Mark Bob v The State (2005) SC808

• Jurisdiction: Papua New Guinea
• Judge: Kimbe: Salika, Cannings & Gabi JJ
• Judgment Date: 04 November 2005
• Citation: (2005) SC808
• Docket Number: SCR NO 76 0F 2003
• Court: National Court
• Year: 2005
• Judgement Number: SC808

Full Title: SCR NO 76 0F 2003; Mark Bob v The State (2005) SC808

National Court: Kimbe: Salika, Cannings & Gabi JJ

Judgment Delivered: 4 November 2005

SC808

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO 76 0F 2003

BETWEEN

MARK BOB

Applicant

AND

THE STATE

Respondent

Kimbe: Salika, Cannings & Gabi JJ

2005: 1, 4 November

APPLICATION FOR LEAVE TO SEEK REVIEW

CRIMINAL LAW – appeals and reviews – time limit for appealing under Supreme Court Act – start-date of appeal period – reviews under Section 155(2)(b) Constitution – criteria to be satisfied.

The applicant was convicted by the National Court of attempted unlawful killing and armed robbery and sentenced to a total of nine years imprisonment. The decisions on conviction and sentence were handed down on the same day. Four days later the applicant escaped from custody. He was at large for more than nine months before being recaptured. Shortly after being recaptured he applied to the Supreme Court for review of his conviction on the ground that there had been a miscarriage of justice in the National Court.

Held:

(1) A person who has been convicted of a criminal offence by the National Court and wants to have their conviction and/or sentence reviewed by the Supreme Court must either give notice of appeal within 40 days under Section 29 of the Supreme Court Act or apply for leave to seek review under Section 155(2)(b) of the Constitution.

(2) The 40-day appeal period starts to run immediately after the date on which the sentence is imposed.

(3) When deciding whether to grant leave under Section 155(2)(b) the Supreme Court considers three criteria, all of which should support the grant of leave:

(i) it is in the interests of justice to grant leave;

(ii) there are cogent and convincing reasons and exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity; and

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

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

(i) the reasons for not filing an appeal within time; and

(ii) the merits of the case sought to be argued. (Danny Sunu v The State [1984] PNGLR 305 followed.)

(5) In the present case, the applicant spoiled his chances of being granted leave by escaping from custody and being at large for more than nine months, not surrendering and then making a very late application for leave.

(6) The applicant satisfied none of the criteria. Therefore leave was refused.

Cases cited

The following cases are cited in the judgment:

Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510

Avia Aihi v The State [1981] PNGLR 81

Danny Sunu v The State [1984] PNGLR 305

David Toll v The State (1989) SC378

Doreen Liprin v The State (2001) SC673

Jeffrey Balakau v Ombudsman Commission [1996] PNGLR 346

Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437

Moi Avei and Electoral Commission v Charles Maino (1998) SC584

New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522

Sakarowa Koe v The State (2004) SC739

Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Ch No 138) [1987] PNGLR 433

The State v Colbert [1988] PNGLR 138

APPLICATION

This was an application for leave to seek review of the conviction of the applicant by the National Court on charges of armed robbery and attempted unlawful killing.

Counsel

M Bob, the applicant, in person

P Kaluwin for the respondent

1. BY THE COURT: This judgment is about an application for leave to seek review of the conviction of the applicant by Lenalia J in the National Court at Kokopo, on charges of armed robbery and attempted unlawful killing. The application for leave is made under Section 155(2)(b) of the Constitution. The court heard both the application for leave and (on the assumption that leave was granted) the substantive application for review of the applicant’s conviction and sentence.

BACKGROUND

2. On 20 December 2002 Lenalia J convicted the applicant, Mark Bob, and a co-offender, Wesley Vincent Oswald, of armed robbery and attempted murder. The offences were found to have been committed at Tobera No 1 Plantation, East New Britain, on 6 July 2001. The armed robbery involved stealing two sums of cash, K2,479.04 and K250.00, with actual violence. The attempted killing was in relation to a plantation manager, Jack Tulvue.

