Jim Kas, Frank Faibison, Michael Jim and Rodney Tongau v The State (1999) SC772

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ Kapi DCJ Woods J Los J Sakora J
• Judgment Date: 30 April 1999
• Court: Supreme Court
• Docket Number: SCA No 89 of 1998
• Judgement Number: SC772

Full Title: SCA No 89 of 1998; Jim Kas, Frank Faibison, Michael Jim and Rodney Tongau v The State (1999) SC772

Supreme Court: Amet CJ, Kapi DCJ, Woods J, Los J, Sakora J

Judgment Delivered: 30 April 1999

SC772

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCA No. 89 of 1998

BETWEEN:

JIM KAS, FRANK FAIBISON

MICHAEL JIM AND RODNEY TONGAU

Appellants

AND:

THE STATE

Respondent

Waigani: Amet CJ., Kapi DCJ., Woods J., Los J., Sakora J.

27th & 30th April 1999

Appeal – Application for Leave to Appeal against Sentence s 22 (d) of the Supreme Court Act – Whether the requirement for leave is inconsistent with s 37 (15) and (16) of the Constitution.

Appeal – Leave to amend ground outside 40 days limit – Jurisdictional as well as procedural issues considered.

Judicial Review under s 155 (2) (b) of the Constitution considered.

Criminal Law – Endangering the safe use of an aircraft, s 442 of the Criminal Code – Elements of offence considered.

Cases cited:

Porewa Wani v The State [1979] PNGLR 593.

Dinge Damane v The State [1991] PNGLR 244

Avia Aihi v The State [1981] PNGLR 81

Henzy Yakham and the National Newspaper v Dr Stuart Merriam and Carrol Merriam; The Independent State of Papua New Guinea and Michael Nali v Dr Stuart Marriam and Carrol Marriam (Unreported judgment of the Supreme Court dated 27th November 1997, SC533).

Ila Geno v PNG [1993] PNGLR 22).

Pioneer Shipping Ltd & Others v BTP Tioxide Ltd (1982) AC 724;

Antaios Campanya Naviera SA v Salen Rederienas AB (1985) AC 191).

Moresby North East Election Petition [1977] PNGLR 429.

Supreme Court Reference No. 5 of 1985, Re Raz v Matane [1985] PNGLR 329

Tsang v Credit Corporation [1993] PNGLR 112.

Shelly v PNG Aviation Services (supra);

Dillingham Corporation v Diaz [1975] PNGLR 262;

Wood v Watkins (PNG) [1986] PNGLR 88;

PNG v Colbert [1988] PNGLR 138.

re Busytoday Ltd [1992] 1 WLR 683.

William Norris v The State [1979] PNGLR 605 at 612

Palling v Corfield (1970) 123 CLR 52, at 65

Mr G. Shepherd for the Appellants

Mr P. Mogish for the State

KAPI DCJ: The appellants were charged with a criminal offence contrary to s 442 of the Criminal Code (Code) that they on the 21st February 1998 at Madang with intent to prejudice the safe use of an aircraft, namely, an Airlink Banderantte Aircraft, dealt with the said aircraft by driving a motor vehicle straight at it and stopping under one of its wings whilst it was ready to take-off, thereby, endangering the free and safe use of the said aircraft. They were found guilty of the offence after a trial and sentenced to 4 years in hard labour.

The appellants appealed against both their convictions and sentences in their notice of appeal filed on 9th November 1998. The appeal was originally listed for hearing on 24th March 1999 before the Court (Kapi DCJ., Sakora J., Injia J.). At the commencement of the hearing, the Court raised a preliminary issue regarding the requirement for leave to appeal against sentence under s 22 (d) of the Supreme Court Act (Act). The Court suggested that as leave to appeal against sentence had not been sought within 40 days, the appeal against sentence was incompetent (Porewa Wani v The State [1979] PNGLR 593). Counsel for the appellants was invited to abandon the appeal against sentence. After a short adjournment, counsel for the appellants submitted that appeals against sentence were competent.

