Jack Peni v The State (2007) SC913

• Jurisdiction: Papua New Guinea
• Date: 30 August 2007
• Citation: (2007) SC913
• Docket Number: SCR NO. 39 OF 2005
• Court: Supreme Court
• Year: 2007

Full Title: SCR NO. 39 OF 2005; Jack Peni v The State (2007) SC913

Supreme Court: Injia, DCJ, David & Hartshorn, JJ

Judgment Delivered: 30 August 2007

_________________________________

CRIMINAL LAW – application for leave – review of judicial act of the National Court under s155 (2) (b) Constitution – appeal filed out of time – application registered as a review – legal principles to be satisfied – all legal principles not satisfied – application is frivolous or vexatious and an abuse of process of the Court – depositions can be used to determine facts – depositions can be used to determine sentences – application refused – conviction and sentence of the National Court confirmed.

Cases cited:

Avia Aihi v. The State [1981] PNGLR 81

Dinge Damane v. The State [1991] PNGLR 244

Lawrence Simbe v. The State [1994] PNGLR 38

Mark Bob v. The State [2005] SC808

R v. Ambaidunga Kinde, Unreported re-Independence S.C Judgment No. 799, 13th June 1974

Simon Kama v. The State [2004] SC740

The State v. Laura (No.2) [1988-89] PNGLR 982

The State v. Sabarine Yakal [1988-89] PNGLR 129

Counsel:

Appellant in person

Mr. L.J Rangan, for the Respondent

DECISION ON APPLICATION FOR LEAVE TO SEEK REVIEW

30 August, 2007

1. BY THE COURT: This is an application for leave seeking to review the conviction of the Applicant, Jack Peni by the National Court sitting at Kokopo on 11 April 2005 on a charge of murder preferred under s.300 (1)(a) of the Criminal Code (the charge). The application is made under s155 (2)(b) of the Constitution.

BACKGROUND

2. The Applicant was charged for the murder of the deceased John Buka Paep which occurred on 21 February 2003 sometime around noon at Watwat village, Kokopo near where he resided. The deceased was surrounded by some eight (8) people and was being assaulted with sticks when he joined in the fray after they had stopped. He was the last person to assault the deceased when he punched him on his ribs with the closed fist of his right hand. The deceased walked two (2) to three (3) meters then crawled for some distance and died under a tree. The Applicant then picked up the deceased, put him on his shoulder and carried him to his brother-inlaw’s house. The Post Mortem Examination Report dated 10 March 2003 showed the deceased’s 7th and 8th left ribs were fractured, the spleen was smashed and had completely lost its original shape and about 2-3 litres of blood was in the deceased’s abdomen. The cause of death was massive loss of blood secondary to the injured spleen.

3. The Applicant was convicted upon entering a guilty plea on the charge. On 21 April 2005, he was sentence to sixteen (16) years imprisonment in hard labour less time spent in custody awaiting trial.

APPLICANT’S NOTICE OF APPEAL AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DECISION OF THE NATIONAL COURT

4. The Applicant’s Notice of Appeal and Application for Leave to Appeal Against a Decision of the National Court dated 9 May 2005 was filed on 4 July 2005 (the Notice). This was done well beyond the statutory period of forty (4) days prescribed under s.29 (1) of the Supreme Court Act (the Act) to file an appeal or obtain leave to appeal which time started running after the date of sentence: Mark Bob v. The State [2005] SC808. The Applicant did not seek any extension of time either under s.29 (2) of the Act. The consequence for non compliance is therefore that the Applicant has lost his right of appeal: see Avia Aihi v. The State [1981] PNGLR 81, Dinge Damane v. The State [1991 PNGLR 244.

APPLICATION FOR LEAVE SEEKING REVIEW AND RELEVANT LAW

5. The only avenue available now for the Applicant to have his conviction reviewed is by applying for leave seeking to invoke the Court’s inherent and discretionary powers of review under s.155 (20(b) of the Constitution. That provisions reads:-

The Supreme Court…. Has an inherent power to review all judicial acts of the National Court.

6. The relevant legal principles were first pronounced in the pioneering case of Avia Aihi v. The State (supra) and they have been affirmed, developed and applied in numerous cases since. These are that the exercise of the Court’s discretionary power pursuant to the provision under discussion can only be possible where the Applicant satisfies all of the following requirements that:-

1. it is in the interests of justice that leave be granted;

2. there are cogent and convincing reasons or exceptional circumstances; and

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

7. The relevant matters to be considered when deciding whether there are cogent and convincing reasons are:-

1. the reasons for failing to appeal within time; and

2. the merits of the case to be argued.

8. According to the endorsement in the Court file, the Applicant’s Notice was received and registered by the Registry as a Notice of Review when it was filed. The Respondent has not taken issue with any irregularity of the Notice. This may be because the Applicant is self represented and therefore under the...