3. The appellant was sentenced the same day, 20 December 2002. He was given six years for armed robbery and nine years for attempted unlawful killing. The two sentences were to be served concurrently. He was committed to custody at Kerevat Correctional Institution.

4. A few days after being sentenced the applicant escaped from custody. He was at large for more than nine months, before being recaptured and re-committed to custody.

5. `On 10 October 2003 he filed an application for review of his conviction; the 40-day period for filing an appeal having lapsed well before then. Our interpretation of his application for review is that it is only in relation to his conviction, not the sentence.

THE REVIEW

6. The following grounds of review are relied on:

A No evidence.

B No eyewitness.

C I was sentenced by the Judge’s believe.

Note: I apologise for sending my appeal late because I was in a mass breakout just few days after I was sentenced. Now that I am back in prison can you please accept my appeal? [sic]

THE MAJOR ISSUES

7. Before we consider looking into the merits of the grounds of review in detail, there is an important preliminary issue to address: do we allow this review to continue, given that the applicant has made his application after the appeal period expired?

8. The major issues for determination therefore are:

· first, should the applicant be granted leave to seek review? and, if he is granted leave -

· secondly, did the trial judge commit any identifiable errors when convicting the applicant?

APPLICANT’S SUBMISSIONS

9. The applicant submitted that the reason that he had not filed his appeal in time is that he had escaped from custody. He filed his application for review soon after he was recaptured. He was sentenced to six months extra imprisonment after being convicted of the offence of escaping from lawful custody.

10. As to his trial, the applicant submitted that the key State witnesses lied under oath by saying that they saw him at the crime scene. He submitted that the evidence was that the victim did not recognise him until 4 January 2002 at the police station; the day on which the applicant claims that he was assaulted by the police. He claims that there was a conspiracy to convict him and that he is an innocent man. The National Court did not visit the crime scene and therefore was not in a position to verify the correctness of the measurements provided by the witnesses in their evidence. The State witnesses were not credible, and lied, he argued.

RESPONDENT’S SUBMISSIONS

11. Mr Kaluwin, for the State, submitted that the court should refuse to hear the matter as the applicant did not have any valid reasons for not appealing within the 40-day time limit set by the Supreme Court Act. The applicant broke the law by escaping and cannot now come to the court and ask for his case to be reviewed. In the circumstances the applicant would need to convince the court that a grave injustice occurred. He has not done that, so leave should be refused.

THE 40-DAY TIME LIMIT FOR APPEALS TO THE SUPREME COURT

Section 29

12. Section 29 (time for appealing under Division 3) of the Supreme Court Act sets a 40-day time limit for an appeal by a convicted person who wants to appeal to the Supreme Court. It states:

(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.

(3) In the case of a conviction involving a sentence of death or of corporal punishment—

(a) the sentence shall not be carried out until after the expiration of 40 days, or such further time as is allowed under this section, after the date of conviction; and

(b) if notice is given in accordance with Subsection (1), the sentence shall not be carried out until after the determination of the appeal, or where an application for leave to appeal is finally refused, of the application.

Section 17 not applicable

13. The time limits and other laws regulating appeals in criminal cases are imposed under Division III.3 (additional provisions relating to appeals in criminal cases) of the Supreme Court Act. They are not imposed under Division III.2 (additional provisions relating to appeals in civil cases). Section 17 of the Act imposes a 40-day time limit for appealing against judgments of the National Court in civil cases. It does not apply to criminal appeals. (See Sections 13 and 20.) On that point we respectfully point out that in a recent case the Supreme Court incorrectly referred to Section 17 rather than Section 29, in a criminal appeal, though not in such a way that it had any practical effect on the outcome of the case or caused prejudice to anyone. (Sakarowa Koe v...