Arua Maraga Hariki v The State (2007) SC1320

• Jurisdiction: Papua New Guinea
• Date: 28 June 2007
• Citation: (2007) SC1320
• Docket Number: SCRA NO 12 0F 2003
• Court: Supreme Court
• Year: 2007

Full Title: SCRA NO 12 0F 2003; Arua Maraga Hariki v The State (2007) SC1320

Supreme Court: Injia DCJ, Cannings J

Judgment Delivered: 28 June 2007

PRACTICE AND PROCEDURE—criminal appeal—application for leave to amend notice of appeal—proposed addition of new ground of appeal—whether Supreme Court has power to grant leave after settlement of appeal book—test to be applied when determining whether to grant leave.

JUDGES—member of Supreme Court ceasing to be a Judge after hearing of application—whether remaining Judges can deliver judgment—Supreme Court Act, Section 3, continuation of appeal notwithstanding absence of Judge

This is a ruling on an application for leave to amend a notice of appeal in a criminal case. The applicant wanted to add a new ground of appeal. The Public Prosecutor objected and submitted that the applicant would require leave under s155(2)(b) of the Constitution. Between the dates of hearing the application and giving of judgment, one member of the bench retired so the remaining Judges had to decide as a preliminary issue whether the Court was duly constituted.

Held:

(1) The objection was made “in the course of an appeal” and Section 3 of the Supreme Court Act allowed the remaining Judges to give judgment.

(2) A notice of appeal can be amended:

(a) prior to the date for settlement of the appeal book—by supplementary notice, without leave;

(b) after that date and before or during the hearing of the appeal—with the leave of the court.

(3) In a criminal appeal the test applied when deciding whether to grant leave is whether there are special circumstances in the particular case, which makes the case an exceptional case that warrants the grant of leave to amend the notice of appeal (Charles Ombusu v The State [1996] PNGLR 335 applied).

(4) In the present case, special circumstances exist making the case exceptional, in that the proposed amendment was raising an arguable point of law; the applicant has had a number of lawyers representing him; the application for leave was made prior to the hearing of the appeal; the applicant was facing the most serious penalty known to the law—death by hanging; the respondent will not be unduly prejudiced by the granting of leave.

Cases cited

The following cases are cited in the judgment:

Avia Aihi v The State [1981] PNGLR 81

Birch v The State [1979] PNGLR 75

Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112

Charles Ombusu v The State [1996] PNGLR 335

Dinge Damane v The State [1991] PNGLR 244

Rolf Schubert v The State [1979] PNGLR 66

The Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812

The State v Arua Maraga Hariki (2002) N2331

The State v Arua Maraga Hariki [2003] PNGLR 53

Van Der Kreek v Van Der Kreek [1979] PNGLR 185

APPLICATION

This was an application for leave to amend a notice of appeal.

1. INJIA DCJ AND CANNINGS J: This is a ruling on an application for leave to amend a notice of appeal in a criminal case. The applicant, Arua Maraga Hariki, was convicted by the National Court (Salika J) of two counts of wilful murder and sentenced to death. He has appealed against both convictions and sentence. A few days before his appeal was due to be heard, his lawyer, the Public Solicitor, filed an application to amend the notice of appeal. He wants to add a new ground of appeal. The respondent, the Public Prosecutor, representing the State, objects. The case raises these issues:

1 What are the requirements of the Supreme Court Rules regarding applications to amend notices of appeal?

2 Should this application be granted?

Before addressing those issues there is a peculiar aspect of the hearing of the application that we need to address, plus we need to explain the background of the case.

RETIREMENT OF A MEMBER OF THE BENCH

2. When we heard the objection the court was constituted by three Judges, one of whom—Los J—has since retired. This raises the issue of whether the Court, now consisting of only two Judges, can determine the objection. Or should it be set down for rehearing before three Judges? The general requirement arising from s161(2) of the Constitution is:

Subject to Section 162(2) (jurisdiction of the Supreme Court) and for the purposes of any hearing, the...