Camillus Parang v the State (2010) SC1068

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, Batari, Yagi, JJ
• Judgment Date: 28 July 2010
• Court: Supreme Court
• Citation: (2010) SC1068
• Docket Number: SCR NO. 29 OF 2007
• Year: 2010
• Judgement Number: SC1068

Full Title: SCR NO. 29 OF 2007; Camillus Parang v the State (2010) SC1068

Supreme Court: Kirriwom, Batari, Yagi, JJ

Judgment Delivered: 28 July 2010

SC1068

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 29 OF 2007

BETWEEN:

CAMILLUS PARANG

Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Kokopo: Kirriwom, Batari, Yagi, JJ

2008: 26 November

2010: 28 July

Judicial Review – Application for Judicial Review - Conviction - Judicial Review of criminal cases – Absolute discretion in Supreme Court to review decisions of National Court – Principles applied.

Judicial Review - Application for Judicial Review - Conviction – Application to quash conviction – Delay – Notice of Appeal lodged outside time to appeal – Applicant lost right to appeal – Whether cogent or convincing reasons for delay or exceptional circumstance or matters in the interest of justice or clear legal ground exist to merit a review – Onus on applicant to show cogent and convincing reasons for delay – Applicant to further show exceptional circumstances meriting a review - Application refused – Constitution s. 155 (2)(b) - Supreme Court Act.

FACTS

The applicant was convicted by the Kokopo National Court on one count of indecent act directed at a child under the age of 16 years and one count of rape, both counts committed in aggravating circumstances. He did not appeal the convictions until 4 months after the expiry date of the 40 days within which to appeal. Two days before the hearing of this application (more than 2 years after conviction and sentence), the applicant filed amended grounds of appeal against his conviction.

HELD

1. Applicant in a judicial review application must show cogent or convincing reasons or exceptional circumstance for delay or there are matters in the interest of justice, the conviction should be reviewed or there are clear legal ground meriting a review

2. Applicant has not shown cogent or convincing reasons or exceptional circumstance or there are matters in the interest of justice, or clear legal grounds exist to merit a review.

Cases cited:

Application by Wili Kili Goiya [1991] PNGLR 170

Avia Aihi v The State (No.1) [1981] PNGLR 1

Avia Aihi v The State (2) [1981] PNGLR 81

Danny Sunu v The State [1984] PNGLR 305

Evertz v The State [1979] PNGLR 174

John Anis Pok v The State (1983) SC 253

Mark Bob v The State (2005) SC 808

Schubert v The State (1979) PNGLR 66

Counsels:

Applicant In-person

C. Sambua, for the State/Respondent

28 July, 2010

1. BY THE COURT: The applicant, Camillus Parang was presented before Justice Lay at the Kokopo National Court charged with four counts of indecent act directed at a child under the age of 16 years contrary to s.229(1) the Criminal Code (Sexual Offences and Crimes against the Children) Act, 2002 (the Code as amended). He was further charged with one count of sexual penetration without consent (rape) under s.347 (1)(2) of the Code as amended. On 20th November, 2006 following a trial on his plea of not guilty, the National Court convicted him on one count only of indecent act and on the count of rape. For the indecent act, the Court sentenced Camillus

Parang to four years and for the rape conviction, he was sentenced to ten years imprisonment. The sentences were ordered to run concurrently.

2. In this application, Camillus Parang applies for review of his conviction only. He does not contest his sentence.

Brief Facts supporting the convictions and sentence

3. The Applicant was head teacher at Rakunai Primary School in 2003. Between the months of April and October, he summoned the female victim student into his Office on several occasions under the auspices of conducting sex education lessons. On each occasion he would ask her to remove her clothes. In respect of the indecent act charge, whilst teaching the victim to masturbate, he touched her breasts and vagina with his fingers.

4. The rape conviction was founded on the same set of facts that the prisoner actually placed his finger inside the victim’s vagina. Both offences were proved to have been committed in breach of a relationship or position of trust, authority and dependency. The Applicant obtained the co-operation of the victim from the outset of the meeting by swearing her to secrecy with respect to the meetings, to the extent of having her hold the Bible.

