Ulo v Acting Public Prosecutor [1981] PNGLR 148 (26 May 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 148 - Tenge Kai Ulo v Acting Public Prosecutor 

[1981] PNGLR 148

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TENGE KAI ULO

V

ACTING PUBLIC PROSECUTOR AND JOE KOVEA MALAI

V

ACTING PUBLIC PROSECUTOR

AND

ACTING PUBLIC PROSECUTOR

V

ANDREW LALAIVA AND ANGELO UME

Waigani

Kidu CJ Kapi J Pratt J

26 May 1981

APPEAL - Practice - Striking out for want of prosecution - No cross appeal - Inherent jurisdiction to strike out where undue delay - Undue delay depends on circumstances - Onus on applicant - Appellant to give satisfactory explanation - Relevant considerations.

The Supreme Court has an inherent jurisdiction to dismiss appeals for want of prosecution where there is undue delay. What constitutes undue delay depends on the circumstances of each case.

The onus is on the applicant to dismiss to establish a prima facie case of delay and the onus then shifts to the respondent to the application to give a satisfactory explanation for the delay.

Appeals.

These were appeals against sentence on the ground of inadequacy in which applications were made to strike out the appeals for want of prosecution.

Counsel:

C. Bruce, for the applicants.

J. Byrne, for the respondent to each application, the Public Prosecutor.

26 May 1981

KIDU CJ:  I agree with what my brother Kapi is about to say.

KAPI J:  In these matters the Public Prosecutor appealed against sentence on the ground that the sentence imposed is inadequate. The respondents in each case are represented by the Public Solicitor. The Public Solicitor in each case made applications to strike out appeals for want of prosecution. By consent these applications were heard together as they raised the same points of law.

A preliminary issue was raised as to the jurisdiction of this Court. I do not think that counsel for the State seriously questioned the jurisdiction of the court. Counsel for the applicant stated that r. 25(3) of the Supreme Court Rules 1977 does not apply here because there is no cross-appeal. I do not intend to consider this provision in detail because I consider this Court has inherent jurisdiction to dismiss appeals for want of prosecution. This Court has power not only to dismiss where there is breach of rules of court but it has inherent jurisdiction apart from the rules to control its proceedings such as abuse of process. Apart from any statutory basis this Court has power to dismiss appeals where there is undue or unwarranted delay in prosecuting an appeal.

What is an undue delay depends on the circumstances of each case. However some guidance can be obtained from r. 25(1) of the Supreme Court Rules which stipulate the time in which it is anticipated that appeals should be set down for hearing. In my view it is reasonable to regard this twenty-eight days as a guide in determining the point of time when it is considered that the appellant should be ready to have the appeal heard. This is significant because I think it is in the interest of the State and convicted persons to have appeals heard as soon as possible.

I think that the onus is on the applicant to establish a prima facie case. Once having established that then in my view the onus is on the appellant to give a satisfactory explanation of the delay. The court would consider the following matters and this list is not exhaustive. The first—the mechanics of producing appeal papers such as preparation of appeals, typing of appeal books, shortage of staff etc. Secondly, the availability of reasons and transcript of evidence. Thirdly, the total period from the date the convicted person is arrested to the time of the application for striking out for want of prosecution. In each of these matters the delay was more than twenty-eight days. In the case of the appeal by the Acting Prosecutor, it is four months since the date of notice of appeal and in the other two matters the delay is six months from the filing of notice of appeal.

It appears that no attempt has been made by the Public Prosecutor to get these appeals ready for hearing in these sittings. In each of these cases the applicants have made out a prima facie case for dismissal. All that remains to be considered is whether the State has satisfactorily explained the delays.

It seems to me the only explanation given by the State is shortage of staff. Counsel for the State did not elaborate on how this affected the preparation of these appeals. It appears from what he has stated from the Bar table that during this period the Public Prosecutor, Mr. Byrne and Miss Bourke were available and this was during the court vacation when there were no court circuits. I do not think that the State has given a satisfactory explanation of the delays.

It seems to me that these applications before the court are the first applications made for dismissal of appeal for want of prosecution. I have observed that other appellants in other Supreme Court cases have been guilty of the same.

Having regard to the fact that these are the first formal applications to this Court I think it is unfair for me to exercise my discretion against the State. I am not minded to exercise my discretion against the State on these first formal applications. This should be a warning that this Court will not tolerate any similar delays by any appellant in the future.

In these matters I make two observations. The first is that I have decided the principles upon which these matters are to be determined without assistance of full argument on the law. I also point out that the conclusions on matters of fact were reached from statements from the Bar table from counsel appearing in these cases. Evidence in these cases should be properly adduced before the court either in affidavit or on oral evidence.

I would not strike out these three appeals.

PRATT J:  I agree with the statements of principle and the concluding comments set out by my brother Kapi. However I regret that I am unable to exercise my discretion in the same manner as the two other members of this Bench. In my view the inordinate delay which has occurred in these matters cannot be satisfactorily explained by recourse to the outworn excuse of “staff shortage”. The State has a special obligation to ensure that its appeals against sentence are brought on with a minimum of delay. This is especially so when such appeals involve persons who have been granted good behaviour bonds, or who have already served their sentence, or who are about to be released. In the circumstances of these cases I would strike out each appeal for want of prosecution.

Application to strike out appeals refused.

Solicitor for the appellants (applicants to strike out): A. Amet, Public Solicitor.

Solicitor for the respondents: Acting Public Prosecutor, L. Gavara-Nanu.

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