Mark Bob v The State (2005) SC808

• Jurisdiction: Papua New Guinea
• Date: 04 November 2005
• Citation: (2005) SC808
• Docket Number: SCR NO 76 0F 2003
• Court: National Court
• Year: 2005

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

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 s155 (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 s155(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

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) PNGLR 6; Jeffrey Balakau v Ombudsman Commission [1996] PNGLR 346; Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437; Moi Avei v Charles Maino [2000] PNGLR 157; 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.

Ruling

_______________________________

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...