5. His explanation was that the victim had been raped and young persons who had gone through that experience become insecure, permissive and sometimes careless in their sexual behaviour. He was therefore, instructing her on the option of masturbation as a way of relieving or satisfying her sexual urges without the risk of pregnancy, disease etc., and not completing school as a result.

Amended Grounds of “Appeal”

6. In his amended grounds to this application, the Applicant asserted that:

(i) The National Court Judge erred in both facts and law by relying on the evidence of the prosecutrix wherein the prosecutrix evidence to the police and eventually in Court were inconsistent.

(ii) The Court erred both in fact and law when it relied on the evidence of the prosecutor’s witness, Regina Mansui whose evidence was unreliable because she had an interest in the outcome of the case.

The Case – Whether an Appeal or an Application for Judicial Review

7. Camillus Parang conducted his case before this Court as a normal appeal. It is not. He lost his right to appeal or to seek leave to appeal when he did not comply with s.29 of the Supreme Court Act, Chapter 37 to appeal the National Court decision within 40 days after the date of conviction. He was convicted on 20th and sentenced on 23rd November, 2006 and some 4 months later on 12 April, 2007 he filed what purported to be a Notice of Appeal. Two years later, he filed an Amendment to the purported Notice of Appeal. The initial Notice of Appeal had by then been converted, quite appropriately so, to an application for Judicial Review under reference, SC Review No. 29 of 2007 (p.5 of the Review Book).

The law on Applications for Judicial Review

8. The principles of law governing Judicial Review applications are relevant and pertinent to the hearing in this proceeding. More specifically, the principles applicable to a criminal case have been settled in the land mark case of Avia Aihi v. The State (2) [1981] PNGLR 81, the effect of which was summarized in Application by Jeffery Balakau (1996) unreported, SC 529, 25th October 1996 in this way

“A person affected or aggrieved by the final decision of the National Court and lacking now any statutory right to have that decision reviewed, may nevertheless make application to the Supreme Court to exercise its inherent and discretionary power to review that judicial decision under s.155(2)(b) of the Constitution. This inherent or right in such an aggrieved applicant is the same right which enabled Avia Aihi to make application for leave to apply for review by the Supreme Court”.

9. The case of Avia Aihi v. The State established that, the Supreme Court is vested absolute discretion under s.155(2)(b) of the Constitution to review all judicial acts of the National Court even that in which the applicant had lost all statutory right to appeal. The Applicant must however show cogent and convincing reasons and exceptional circumstances where some substantial injustice is manifest or the case is of special gravity, before leave can be granted in his favour.

10. These principles were followed and applied in the Criminal Appeal case of Danny Sunu v. The State [1984] PNGLR 305 and a host of cases that have since followed. In Danny Sunu v. The State Pratt and McDermott JJ, stated in relation to “cogent and convincing reasons” at 307:

“We agree with the approval of Kapi, J in Avia Aihi v. the State (2) at p.61, that the merits of the application or perhaps rather more specifically, the merits of the case to be argued must form part of the “cogent and convincing” reasons. After all, if the matter, the subject of the application has no merit whatsoever, it is impossible to see how there could be any cogent or convincing reasons for granting a Review. Therefore, the first thing to be decided by this Court, is whether the applicants have made out sufficient reasons and exceptional circumstances for the Court to grant a hearing....”

11. It is clear from the authoritative cases of Avia Aihi v The State and Danny Sunu v The State that, the review provisions in s. 155 (2)(b) of the Constitution are not to be invoked unless an applicant demonstrates sufficient reasons for allowing the appeal time to lapse without exercising his or her right of appeal. It must be shown that exceptional circumstances exist to justify resort to the judicial review process under s. 155 (2)(b). He or she must further demonstrate the merits of the grounds to be argued because, “…. if the matter, the subject of the application has no merit whatsoever, it is impossible to see how there could be any cogent or convincing reasons for granting a Review.” (Danny Sunu v The State).

Application of Judicial Review Principles - Issue of Delay

12. These proceedings...