Avia Aihi v The State (No 2) [1982] PNGLR 44

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kearney DCJ, Greville–Smith J, Andrew J, Kapi J
• Judgment Date: 26 February 1982
• Citation: [1982] PNGLR 44
• Court: Supreme Court
• Year: 1982
• Judgement Number: SC218

Full Title: Avia Aihi v The State (No 2) [1982] PNGLR 44

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

Judgment Delivered: 26 February 1982

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

AVIA AIHI

V

THE STATE

(NO. 2)

Waigani

Kidu CJ Kearney DCJ Greville Smith Andrew Kapi JJ

5 April 1981

2 October 1981

26 February 1982

APPEAL — Inherent jurisdiction to review — Leave to appeal against sentence out of time — Principles applicable — Constitution s. 155 (2) (b).

CRIMINAL LAW — Sentencing — Wilful murder — Principles applicable.

COURTS AND JUDGES — Supreme Court — Precedent — Dissenting judgment on preliminary issue — Whether dissenting judge bound by majority view in further proceedings.

On an application for leave to appeal against sentence pursuant to s. 155 (2) (b) of the Constitution, where the sentence was life imprisonment for wilful murder, where the 40 day time in which to appeal limited by the Supreme Court Act 1975 had expired and where the time since the sentence was imposed exceeded 14 months:

Held

(1) (Per Kidu C.J. and Andrew J., Greville Smith J. dissenting, Kearney Dep. C.J. not deciding.) An applicant who seeks to invoke the inherent jurisdiction of the Supreme Court to review all judicial acts of the National Court under s. 155 (2) (b) of the Constitution must show convincing reasons before the Court will exercise that jurisdiction.

(2) Where the application is for leave to appeal against sentence not only should there be a satisfactory explanation for the delay but the applicant must show that legal grounds exist which would merit an appeal which grounds will generally involve questions of excessiveness.

R. v. Tyrrell [1974] A.C.L. 74.164.

(3) (Per Kidu C.J. and Andrew J.) In sentencing for wilful murder the principles enunciated in Goli Golu v. The State [1979] P.N.G.L.R. 653 should be applied.

(4) (Per Kapi J.) A member of the Full Court who dissents on a preliminary question of legal principle may, in further proceedings where that legal principle is relevant, follow either his own dissenting view or the majority view.

R. v. Shannon (1979) 21 S.A.S.R. 442 at p. 461 adopted and applied.

Cases Cited

Avia Aihi v. The State [1981] P.N.G.L.R. 81.

Goli Golu v. The State [1979] P.N.G.L.R. 653.

Naden v. King [1926] A.C. 482.

R. v. Bertrand (1867) 16 E.R. 391.

R. v. Liosatos [1964] S.A.S.R. 40.

R. v. O'Keefe [1979] V.R. 1.

R. v. Ramsden [1972] Crim. L.R. 547.

R. v. Shannon (1979) 21 S.A.S.R. 442.

R. v. Tyrrell [1974] A.C.L. 74.164.

Rooney (No. 2) Re; The Public Prosecutor v. Nahau Rooney [1979] P.N.G.L.R. 448.

Secretary for Law, The v. Tisunkac Nawok Domstock [1974] P.N.G.L.R. 246.

Varney v. The Queen [1964] V.R. 143.

Application

This was an application following the decision in Avia Aihi v. The State [1981] P.N.G.L.R. 81 for leave to appeal against a sentence of life imprisonment for wilful murder pursuant to the inherent review jurisdiction under s. 155 (2) (b) of the Constitution.

Counsel

K. Wilson and S. Cox, for the appellant.

L. Gavara-Nanu, for the respondent.

Cur. adv. vult.

26 February 1982

KIDU CJ ANDREW J: The applicant applied for leave to appeal out of time. She did this under s. 155 (2) (b) of the Constitution — ie. she prayed this Court to review the sentence of life imprisonment imposed on her in March, 1979 by the National Court. This Court, on 27th March, 1981, granted her leave to adduce evidence by affidavit in support of an application for leave to appeal, and to appeal. The application was made in April and in October last the court granted leave, for reasons to be later published. This we now do.

