Duban v Independent State of Papua New Guinea [2024] PGSC 85; SC2619 (27 August 2024)

SC2619

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 32 OF 2023

NIXON DUBAN
Appellant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Kandakasi DCJ
2023: 23^rd November
2024: 27^th August

APPLICATION – Application to stay sentence pending appeal against conviction – Courts jurisdiction – Factors for consideration – Competing interests – Applicant not prejudiced by normal criminal process taking its course – Granting stay would be an abnormal part of the process - Need to complete criminal process promptly important consideration – Applicant declined.

Cases Cited:
Eremas Wartoto v. The State (2013) SC1298
Jimmy Maladina v. The State (2015) SC1572
Paul Paraka v. The State (2023) SC2439
Paul Paraka v. The State (2023) SC2455
Garry McHardy v. Prosec Security and Communication Ltd [2000] PNGLR 279

Counsel:
Mr. B. Meten, for the Applicant
Mr. R. Luman for Respondent

27^th August 2024

1. KANDAKASI DCJ: The applicant Mr. Nixon Duban (Duban) applied for a stay of his sentencing in National Court proceeding, CR 40-44 of 2021 – Independent State of Papua New Guinea v. Nixon Duban, pending his appeal against his conviction. This was pursuant to s 5 (1) (b) and s 19 of the Supreme Court Act.
   

Brief Facts

2. By indictment dated 18^th May 2023, Mr Durban was charged with one count of misappropriation of a total of K600,000.00 contrary to s 383A (1) (a) of the Criminal Code. A trial on the charge proceeded before Justice Cannings. Several witnesses were called for and against the State and Mr Duban. But Mr Duban himself chose to remain silent and gave no evidence. In assessing the evidence, the trial Judge noted that and rejected Mr Duban’s claim in his defence of honest claim of right. In the end the trial judge found Mr. Duban guilty as charged and returned a guilty verdict against him. A pre-sentence report was then ordered and was pending when Mr. Duban filed an appeal against his conviction and filed this application.
   
3. The main grounds of Mr. Duban’s appeal can be summarised as follows:
   
   • (a) Apprehension of biasness against the trial judge for not disqualifying himself given his relationship with one of the witnesses – Mr Bryan Kramer
   • (b) Breach of his constitutional right to remain silent, by drawing an adverse inference against him
   • (c) Lack of evidence to prove that instruction for diversion of the funds were unlawful.
   • (d) Lack of establishing and having in place a trust deed.
     
4. The Applicant correctly notes the issues for determination are the following:
   
   • (a) Whether this court has the jurisdiction to deal with this application?
   • (b) What are the considerations that the applicant needs to satisfy the court with before the court grants the reliefs sought?
   • (c) Has the applicant in this case satisfied those considerations?
   • (d) Should the court grant the reliefs sought?
     
5. I will deal with these issues in the order presented, starting with the first issue first.
   
   • (a) Courts jurisdiction
     
6. There is no serious contest that the Court has the necessary jurisdiction under s 5 (1) (b) of the Supreme Court Act (SC Act) to deal with the application. The provisions relevantly read:
   

“5. Incidental Directions and Interim Orders.

(1) Where an appeal is pending before the Supreme Court–

...

(b) an interim order to prevent prejudice to the claims of the parties...

may be made by a Judge.”

7. This is a necessary provision in the light of s. 19 of the SC Act, which states in clear terms that, unless a Judge or the Court has otherwise ordered the mere filing of an appeal or an application for leave to appeal to the Supreme Court does not automatically operate as a stay.
   
8. The decisions of the Supreme Court in Eremas Wartoto v. The State (2013) SC1298; Jimmy Maladina v. The State (2015) SC1572; Paul Paraka v. The State (2023) SC 2439 and Paul Paraka v. The State (2023) 2455, confirm this position.
   
9. The question then is what are relevant factors for consideration by a Court dealing with an application under s 5 (1) (b) of the SC Act? That is an issue in the second issue (b) in this case. I turn to a consideration of that issue now.
   
   • (b) What are the considerations that the applicant needs to satisfy the court with before the court grants the reliefs sought?
     