In the alternative, he submitted that if the appeals as they stood were incompetent, he would make an application to amend the notice of appeal to

include applications for leave to appeal against sentence. On this point, the Court made reference to the case of Dinge Damane v The State [1991] PNGLR 244. Both counsel were not prepared to argue the application for amendment. The case was adjourned to the next sittings of the Supreme Court in April to enable counsel to argue this point as well.

It was also suggested that the Court should be reconstituted by a five member bench in view of the fact that there was a difference of opinion (2-1) in Dinge Damane v The State (supra) on the question of amendment of notice of appeal outside the 40 days limitation period.

This Court has been reconstituted accordingly and the matter came on for hearing on the 27th April 1999.

By agreement, counsel first argued the preliminary issue as to the competency of the appeals against sentence. We reserved our decision in this respect and proceeded to hear the merits on sentence as well as appeals against conviction with a view to reserving all questions so that the Court could consider its decision on all matters and then hand down its decision at a later date.

During the course of submissions, the Court after a short adjournment, ruled with a majority of four that leave to appeal against sentence is not required and that the appeals against sentence in the present case are competent with full reasons to be published at a later date. I held the view that important legal arguments have been raised that require careful consideration, I reserved my decision on this point.

The Court then proceeded to hear the appeals against conviction as well as appeal against sentence. The Court reserved its decision. Two days later, the Court announced its unanimous decision and allowed the appeals against conviction, quashed the convictions and sentences and discharged all appellants forthwith with reasons to be published later.

I now publish my reasons for decision in respect of the competency issue as well as appeals against conviction.

I will first deal with the preliminary point on competency of appeals against sentence. The relevant facts for the purposes of this issue may be briefly described as follows. The appellants were convicted by the National Court on the 5th and sentenced on the 6th November 1998. On the 9th November 1998, their lawyer filed a notice of appeal against convictions and sentences. Paragraph 2 of the notice of appeal asserts that the appeal lies without leave. The record shows that the appellants have not made any application to amend the notice of appeal so as to file an application for leave to appeal within the 40 days limit imposed by s 27 of the Act. The notice of appeal purports to assert grounds of appeal against sentence without first obtaining leave of the Court as required by s 22 (d) of the Act. Such a notice of appeal in these circumstances has been held to be incompetent (see Porewa Wani v The State (supra)).

Section 22 (d) of the Supreme Court Act provides as follows:

“A person convicted by the National Court may appeal to the Supreme Court-

(a) against his conviction, on any ground that involves a question of law alone, and

(b) against his conviction, on a question of mixed fact and law,

(c) ….

(d) with the leave of the Supreme Court, against the sentence

passed on his conviction unless the sentence is one fixed by law.”

Counsel for the appellants sought to support the competency of the appeal against sentence on a number of alternative grounds; (1) That s 22 (d) of the Act is inconsistent with s 37 (15) of the Constitution and therefore must be struck down. (2) Alternatively, he submitted that to the extent that the requirement for leave to appeal against sentence qualifies the right to question the lawfulness of the sentence pursuant to s 41 of the Constitution, the Act which qualifies this right must comply with the requirements of s 38 of the Constitution. He submitted that as the Act has not complied with s 38, it is invalid. (3) Further and alternatively, he submitted that the requirement for leave to appeal is an irregularity in procedure and may be cured by an amendment to comply with requirement for leave to appeal. (4) Finally, he submitted that if the appeal against sentence is incompetent, the appellants may apply for judicial review of the sentence under s 155 (2) (b) of the Constitution (Avia Aihi v The State [1981] PNGLR 81).

The Constitutional argument falls under two headings. The first is that s 22 (d) of the Supreme Court Act is inconsistent with s 37 (15) and (16) of the Constitution and therefore is invalid. These provisions are in the following terms:

“37….

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

(16) ) No person shall be deprived by law of a right of appeal against his

conviction or sentence by any court that existed at the time of the conviction or sentence, as the case may be.”

Counsel for the appellants submitted that the requirement for leave to appeal against sentence is by nature prohibitive and not regulative and therefore is inconsistent with s 37 (15) of the Constitution. He relies on certain passages from the judgments of Chief Justice Kidu and Deputy Chief Justice Kearney in Avia Aihi v The State (supra).

Counsel for the respondent submitted that the...