Bernard Juali v The State (2001) SC667

• Jurisdiction: Papua New Guinea
• Citation: (2001) SC667
• Date: 30 August 2001
• Court: Supreme Court
• Year: 2001

Full Title: Bernard Juali v The State (2001) SC667

Supreme Court: Los J, Sevua J, Kandakasi J

Judgment Delivered: 30 August 2001

1 APPEALS—Application to dismiss for want of prosecution—Appellant insisting on inclusion of evidence not forming part of evidence in the Court below without any legal basis—Conceding to having no basis for that position at hearing of application—Substantial periods of time allowed to pass without any action—Failing to reply to correspondence—Undue delay established—No satisfactory explanation for the delay offered by the appellant or his lawyer—Want of Prosecution made out—Appeal dismissed for want of prosecution—Supreme Court Rules O7 r53.

2 General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331, Burns Philp (NG) Ltd v Maxine George [1983] PNGLR 55, Melchior Pep v Puri Ruing [1999]PNGLR 588 and Martha Limitopa v The Independent State of Papua New Guinea [1988–89] PNGLR 364 referred to

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Los J:

The appellant is serving a life sentence for wilful murder of his wife. He has lodged an appeal against the decision on 2 June 1998 through his lawyer. The applications before the court were firstly by the Respondent to dismiss the appeal for want of prosecution. The second one was by the Appellant seeking to dispense with the requirement for certification of the appeal book, a reason forming the basis of the first application. My brothers Sevua J and Kandakasi J have adequately covered the facts and law on application for want of prosecution. They concluded that the appellant and his lawyer had failed to exercise due diligence and therefore the appeal must be dismissed. I differ however, in two respects. Firstly, I differ in relation to the lawyer's explanation and the appellant's explanation as to the delay. The Appellant was incarcerated. I consider that despite being a policeman before, the appellant could not be expected to have a freedom to do anything in a bigger way to prosecute his appeal. Secondly, his lawyer had some explanation and that I must accept in the circumstances of this case. The emotional and explosive nature of the case is self–explanatory. There were numerous activities obstructive in nature against the appellant. The appellant's lawyer was threatened and attacked. Thirdly I do not consider that in a criminal conviction case, the fact that a person could lodge a claim against his lawyer on a ground of professional negligence should be comforting and supportive to an application for want of prosecution by the respondent. The case cited, namely, Martha Limitopa v The Independent State of Papua New Guinea [1988–89] PNGLR 364 and most of other cases referred in that case deal with civil cases where monitory gain or compensation would satisfy many claims, in my view. In this case monetary compensation would have little or bear little relevance to the appellant who has been sentenced to spend his remaining life in prison. In fact I consider that money consideration should not obstruct any right of appeal at all. The last consideration, in my view is the fundamental right to come to court whether in a first instance or on appeal by a person charged with an offence. That right is protected and enhanced under s37(15) of the Constitution. The section says:

"Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law."

I acknowledge that in numerous cases the phrase "according to law" has been interpreted to include the provisions of various Acts, Regulations and Rules. So an argument may be raised that to be entitled to a Constitutional right one must first comply with the rules and regulations. Although I consider that rules and regulations are important to bring about the issues in an orderly fashion to assist all the parties so that no party is surprised by it, they...