Bernard Juali v The State (2001) SC667

• Jurisdiction: Papua New Guinea
• Judge: Los J, Sevua J, Kandakasi J
• Judgment Date: 30 August 2001
• Citation: (2001) SC667
• Court: Supreme Court
• Year: 2001
• Judgement Number: SC667

Full Title: Bernard Juali v The State (2001) SC667

Supreme Court: Los J, Sevua J, Kandakasi J

Judgment Delivered: 30 August 2001

SC667

PAPUA NEW GUINEA

[In the Supreme Court of Justice in Waigani]

SCRA NO. 43 of 1998

BERNARD JUALI

Appellant

V

THE STATE

Respondent

WAIGANI : LOS, SEVUA & KANDAKASI, JJ.

2001 : APRIL 25

AUGUST 30

APPEALS — Application to dismiss for want of prosecution — Appellant insisting on inclusion of evidence not forming part of evidence in the Court below without any legal basis — Conceding to having no basis for that position at hearing of application — Substantial periods of time allowed to pass without any action — Failing to reply to correspondence — Undue delay established — No satisfactory explanation for the delay offered by the appellant or his lawyer — Want of Prosecution made out — Appeal dismissed for want of prosecution — Supreme Court Rules O. 7 r. 53.

Cases Cited

General Accident Fire & Life Assurance Corporation Ltd [1990] PNGLR 331

Burns Philip (New Guinea) v. George [1983] PNGLR 55

Melchior Pep v. Puri Ruing& Electoral Commission (22nd June 1999) SC614

Martha Limitopa v. The State & Anor [1988-89] PNGLR 364

Counsels

Mr. W.Arua for the Appellant

Mr. R. Auka or the Respondent

30th August 2001

LOS, J: The appellant is serving a life sentence for wilful murder of his wife. He has lodged an appeal against the decision on 2nd June 1998 through his lawyer. The applications before the court were firstly by the Respondent to dismiss the appeal for want of prosecution. The second one was by the Appellant seeking to dispense with the requirement for certification of the appeal book, a reason forming the basis of the first application. My brothers Sevua and Kandakasi JJ have adequately covered the facts and law on application for want of prosecution. They concluded that the appellant and his lawyer had failed to exercise due diligence and therefore the appeal must be dismissed. I differ however, in two respects. Firstly, I differ in relation to the lawyer's explanation and the appellant's explanation as to the delay. The Appellant was incarcerated. I consider that despite being a policeman before, the appellant could not be expected to have a freedom to do anything in a bigger way to prosecute his appeal. Secondly, his lawyer had some explanation and that I must accept in the circumstances of this case. The emotional and explosive nature of the case is self-explanatory. There were numerous activities obstructive in nature against the appellant. The appellant's lawyer was threatened and attacked. Thirdly I do not consider that in a criminal conviction case, the fact that a person could lodge a claim against his lawyer on a ground of professional negligence should be comforting and supportive to an application for want of prosecution by the respondent. The case cited, namely, Martha Limitopa v. PNG (1988-8) PNGLR 364 and most of other cases referred in that case deal with civil cases where monitory gain or compensation would satisfy many claims, in my view. In this case monetary compensation would have little or bear little relevance to the appellant who has been sentenced to spend his remaining life in prison. In fact I consider that money consideration should not obstruct any right of appeal at all. The last consideration, in my view is the fundamental right to come to court whether in a first instance or on appeal by a person charged with an offence. That right is protected and enhanced under section 37(15) of the Constitution. The section says —

''Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law''

I acknowledge that in numerous cases the phrase ''according to law'' has been interpreted to include the provisions of various acts, regulations and rules. So an argument may be raised that to be entitled to a constitutional right one must first comply with the rules and regulations. Although I consider that rules and regulations are important to bring about the issues in an orderly fashion to assist all the parties so that no party is surprised by it, they cannot be used to frustrate, inconvenience or bar any person's substantive constitutional right to have access to the highest court, namely, the Supreme Court of Papua New Guinea.

The last issue I want to address is whether the circumstances shown to be relied on as forming the bases of want of prosecution gives whole of the burden on the appellant to bear. Putting aside any question of legality or reasonableness, the delay was caused by a dispute between the appellant's lawyer and the Respondent's lawyer on inclusion and variation of placement of certain documents. The dispute was between both parties. Placement of certain documents in 'right' place is a minor matter for convenience. That can be subject of a peremptory order pursuant to Rule 53(b) of the Supreme Court Rules. But the major one related to whether the record of sentences imposed on the Co-offenders could be included. A direction should have been sought by either party. There would not be any real prejudice on either party. I accept that in an application for want of prosecution, lack of prejudice to a respondent is peripheral to the public interest on reaching finality of a case. That would in my view be more relevant to a civil case when an appeal may be just an attempt to delay a successful party from enjoying the fruits if its success. This is a criminal case and I have addressed the right of a person in a criminal case earlier.

I would therefore refuse to grant an order to dismiss the appeal for want of prosecution. I would order that the requirement for certification of the appeal book be dispensed with. I would order that preparation of the appeal book be completed and the appeal be set down for hearing at the next sittings of the Supreme Court.

SEVUA & KANDAKASI JJ: This Court heard two applications on the 25th April 2001. The first was the Respondent's seeking a dismissal of the proceedings for want of prosecution within the meaning of Order 7 Rule 53 of the Supreme Court Rules (Rules). The second was the appellant's seeking to dispense with the requirements for certification of the appeal book. The appellant decided not to pursue his application in the course of the hearing after conceding to having no basis to insist upon an inclusion in the appeal book, evidence not led and admitted into evidence at the trial. The draft appeal book also had other defects, which needed to be corrected. He then argued that the delay in promptly prosecuting his appeal was caused by the respondent's refusal to certify the appeal book. The respondent argued that, its refusal was legitimate and that the appellant failed to prosecute his appeal promptly and failed to reply to correspondence and take all the steps that should have been taken promptly. That amounted to a want of prosecution within the meaning of O.7 r. 53 of the Rules. The issue to be determined therefore, is this, has the appellant failed to prosecute his appeal promptly within the meaning of O.7 r. 53 of the Rules.

Relevant Chronology and or Facts

On 24th April 1998, the appellant was convicted and sentenced to life imprisonment for the wilful murder of his wife. He lodged an appeal against that decision on 2nd June 1998, through J.F.Aisa & Associates Lawyers. The Public Prosecutor filed an appearance for the respondent on 11th June 1998. By letter dated 16th November 1999 (5 months later), the appellant requested the Registrar of the Supreme Court to provide copies of a number of documents. He does not say if those documents were received, but did compile a draft appeal book sometime later.

The draft appeal book was sent to the respondent to certify its correctness. The respondent refused to do that because of a number of errors. The main one was the inclusion of certain documentary evidence not forming part of the evidence before the trial judge. A letter confirming that...