10. It is well accepted that the decision in Garry McHardy v. Prosec Security and Communication Ltd [2000] PNGLR 279, sets out the requirements that must be met. These are as restated by the decision in Jimmy Maladina v. The State (supra):
    

(1) The Court must start from the basic premise that the respondent is entitled to the fruits of the judgment.

(2) Whether leave to appeal is required and whether it has been obtained.

(3) Whether there has been delay in making the application.

(4) The nature of the judgment sought to be stayed.

(5) Whether on the face of the record of the judgment there may be an apparent error of law or procedure.

(6) Preliminary assessment about whether the applicant has an arguable case on the proposed appeal.

(7) Possible hardship, inconvenience or prejudice to either party.

(8) The financial ability of the applicant.

(9) Balance of convenience.

(10) Whether damages would be sufficient remedy.

(l1) The overall interest of justice.

11. The applicant effectively submits, his application meets requirements (1) – (3). The State takes no issue with that. Accordingly, I accept that is the case. However, the State does take issue with considering the rest of the requirements separately and asks the Court to adopt the approach Injia CJ took in Jimmy Maladina v. The State (supra).
    
12. In Jimmy Maladina v. The State (supra), the applicant, was found guilty of a fraud related charge. While pending his sentence, he applied for a stay of his sentencing as the applicant is doing in this case. The learned Chief Justice decided to look at the relevant requirements and the case wholistically. He then considered the competing interests at play in these terms:
    

“On the one hand, the interest of justice demands that the appeal against conviction should be accorded normal due process to be argued and determined on its own merit and once a decision is made on the appeal, its decision is given full effect. In order to preserve prejudice to the appellant's claim or prayer for relief, he should not be subjected to a process that will frustrate or complicate his right to claim that appropriate relief and if granted to give effect to it. There is no question that he will be sentenced following the conviction. Whatever the sentence may be, he will have been subjected to be sentenced and if he were successful in the appeal against conviction, he will have suffered irreparable harm in respect of that portion of the punishment already served.

On the other hand, he has been convicted. Sentence will have to follow suit as a matter of law. The state of the law and preponderance of judicial thinking reflected in the cases I have referred to, though obiter they appear to be, it will require a very clear case of a sense of injustice to persuade me that the scales of justice should tilt in favour of the appellant. When he is sentenced, he may file a separate appeal against sentence. He will have recourse to an application to stay the execution of the sentence by way of a bail application if it were a custodial sentence. This could be done in quick time so that the amount of time spent under the sentence is minimized. For this reason, in terms of being subjected to the process, yes, he will be sentenced but the service of that sentence could be stayed by grant of bail thereby reducing or eliminating the impact of that sentence. Conviction and sentencing will proceed according to law. There is no prejudice to his right to defend the charge. That has been done. He has a right to contest the punishment. The opportunity is there. When sentenced, he has a right to appeal the sentence. That right will be afforded.”

(Underlining mine)

13. Weighing the completing interests as did, Injia CJ in the above case, I note that the applicant has been convicted. His sentencing is the normal consequential process that needs to take place without unnecessary delay so that the criminal process for the applicant is concluded. When he is sentenced, he will have the right of appeal against his sentence. He will have the option of applying for a stay of sentence by way of an application for bail if a custodial sentence is imposed pending his appeal on conviction and or sentence or both. The onus will be on him to act promptly to minimise the time he might spend in custody.
    
14. However, staying his sentence, pending his appeal against conviction will be an abnormal process. It comes with the risk of delaying and a conclusion of the criminal proceedings. If he succeeds in the appeal against his conviction, well and good. But if his appeal against conviction is dismissed, the final process of his sentencing would have been unnecessarily delayed, which comes with the risk of his sentencing being seriously affected and contribute to the public losing faith in the criminal justice system’s ability to promptly and appropriately deal with cases involving high profile people like the applicant. Against this, the applicant suffers no prejudice to his right to defend the charge. That he has already done, and he has exercised his right of appeal. He also has the right to contest the punishment the trial court decides to impose against him. The opportunity is there. Then when sentenced, he has a right to appeal the sentence and as already not apply for bail.
    
15. In the circumstances I declined to grant the application and order its dismissal.

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