She had no right of appeal. This Court had already ruled so in Avia Aihi v. The State [1981] P.N.G.L.R. 81. In that case, however, the majority of the court ruled that the court had a discretionary power under s. 155 (2) (b) to review judicial acts of the National Court, irrespective of s. 27 of the Supreme Court Act.

This was the first time the court had been asked, in effect, to allow an appeal to be instituted out of time under s. 155 (2) (b) of the Constitution.

It must be emphasized from the outset that the power vested in this Court by s. 155 (2) (b) will not be exercised as a matter of course. The reason is quite obvious. Where statutory appeal provisions are not complied with there must be shown convincing reasons why this Court should exercise its constitutional power. For instance, in this case the applicant was convicted by the National Court in March 1979. Section 21 (d) and s. 27 of the Supreme Court Act 1975 ("the Act") provide:

21 (d) A person convicted by a judge of the National Court may appeal to the Supreme Court:

(d) with the leave of the court, against the sentence passed on his conviction unless the sentence is one fixed by law.

27 (1) Subject to Subsection (2), where a person convicted desires to appeal or to obtain leave to appeal to the Supreme Court, he shall give notice of appeal, or notice of his 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 failed to comply with the above provisions. She filed an application for leave to appeal fourteen months after her conviction. She, therefore, had no right to appeal. For her to be allowed to have her sentence (of life imprisonment) reviewed by this Court pursuant to s. 155 (2) (b) she must explain satisfactorily why she did not comply with s. 27 of the Act and also show that her case merits a hearing by this Court. What the pre-Independence Full Court said in The Secretary for Law v. Tisunkac Nawok Domstock [1974] P.N.G.L.R. 246, at p. 248 (Frost A.C.J, Clarkson J. and Williams J.) in an application to extend time of appeal under the then s. 34 (2) of the then Supreme Court (Full Court) Act 1968 is, in our opinion, applicable:

"... After the conclusion of the argument we asked counsel to submit further submissions concerning the principles which should guide the Court in applications of this kind. From authorities cited before us we take the proper construction of s. 34 (2) to be that an extension of time will not be granted as a matter of course, but that the Court will in every case require substantial reasons to be advanced before granting such a concession. R. v. Sunderland ( (1927) 28 S.R. (N.S.W.) 26, at p. 27). There are also two useful passages in the judgment of the Full Court in The Queen v. Brown ( [1963] S.A.S.R. 190). In that case the Court had to consider the effect of a section similar to s. 34 (2). The passages are as follows:

'When the time prescribed by the Act has expired the party convicted has lost his right to appeal, and it is for the Court to say whether, taking all the circumstances into account, it is in the interests of justice that he should be permitted to institute and pursue his appeal.' (At p. 191.)

'It seems to us that, if we have jurisdiction to sanction the institution of an appeal at this stage, then, in the exercise of our discretion, we ought not to do so unless we are satisfied that there is, at the least, grave reason to apprehend that justice has actually miscarried, that is to say, that the conviction was contrary to the truth and justice of the case.' (At p. 193.)

However, in every case it is a matter of discretion for the Court. R. v. Ramsden ( [1972] Cr. L.R. 547). These principles, in our opinion, are applicable to the Papua New Guinea section."

Section 32 (2) of the then Supreme Court (Full Court) Ordinance 1968 provided as follows:

"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 Full Court or a Judge."

What the pre-Independence Full Court said above is similar to what other courts outside Papua New Guinea have said in considering similar appeal provisions and we cite two of these opinions by way of analogy.

In Varney v. The Queen [1964] V.R. 143 at p. 144, the Supreme Court of Victoria said as follows:

"It is apparent that an application of this nature will not be granted as of course. It must obviously lie with an applicant appealing to discretion to persuade the court that the circumstances are such that the discretion should be exercised in his favour. A number of cases were cited to me indicating the approach of the court. In R. v. Jeffries [1949] N.Z.L.R. 595, the Court of Appeal said that 'special and substantial reasons' must be advanced. The report of R. v. Rhodes in (1910) 5 Cr. App. Rep. 35, speaks of 'satisfactory reasons', and the report of the same case in (1910), 74 J.P. 380, speaks of 'substantial reasons'. In R. v. Sunderland (1927), 28 S.R. (N.S.W.) 26, the Full Court of New South Wales said that 'in view of the...