexity of factual or legal issues or clear legal grounds meriting legal advice or assistance.
    
14. On the merits of the application before this Court, it is clear from the records and Counsel for applicant conceded, there is no strong mitigating and extenuating circumstances meriting a review. It is apparent, that the application for review is incontestably unmeritorious for several reasons that:
    
    1. the 10 year term for manslaughter is within the sentencing range for similar-type killings involving a weapon: Manu Kovi v The State (2005) SC789, it is also consistent with the current sentencing pattern,
       
    2. the whole circumstances of the killing do not support any contention that the sentence was obviously (not merely) excessive: (William Norris v The State [1979] PNGLR 605),
       
    100. the applicant has not set out, and counsel conceded, there is nothing on the face of the records (apparent or latent), showing an identifiable error having the effect of vitiating sentence, (William Norris v The State [1979] PNGLR 605, Ben Wafia v The State (2006) SC581, Michael Mikoro v The State (2015) SC1424),
         
    4. Defence counsel in the court below submitted unequivocally, the facts warranted a term of imprisonment between 8 years and 12 years,
       
    5. the grounds for review are implausibly contradictory to the submissions on mitigation by Public Solicitor lawyer having carriage of the case for the offender in the primary court, it is most confusing and embarrassing,
       
    6. the primary judge carefully considered and took into account, inter alia, the lawyers’ submissions, mitigating factors with personal circumstances of the offender, de facto provocation, and compensation payment.
       
15. Before we dismiss this application, we make these further observations on the sudden upsurge of prisoner judicial review applications coming before the Supreme Court. This, we think, is due to greater awareness of the right to appeal or to seek a judicial review and the 2^nd SCHED. FORM 1 (Appeals) and FORM 2 on Application for Leave to Review being recently made readily available to prison locations. We have no issue with that.
    
16. The important aspect is, that the applicant must obtain leave before his or her conviction, sentence, or both are reviewed. With respect, a situation has arisen where applications for leave are readily granted as opposed to or contrary to the norm where the leave application is considered and determined under Constitution s. 155 (2) (b) and settled principles enunciated in the seminal case of Avia Aihi v. The State (supra).
    
17. Whether the application for leave is before the full court or a Judge pursuant to O 5 r 3 of the Supreme Court Rules, the important aspect is, that it is subject to judicial discretion exercised on proper principles. We adopt what his Honour Justice Gavara-Nanu articulated in Morea v The State (2020) SC1957:
    

“5. The applicant needs to obtain leave before he can have his conviction reviewed. Thus, it is convenient to address the issue of leave at this juncture. Whilst the applicant has the right to invoke s. 155 (2) (b) of the Constitution for his review, leave is a discretionary matter, and it is entirely up to the Court whether to grant him leave or not. However, the discretion to be exercised by the Court being judicial in nature, it must be exercised judicially and on proper principles. See, Avei v. Maino [2000] PNGLR 157 and Application of Ludwig Patrick Schulz (1998) SC572. That said, the need for the Court to exercise its discretion is not a caveat to the exercise Court’s inherent supervisory power to review, if there is a clear manifestation of injustice and where there is an arguable case on the merits. See, Avia Aihi v. The State [1981] PNGLR 81. The Court’s discretion in this regard is unfettered. The onus is on the applicant to show convincing reasons to invoke the Court’s review jurisdiction. See, Avia Aihi v. The State (No. 2) [1982] PNGLR 44 at 45. The applicant must show among others that he had lost his right to appeal or leave to appeal. This is a condition precedent to a review under s. 155 (2) (b) of the Constitution. See, Application by Anderson Agiru [2002] PGSC 23; SC 686 and Avia Aihi (No.2) (supra).” (Emphasis added)

18. In Camillus Parang v The State (2010) SC1068 the Court, expounded:
    

“The principles of law governing Judicial Review applications are relevant and pertinent to the hearing in this proceeding. More specifically, the principles applicable to a criminal case have been settled in the landmark case of Avia Aihi v. The State (2) [1981] PNGLR 81, the effect of which was summarized in Application by Jeffery Balakau (1996) unreported, SC 529, 25th October 1996 in this way:

‘A person affected or aggrieved by the final decision of the National Court and lacking now any statutory right to have that decision reviewed, may nevertheless make application to the Supreme Court to exercise its inherent and discretionary power to review that judicial decision under s.155(2)(b) of the Constitution. This inherent or right in such an aggrieved applicant is the same right which enabled Avia Aihi to make application for leave to apply for review by the Supreme Court’’’. (Emphasis added)

19. It is settled, that the review provisions in Constitution s. 155 (2) (b) are not to be invoked unless an applicant demonstrates sufficient reasons for allowing the appeal time to lapse without exercising his or her right of appeal. See, Avia Aihi v The State (supra); Danny Sunu v. The State [1984] PNGLR 305, and the numerous cases that have since followed. The applicant must show, exceptional circumstances exist to justify resort to the judicial review process under s. 155 (2) (b). The applicant must further demonstrate the merits of the grounds to be argued because, “.... if the matter, the subject of the application has no merit whatsoever, it is impossible to see how there could be any cogent or convincing reasons for granting a Review”: Danny Sunu v. The State (supra).
    
20. In Danny Sunu v. The State Pratt, and McDermott JJ, had this to say on, “cogent and convincing reasons,” at 307:
    

“We agree with the approval of Kapi, J in Avia Aihi v. the State (2) at p.61, that the merits of the application or perhaps rather more specifically, the merits of the case to be argued must form part of the “cogent and convincing” reasons. After all, if the matter, the subject of the application has no merit whatsoever, it is impossible to see how there could be any cogent or convincing reasons for granting a Review. Therefore, the first thing to be decided by this Court, is whether the applicants have made out sufficient reasons and exceptional circumstances for the Court to grant a hearing....”

21. The recent case of Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568 also provides an illustrative guide on deciding the question of leave. There, Injia CJ stated:
    

“The purpose of this application for leave for judicial review is not to conduct a detailed examination, assessment and determination of the merits of the proposed grounds of review and the material placed before the court. However, if upon a quick perusal of the proposed grounds of the review and the material placed before the court by both parties, it is shown that the application is clearly without merit because the application does not raise any serious issues to be tried by the full Court, it is within this Court's discretion to stop the review from proceeding any further and the Court should not hesitate to do so. That indeed is the purpose of this leave process.”

22. With respect, we agree with that proposition of the law on the purpose of an application for leave. We iterate, if upon a quick perusal of the proposed grounds of the review and the material placed before a judge or the court by both parties, the application is clearly void of merit because the application does not raise any serious issues to be tried by the full Court, it is within this Court's discretion (or a judge) to stop the review from proceeding any further and the Court or the judge should not hesitate to do so.
    
23. We are satisfied, the application for judicial review in this case is clearly without merit. The application does not raise any serious issues to be tried by the full Court, it must be dismissed.
    

ORDERS

24. The formal orders of the Court are:
    
    1. The application for judicial review of the sentence of the National Court given on 20 August 2021, is refused.
       
    2. The conviction and sentence verdicts of the National Court are affirmed.

________________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent