SCR No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170 (28 June 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 170 - SC Review No 4 of 1990; Application by Wili Kili Goiya 

[1991] PNGLR 170

SC408

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

APPLICATION BY WILI KILI GOIYA SC REVIEW NO 4 OF 1990

Waigani

Kapi DCJ Los Sheehan JJ

29 October 1990

28 June 1991

APPEALS - Appeal from Supreme Court - Final court of appeal - No power to review decisions of differently constituted Court - Constitution, s 155(2)(a), (4).

ADMINISTRATIVE LAW - Judicial review - Jurisdiction of Supreme Court - No power to review decisions of differently constituted court - Constitution, s 155(2)(a), (4).

PRACTICE AND PROCEDURE - Supreme Court - Appeals - Judicial review - No appeal from Supreme Court - No judicial review of Supreme Court decision - Constitution, s 155(2)(a), (4).

Section 155(2)(a) of the Constitution provides that the Supreme Court is the final court of appeal.

Section 155(4) of the Constitution provides that the Supreme Court has “inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case”.

Held

Where an appeal to the Supreme Court has been determined:

(a)      s 155(2)(a) of the Constitution prohibits any further or other right of appeal;

(b)      s 155(4) of the Constitution does not permit a differently constituted Supreme Court to review that determination.

Avia Aihi v The State [1981] PNGLR 81 and SCR No 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150, considered.

Cases Cited

Avia Aihi v The State [1981] PNGLR 81.

SCR No 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150.

Judicial review

This was an application for judicial review of a decision of the Supreme Court, dismissing an appeal against conviction and sentence.

Counsel

P Kunai, for the applicant.

V Noka, for the State.

Cur adv vult

28 June 1991

KAPI DCJ: The applicant was convicted by the National Court for wilful murder on 24 July 1985 in Wewak and sentenced to life imprisonment.

He appealed against both the conviction and sentence and the Supreme Court, on 30 April 1987, dismissed the appeal against conviction but allowed the appeal in respect of sentence and substituted 20 years in hard labour.

The applicant has made this application to review the decision of the Supreme Court dated 30 April 1987. This is an unusual application and the question of the jurisdiction of this Court was raised. Does the Supreme Court have power to review a decision of a differently constituted Supreme Court?

Counsel for the applicant has relied on s 155(2)(a) and s 155(4) of the Constitution.

SECTION 155(2) (a) CONSTITUTION

Counsel submitted that under this provision this Supreme Court may review a decision of a differently constituted Supreme Court.

With respect, this provision does not assist the applicant at all. The terms of this provision would prohibit any further power of review.

Under s 37(15) of the Constitution, every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law. In the instant case, the applicant was convicted and sentenced by the National Court. According to this provision, the convicted person has the fundamental right to have this decision reviewed by a higher court. It is clear from this provision that another National Court cannot review the same decision. The Supreme Court is the higher court in the circumstances. The power of review is “according to law”. The law relating to the power of review of conviction and sentence in criminal cases is regulated by the Supreme Court Act (Ch No 37). A convicted person has a right to appeal to the Supreme Court on any ground set out under s 22 of the Act. This he has done and the Supreme Court has given its decision. The grounds which he raises now on this application are matters which could have been raised on appeal. In particular, there is provision for calling fresh evidence under s 6 and other evidence under s 8 of the Supreme Court Act. Once a person has exercised his right in accordance with s 37(15) of the Constitution and s 22 of the Supreme Court Act, he has no further right to have his conviction and sentence reviewed. No further right is given under the Act to have the decision of the Supreme Court reviewed by any other court or tribunal. Section 155(2)(a) puts the matter beyond doubt. That is where the buck stops as far as the judicial system is concerned.

According to the majority in Avia Aihi v The State [1981] PNGLR 81 what I have said up to this point only relates to the appeal procedure. Accepting that to be the law, I would find it extremely difficult to accept any argument that the applicant, having exhausted the appeal procedure, can now go back and invoke the judicial review procedure under s 155(2)(b) and review the same decision of the National Court and have a second bite at the cherry. That of course is not the issue before us, so I cannot express a firm opinion on the matter.

SECTION 155(4) CONSTITUTION

What is under consideration are the words “such other orders as are necessary to do justice in the circumstances of a particular case”. It is submitted that in the circumstances of this case, the Supreme Court should further review the decision of the Supreme Court.

This provision cannot support the proposition that a Supreme Court can review a decision of a differently constituted Supreme Court. If that were so, it could also be said that the National Court could review a decision of another National Court decision in the same manner. I would reject such an interpretation. There are limited circumstances provided in the law where the Supreme Court and the National Court can review their own decisions. Under s 10 of the Supreme Court Act (Ch No 37), a single judge of the Supreme Court may exercise the powers of the Supreme Court. Under s 10(2) of the Act, if the application is refused, a party then may apply to the Supreme Court. Under O 12 of the National Court Rules, a party may apply to the National Court to set aside an order made by another National Court if it is a default judgment or made ex parte.

Section 155(4) of the Constitution has been considered in a different context. In Avia Aihi v The State [1981] PNGLR 81, the question there was whether, having lost a statutory right of appeal, a convicted person could restore such right under the words “such other orders as are necessary to do justice in the circumstances of a particular case”. The Court held that this provision does not give such a power. This was followed in a case dealing with a different situation but similar in nature. SCR No 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150.

In summary, these cases establish that the first limb of s 155(4) gives the Supreme Court and the National Court power to make orders in the nature of prerogative writs and the second limb power to make other orders which are remedial, adjectival as well as procedural in nature.

In so far as power is given to make these orders in reviewing exercise of power by the courts, this supervisory jurisdiction is exercised over inferior courts. That is the nature of prerogative writs. It cannot be used by the same court to review a decision of the same level of court. If the constitutional framers intended this, they would have said so expressly.

The applicant can find very little assistance in s 155(4) of the Constitution.

I am of the opinion that the applicant in this case has his remedies outside the judicial system.

This matter could be investigated under a Commissions of Inquiry Act (Ch No 31) as to the nature of the fresh evidence. Upon coming to a conclusion, a recommendation could be made to the Minister for Justice to exercise his discretion to release the accused on license under the Code. Alternatively, an application could be made to the Power of Mercy Committee.

I would dismiss the application.

LOS J: I have read the draft judgment of the Deputy Chief Justice and I have nothing further to add.

SHEEHAN J: I have read the draft judgment of the Deputy Chief Justice and I have nothing further to add.

Application refused

Lawyer for the applicant: Joseph Mek Teine.

Lawyer for the State: Public Prosecutor.