Danny Sunu, Namabai Walter, Iku Gagoro and Philip Haro v The State [1984] PNGLR 305

• Jurisdiction: Papua New Guinea
• Judge: Pratt J, McDermott J, Woods J
• Judgment Date: 02 November 1984
• Court: Supreme Court
• Docket Number: In the Matter of an application for Review under s155(2)(b) of the Constitution
• Judgement Number: SC279

Full Title: In the Matter of an application for Review under s155(2)(b) of the Constitution; Danny Sunu, Namabai Walter, Iku Gagoro and Philip Haro v The State [1984] PNGLR 305

Supreme Court: Pratt J, McDermott J, Woods J

Judgment Delivered: 2 November 1984

SC279

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF AN APPLICATION FOR REVIEW UNDER S. 155 (2) (B) OF THE CONSTITUTION

AND IN THE MATTER OF DANNY SUNU,NAMABAI WALTER, IKU GAGORO AND PHILIP HARO

V

THE STATE

Waigani

Pratt McDermott Woods JJ

26 July 1984

2 November 1984

PRACTICE AND PROCEDURE — Supreme Court — Application for review of decision of National Court under s. 155 (2) (b) of the Constitution -Form of application — To be distinguished from appeal.

CONSTITUTIONAL LAW — Powers of Supreme Court — Review of judicial acts of National Court — Nature of application — Principles applicable — Constitution, s. 155 (2) (b).

COURTS AND JUDGES — Supreme Court — Review of decision of National Court — Nature of application — Principles applicable — Constitution, s. 155 (2) (b).

Held

(1) Where it is intended to apply to the Supreme Court for review of a decision of the National Court under s. 155 (2) (b) of the Constitution the procedure to be adopted is an application to the Supreme Court in those terms as distinct from an appeal.

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

(2) The discretionary power to grant a review of a decision of the National Court under s. 155 (2) (b) of the Constitution should be exercised only where:

(a) it is in the interests of justice;

(b) there are cogent and convincing reasons or exceptional circumstances; and

(c) there are clear legal grounds meriting a review of the decision.

Avia Aihi v. The State [1981] P.N.G.L.R. 81 and Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44, adopted and applied.

(3) In deciding whether there are cogent and convincing reasons the following matters are relevant:

(a) the reasons for failing to appeal within time; and

(b) the merits of the case to be argued.

(4) In the circumstances the application to review sentences of five years imprisonment imposed under the minimum penalties legislation in respect of charges of breaking and entering a warehouse and stealing therefrom, should be granted, the sentences quashed and the matter remitted to the National Court for sentence in accordance with the decision in The State v. Danny Sunu [1983] P.N.G.L.R. 396.

Cases Cited

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

Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44.

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

The State v. Danny Sunu [1983] P.N.G.L.R. 396.

Application for Review

This was an application for review of a decision of the National Court under s. 155 (2) (b) of the Constitution. For earlier proceedings in which a question of law relevant to the application was determined see The State v. Danny Sunu [1983] P.N.G.L.R. 396.

Counsel

N. Kirriwom, for the applicant.

V. Noka, for the respondent.

Cur. adv. vult.

2 November 1984

PRATT MCDERMOTT JJ: The surrounding facts are set out in the judgment of Woods J.

The matter originally came before us in the form of an appeal. It appears counsel anticipated a conversion of the appeal into a review under the Constitution, s. 155 (2) (b), thus following a course similar to that which developed by sheer necessity in the pioneering case of Avia Aihi v. The State [1981] P.N.G.L.R. 81. As Kearney Dep. C.J. said at 92: "... the process of review is equivalent to the process of appeal". The order made in that case was one granting leave for the applicant to file an affidavit in support of her application for leave to appeal. Subsequently, such leave was granted to her: Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44.

