Review pursuant to s155 (2) (B) Constitution; Benjamin Sengi v The State (2015) SC1425

• Jurisdiction: Papua New Guinea
• Judge: Gavara Nanu J, Hartshorn and Sawong JJ
• Judgment Date: 28 April 2015
• Citation: (2015) SC1425
• Docket Number: SC REV 8 of 2014
• Court: Supreme Court
• Year: 2015
• Judgement Number: SC1425

Full Title: SC REV 8 of 2014; Review pursuant to s155 (2) (B) Constitution; Benjamin Sengi v The State (2015) SC1425

Supreme Court: Gavara Nanu J, Hartshorn and Sawong JJ

Judgment Delivered: 28 April 2015

SC1425

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV 8 of 2014

REVIEW PURSUANT TO SECTION

155 (2) (b) CONSTITUTION

BETWEEN:

BENJAMIN SENGI

Applicant

AND:

THE STATE

Respondent

Kokopo: Gavara Nanu J, Hartshorn and Sawong JJ

2015: 27th, 28th April

Application for leave to review under s. 155 (2) (b) Constitution

Cases

Avia Aihi v. The State (No. 2) [1982] PNGLR 44

Application by Anderson Agiru (2002) SC686

Application by Herman Leahy (2006) SC855

Application by John Maddison and Bank of South Pacific Ltd (2009) SC984

Alphonse Tay v. Newcombe Gerau (2011) SC1097

Counsel:

Applicant in person

Mr. R. Auka, for the Respondent

28th April, 2015

1. BY THE COURT: The applicant seeks leave to review the sentence of 20 years imprisonment that was imposed upon him after he was found guilty of two counts of rape with circumstances of aggravation (Sentence). The application for leave is made pursuant to s. 155 (2) (b) Constitution as the applicant did not exercise his right of appeal in the time permitted by statute: Avia Aihi v. The State (No. 2) [1982] PNGLR 44; Application by Anderson Agiru (2002) SC686; Application by Herman Leahy (2006) SC855 and Alphonse Tay v. Newcombe Gerau (2011) SC1097.

2. Where a right of appeal has not been exercised, three criteria must be satisfied before leave can be granted (we refer to the cases cited above). These are:

a) it is in the interests of justice to grant leave; and

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

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

3. The applicant did not file an appeal within the 40 days period permitted by statute. It was not until more than four years and four months after the Sentence was imposed, that this review proceeding was filed. That is more than 40 periods of appeal of 40 days. The explanation for the delay was that the applicant’s lawyer had failed to file an appeal or an application for review on the applicant’s behalf. Yet when documentary evidence was requested, it disclosed that the applicant had dispensed with his lawyers services in August 2011. It was also submitted that another lawyer had failed to file an application for review of sentence after an application for a review of the applicant’s conviction had been withdrawn, but there was no evidence of this before the Court. Even if there had been, it does not detract from the inordinate delay that has occurred in filing this review.

4. As the Court said in Alphonse Tay v. Newcombe Gerau (supra), it is clearly not in the interests of justice that an applicant be allowed to review a judicial decision after such a lengthy period of time. In that case a period of three years five months had elapsed since the decision sought to be reviewed was delivered. Further, in Application by John Maddison and Bank of South Pacific Ltd (2009) SC984, in refusing to grant leave to review under s. 155 (2) (b) Constitution, the Court considered a period of 9 months to be an inordinate and inexcusable delay. The delay in Maddison (supra) is insignificant in comparison with the delay in this case.

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