Lionel Gawi v The State (2006) SC850

• Jurisdiction: Papua New Guinea
• Judge: Kapi CJ Injia DCJ Los J Hinchliffe J Salika J
• Judgment Date: 01 December 2006
• Citation: (2006) SC850
• Docket Number: SCRA 39 of 2005
• Court: Supreme Court
• Year: 2006
• Judgement Number: SC850

Full Title: SCRA 39 of 2005; Lionel Gawi v The State (2006) SC850

Supreme Court: Kapi CJ, Injia DCJ, Los J, Hinchliffe J, Salika J

Judgment Delivered: 1 December 2006

SC850

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 39 OF 2005

BETWEEN:

LIONEL GAWI

Appellant

AND:

THE STATE

Respondent

Waiagni: Kapi CJ., Injia DCJ.,

Los J., Hinchliffe J.,

Salika J.

2006: 24 April,

1 December

APPEAL – Application for Leave to appeal against Sentence – S 22 (d) of the Supreme Court Act – Whether the requirement for leave is inconsistent with s 37 (15) and (16) of the Constitution.

PRECEDENT– Supreme Court’s power to overrule its own earlier decision – Constitution Sch. 2.9 (1) of the Constitution.

POWER OF THE SUPREME COURT – to restore legislation struck down by Judicial Act.

Cases cited:

Jim Kas, Frank Faibison, Michael Jim and Rodney Tongal (Unreported Judgment of the Supreme Court dated 30th April 1999, SC772).

Legislations cited:

Constitution

Supreme Court Act

Interpretation Act

Criminal Code

Counsel:

H. Maladina, for the Applicant

R. Auka, for the Respondent

1 December, 2006

1. BY THE COURT: This is an application for leave to appeal against sentence imposed by the National Court (Kandakasi J) dated 26 September 2005. The application for leave to appeal was filed on 4 November 2005.

2. On the same date, the applicant also filed a notice of appeal against sentence as of right. The grounds raised in the appeal are exactly the same grounds raised in the application for leave to appeal.

3. The applicant sought to pursue the application for leave to appeal on the premise that s.22 (d) of the Supreme Court Act requires all persons who wish to appeal against sentence to first seek leave of the Supreme Court:

“22. Criminal appeals.

A person convicted by the National Court may appeal to the Supreme Court—

(a) …

(b) …

(c) …

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

4. However, the Supreme Court in Jim Kas, Frank Faibison, Michael Jim, and Rodney Tongau v The State (Jim Kas Case), SCA 89 of 1998, by a majority of 4-1 ruled that s.22 (d) was contrary to the right of appeal under s.37 (15) of the Constitution and struck down the provision.

5. Subsequent to this case, all persons who wished to appeal against sentence have appealed against sentence as of right.

6. In the present case, counsel for the applicant seeks to pursue the application for leave to appeal on the basis that in his submission, the majority in Jim Kas Case reached a wrong conclusion in law and it should be reversed and s.22 (d) of the Supreme Court Act is valid and should regulate the law on appeals against sentence.

7. Counsel for the respondent agrees with submission by counsel for the applicant that the majority decision in Jim Kas Case was wrong and the correct view of the law that should be adopted by this Court is the view expressed in the dissenting judgment. Both counsel have argued the issues fully and they are complimentary.

8. This necessarily requires a review of the majority decision in Jim Kas Case. Where a previous decision of the Supreme Court is challenged, it is not wrong in principle for the Supreme Court in a proper case, properly addressed and advised, to overrule its earlier decision by the same number of Judges (SC Reference 2 of 1992 [1992] PNGLR 336). The decision sought to be reviewed in the present case consisted of 5 Judges with a majority of 3-2. In the circumstances it is appropriate for 5 member bench to review the decision.

9. In Jim Kas Case, the reasons for decision by the majority opinion have not been published and two of the judges in the majority, Chief Justice Sir Arnold Amet and Woods J have since retired from the bench. The only reasons for decision which have been published is the dissenting reasons for decision of the Deputy Chief Justice (as he then was) and Sakora J who was part of the majority but has since published a separate reasons for decision and in effect followed the dissenting decision of the Deputy Chief Justice.

