Avia Aihi v The State (No 1)

• Jurisdiction: Papua New Guinea
• Judge: Kapi J:
• Judgment Date: 27 March 1981
• Court: Supreme Court
• Judgement Number: SC195

Supreme Court: Kidu CJ, Kearney DCJ, Greville–Smith J, Andrew J, Kapi J

Judgment Delivered: 27 March 1981

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

AVIA AIHI

V

THE STATE

Waigani

Kidu CJ Kearney DCJ Greville Smith J Andrew J Kapi J

28 July 1980

28-29 August 1980

27 March 1981

CRIMINAL LAW — Appeal — Application for leave to appeal against sentence — Application outside time limit prescribed by Supreme Court Act — Right of appeal lost — Inherent jurisdiction to hear application — Supreme Court Act 1975, ss. 21, 27 — Constitution ss. 37 (15), 37 (16), 57Infra pp. 83, 84.1, 155Infra p. 84.2, 162.

CRIMINAL LAW — Appeal against sentence — "Appeal" — "Review" — No distinction — Constitution ss. 37 (15), s. 37 (16).

CRIMINAL LAW — Appeal against sentence — Right to "appeal" against sentence — "Review" of sentence — Right existing at time of conviction — No loss of this right — Constitution s. 37 (16).

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Right of appeal against sentence — Loss of right under Supreme Court Act — "Inherent" jurisdiction of Court — Constitution ss. 37 (15), 37 (16), 57Infra pp. 83, 84.3, 155Infra p. 84.4, 162.

STATUTES — Interpretation — "According to law" — Refers to whole body of law — Constitution ss. 9, s. 37 (15).

COURTS AND JUDGES — Jurisdiction — "Inherent" jurisdiction — To give way to statutory grant — Constitution s. 155.

WORDS AND PHRASES -"Appeal" — "Review" — No distinction — Constitution ss. 37 (15), 37 (16).

WORDS AND PHRASES — "According to law" — Refers to whole body of law — Constitution ss. 9, 37 (15).

WORDS AND PHRASES — "Inherent jurisdiction" — Nature of and meaning of — Constitution s. 155.

Section 27 of the Supreme Court Act, 1975 which provides that a convicted person shall give notice of appeal or notice of application for leave to appeal in the manner prescribed by the Rules of Court, within forty days after the date of conviction, validly regulates the right to "review of sentence... according to law" guaranteed by s. 37 (15) of the Constitution.

The right to appeal or to apply for leave to appeal is lost on failure to comply with s. 27 of the Supreme Court Act.

Section 155 (4) of the Constitution, which confers an inherent jurisdiction to make such orders as are necessary to do justice in the circumstances, does not empower the Court to waive non compliance with s. 27 of the Supreme Court Act.

Saki v. The State, [1980] P.N.G.L.R. 33;

Mathias Evertz v. The State, [1979] P.N.G.L.R. 174; and

Launce Vetari v. The State (Unreported Supreme Court judgment SC 156 of 1979) distinguished.

(Greville Smith J. and Kapi J. dissenting.) Section 155 (2) (b) of the Constitution, which gives the Supreme Court an "inherent power to review all judicial acts of the National Court", however, invests the Supreme Court with an unfettered discretionary jurisdiction to hear an appeal and an application for leave to appeal from the National Court, although the applicant has lost his right to appeal or to apply for leave to appeal. The discretion should be exercised only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, the onus being upon the applicant.

(Per Kidu C.J., Kearney Dep. C.J. and Andrew J.) Section 155 (2) (c) of the Constitution, which gives the Supreme Court "such other jurisdiction and powers as are conferred on it by this Constitution or any other law", is a separate and distinct grant of jurisdiction from that granted in s. 155 (2) (b).

(Per Kidu C.J. and Kapi J., with whom Kearney Dep. C.J. agreed.) There is no distinction between the right to "review" of conviction and sentence under s. 37 (15) of the Constitution and the right to "appeal" against conviction and sentence under s. 37 (16).

(Per Kidu C.J., with whom Kearney Dep. C.J. agreed.) Section 37 (16) of the Constitution ensures that a convicted person is not deprived of any right of appeal which existed at the time he was convicted.

(Per Kearney Dep. C.J. and Kapi J.) The expression "according to law" in s. 37 (15) of the Constitution refers to the whole body of the law as defined in s. 9 of the Constitution.

(Per Andrew J.) An "inherent" power must, in general, give way to any statutory provision with which it is in conflict.

Discussion by Andrew J. of the meaning and nature of the "inherent" jurisdiction of the Court.

Application for Leave to Appeal against Sentence.

This was an application for leave to appeal against a sentence of life imprisonment imposed by the National Court on 17th March, 1979. The notice of application for leave to appeal against sentence was filed in May, 1980.

Counsel:

K. A. Wilson and S. J. Cox, for the applicant.

W. J. Karczewski, for the State.

Cur. adv. vult.

27 March 1981

KIDU CJ: On 8th May, 1980 the Public Solicitor filed a notice of application for leave to appeal, on behalf of Avia Aihi (herein the "applicant"), against a sentence of life imprisonment imposed on her by the National Court on 17th March, 1979.

The question before this Court is whether the court has power to allow her to apply for leave to appeal out of time — more than twelve months after her conviction and sentence.

Section 21 of the Supreme Court Act 1975 allows a convicted person to appeal against his sentence with the leave of the court. Section 27 of the Supreme Court Act 1975 then provides as follows:

" (1) Subject to Sub-section (2), where a person convicted decides to appeal or to obtain leave to appeal to the Supreme Court, he shall give notice of appeal, or notice of application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of conviction.

(2) The time within which notice of appeal, or notice of an application for leave to appeal, may be given may be extended at any time by the Supreme Court on application made within 40 days after the date of conviction."

The applicant did not comply with s. 27 — that is, no notice of application for leave to appeal or extension of time, was applied for within forty days after her conviction. This was through no fault of her own; she was unable to obtain the services of a lawyer to help her comply with requirements of s. 27 of the Supreme Court Act until more than twelve months after her conviction.

Counsel for the applicant submitted that s. 27 of the Supreme Court Act does not operate to bar his client from appealing against her sentence because the right of appeal against conviction and sentence is a guaranteed right under s. 37 (15) of the Constitution and the Supreme Court should protect this right as required by s. 57 of the Constitution. In the alternative it was argued that the Supreme Court had power under s. 155 (4) of the Constitution to make an order to enforce this right. Counsel also submitted that the Supreme Court has a discretion under s. 155 (2) (b) to allow the applicant to have her conviction reviewed.

Section 37 (15), s. 57 and s. 155 (4) of the Constitution read as follows:

"37 (15) Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law."

"57. ENFORCEMENT OF GUARANTEED RIGHTS AND FREEDOMS.

(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2) For the purposes of this section —

(a) the Law Officers of Papua New Guinea; and

(b) any other persons prescribed for the purpose by an Act of the Parliament; and

(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,

have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.

(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in...