At the outset it is desirable to attempt some clarification of terminology. The use of terms more appropriate to an appeal tend not only to confuse but have achieved that very result in the present case. It is disconcerting to say the least for an Appeal Court to find that although it has before it a document entitled "Appeal Book", complete with Supreme Court Appeal Number, it is not the intention of counsel to argue an appeal at all, but instead to make an application for review under the Constitution. Whilst the majority view on matters of principle is clear enough in Avia Aihi v. The State, there is an inherent conflict in the terminology used by Kidu C.J. and Andrew J. on the one hand, and that of Kearney Dep. C.J. and Kapi J. (as he then was) on the other. With great respect it seems to us that an adoption of the views of the former will eradicate the present confusion. To that end the court suggested to counsel on the first day of hearing that an adjournment should be granted in order to consider the avisability of drawing fresh documentation to be entitled "Application for review under section 155 (2) (b) " and such is the application presently before us. The appeal itself has already been dismissed as it was clearly out of time for reasons which will emerge presently.

In Avia Aihi v. The State [1981] P.N.G.L.R. 81 at 88 Kidu C.J. concludes his judgment with the following:

"I concur with the Deputy Chief Justice that this Court has discretionary power given to it by s. 155 (2) (b) of the Constitution and the applicant should be required to convince the Court why she should have this discretion exercised in her favour to allow her leave to apply for her sentence to be reviewed."

Although his Honour agreed with the order which was eventually made in the case, and although Andrew J. agreed with "the outline of the procedure to be adopted", it is clear from the general thrust and tenor of the two judgments that a definite distinction existed in the minds of their Honours between an appeal and a review. Whilst dealing with the question of inherent jurisdiction in Avia Aihi v. The State, Andrew J. consistently refers not to appeals but to the "power to review". In their joint judgment Avia Avia v. The State (No. 2) at 45, although their Honours once again referred to an appeal in which leave has been sought there is nevertheless further reference to the discretionary power of the Court to review acts of the National Court irrespective of the terms of s. 27 of the Supreme Court Act 1975. After examining several authorities they specifically referred to an application "under s. 155 (2) (b) of the Constitution to this Court to review his or her sentence".

We consider that as an extension of the reasoning of the Chief Justice and Andrew J., any reference to an appeal or leave to appeal should be studiously avoided. Of course what Avia Aihi v. The State [1981] P.N.G.L.R. 81 did was to break new ground completely. Just how new can best be gauged by the strong dissenting judgment of Greville-Smith J. The case clearly established not only that a right of judicial review is given to a citizen quite apart from the right to appeal in the ordinary accepted sense of that word, but further established the principles upon which such right may be exercised. We propose to ascertain what should be done in the present application in the light of those principles.

GRANTING OF LEAVE TO REVIEW

It is clear from the format of our appeal legislation with its hierarchy of courts, from the wording of the Constitution, and especially from the judgment of their Honours in the Avia Aihi cases that any applicant for a review under s. 155 (2) (b) must first and foremost convince the court, despite a failure to exercise a right to appeal against the decision which is disputed, that it should exercise its inherent and discretionary power in favour of the application. It is equally clear that such power will be exercised only in "exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity" (per Kearney Dep. C.J. in Avia Aihi v. The State [1981] P.N.G.L.R. 81 at 93), or that there are "cogent and convincing reasons and exceptional circumstances" (per Kidu C.J. and Andrew J. in Avia Aihi v. The State (No. 2) at 47). The principle is that the discretion will be exercised only where it is in the interests of justice, and the court is satisfied there is "grave reason to aprehend that justice has actually miscarried, that is to say, that the conviction was contrary to the truth and justice of the case": see Kidu C.J. and Andrew J. in Avia Aihi (No. 2) at 46 adopting what the pre-Independence Full Court said in The Secretary of Law v. Tisunkac Nawok Domstock [1974] P.N.G.L.R. 246 at 248.

In determining whether or not there are "cogent and convincing reasons" we agree with the approach of Kapi J. in Avia Aihi (No. 2) at 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...