10. The dissenting reasons for decision have been published: Jim Kas, Frank Faibison, Michael Jim and Rodney Tongal (Unreported Judgment of the Supreme Court dated 30th April 1999, SC772).

11. We bear in mind the principle that the Court will not easily depart from a previous decision of the Court unless the point is fully argued and it is convinced it was clearly wrong.

12. In absence of any reasons for decision by the majority, we can get very little assistance in support of the reasons for the majority decision.

13. We now consider the dissenting opinion. The essence of the dissenting opinion is set out in the reasons for decision by the Deputy Chief Justice. We can do no better than set out in full the passages dealing with the issue commencing on page 7 of the reasons:

“The question of the constitutionality of the requirement for leave to appeal under s 22 (d) of the Act has not been the subject of decision by this Court. However, there are decisions of this Court which have dealt with the constitutionality of other related provisions of the Supreme Court Act which may provide a guide to the manner in which we should interpret s 22 (d) of the Act.

The Act regulates the right of a convicted person to file notice of appeal or an application for leave to appeal within 40 days (s 27). The case that deals with the constitutionality of the limitation of the appeal period is the landmark decision of Avia Aihi v The State (supra). The appellant in that case applied for leave to appeal against sentence but failed to file her application for leave to appeal within the 40 days limit imposed by the Act as in the present case. There were three alternative arguments advanced by counsel for the appellant. First, that the appellant had a right of appeal guaranteed by s 37 (15) of the Constitution and therefore must be enforced under s 57 of the Constitution. Alternatively, he submitted that the right to appeal may be enforced under s 155 (4) of the Constitution. Further and alternatively, he submitted that the Supreme Court had a discretion to review the sentence under s 155 (2) (b) of the Constitution. At this stage I am only concerned with the first alternative argument.

In the present case, counsel for the appellants did not rely on the second argument based on s 155 (4). However, he relied on the third alternative argument based on s 155 (2) (b) and I will come back and address it later in the judgment.

Chief Justice Kidu dealt with the first argument in the following terms:

“A person is guaranteed the right to have his conviction and sentence reviewed by a higher court or tribunal but this provision provides that this review must be “according to law”. It was submitted that “according to law” means according to such principles as fair hearing and does not mean putting limitations on time for appeal as s. 27 of the Supreme Court Act does. The Constitutional Planning Committee Report (The C.P.C. Report) does throw some light on what the phrase “according to law” is supposed to mean. (The Constitution itself doesn’t define the phrase.) Paragraph 26, p. 5/1/5 of the C.P.C. Report reads, inter alia, as follows:

“Firstly we propose the addition of a number of provisions under the head ‘Provisions to secure protection of law’ to give additional rights and protection to individuals. These include the right to appeal in accordance with a law which sets out permissible grounds of appeal;

. . .” (Emphasis mine.)

At p. 5/1/10, par. 50: “However, we recommend a number of additional protections of the individual which we believe are important if Papua New Guinea’s system for administering justice is to be one which in fact dispenses justice. These include safeguarding the right of every person convicted of an offence to an appeal to a higher court or tribunal; . . .”

The actual recommendation of the C.P.C. is at p. 5/1/25 par. 13 which reads, “Every person convicted of an offence (including an offence as a detainee) shall be entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law”.

It was said that because s. 37 appears in the part of the Constitution headed “Sub Division B – Fundamental Rights”, s. 37(15) is an absolute right incapable of being cut down by any ordinary law. This would have been true except for the words “according to law”. The argument that “according to law” here means the review of the conviction and sentence must be according to principles such as fair hearing, hearing within reasonable time and so forth seems to me to be unnecessarily restrictive of the meaning of the phrase “according to law”.

The term “law” is defined in Sch. 1.2(1) as including the underlying law. It seems to me that the term “law” as appearing in s. 37(15) of the Constitution means any law applicable to or affecting s. 37(15), if a liberal interpretation of s. 35(15) is applied as dictated by Sch. 1.5 of the Constitution which reads:

“(1) Each Constitutional Law is intended to be read as a whole.

(2) All provisions of,...