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Wapiko v Pangou [1981] PGNC 5; N290(L) (19 March 1981)

N290(L)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 231 OF 1980

BETWEEN:

WARANIYA WAPIKO AND 13 OTHERS
APPELLANTS

AND:

LUKE PANGOU
RESPONDENT

Mount Hagen: Pratt J
19 March 1981

PRATT J: In this appeal and three others from Wabag some twenty-seven appellants are involved. Their sentences range from thirty months to three and a half years and in the majority of cases the appeal is against both conviction and severity. The appeals were lodged towards the beginning of the latter half of last year and in all cases notices of appeal were served on the clerk of court at Wabag on the 25th August 1980. There is in each appeal file, an affidavit of service to that effect. It is now of course the middle of March 1981. The magistrate at Wabag together with his clerk of court was kind enough to attend upon me in Chambers yesterday following my contact with the Chief Magistrate in Port Moresby. Apparently the records do not disclose that the notices of appeal have been served at all. Why that should be so I do not know, but I am satisfied that they were served on someone in the court in Wabag - someone in apparent authority. In addition to that difficulty, the magistrate also explained to me that they have problems with funds, that there are limited photostatting facilities and that those facilities are operated by other government departments such as the Bureau of Management Services who charge a fee of 40 toea per page and that there have been no funds in the court vote to pay for the cost of copying.

This of course is not the first instance which I have encountered in the past few months throughout the country where committal papers or appeal papers have not been forwarded within reasonable time. There are at least two other centres that I can specifically call to mind where long delays have occurred and it seems to be often the case that lack of recording facilities is the main cause. So far as appeals are concerned, as Mr Formosa has pointed out, there are provisions set down by statute - that is by the parliament - which are required to be complied with and this is not being done. But in addition to whatever is said in the District Courts Act and the Local Courts Act, there are of course provisions under our Constitution which are quite clear. I would refer to s.225 which reads:

"Without limiting the generality of any other provision of this Constitution, it is the duty of the National Government and of all other governmental bodies, and of all public office-holders and institutions, to ensure, as far as is within their respective legal powers, that all arrangements are made, staff and facilities provided and steps taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of the functions of all constitutional institutions and of the offices of all constitutional office-holders."

(I would pause to say there that it doesn’t matter whether it be local government, provincial government or national government - the Constitution covers the lot.)

The definition of a "constitutional office-holder" of course appears in s.221 and amongst those who occupy such position are a judge, the Public Prosecutor and the Public Solicitor, both of whom have representatives here today. All are involved as a matter of practicality in appeals in this country.

Under s.37(1) of the Constitution every person has the right to the full protection of the law and the succeeding provisions of this section are intended to ensure that that right is fully available especially to persons in custody or charged with offences. Sub-s. (3) of s.37 deals with a person charged in these terms:

"A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court."

Though the words do not cover the case of an appeal, I would take this sub-section to be just as applicable to someone who is appealing against conviction as to someone who is awaiting trial, especially when I take that sub-section in conjunction with sub-ss. (15) and (16) of s.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."

Now I am not in a position to make a full enquiry into the causes for the delay in these cases before me at present, or indeed in those other matters which I have earlier referred to. But whether these delays have been caused through a lack of funds or a lack of interest or just plain obstructionism or a combination of all or some of these, the result is that the law of the country is not being effectively administered. The words of the Constitution I do not take to be hollow. They are there, and until they are changed the administrators and finance officials must take them into account. The Constitution forms the very backbone of our country’s laws and I do not consider that any judge or magistrate would tolerate a situation which prevents the requirements of that law being carried into effect. There may well be good reasons or not, I do not know. But whatever the reasons, whether they be good or otherwise - that is good in the sense that they afford some sort of excuse for what has happened - they do not furnish a response to the requirements of the Constitution and of the District and Local Courts Acts. If there are shortages of funds this must be rectified immediately and the authorities must be advised of a situation where such shortage is likely to happen before it happens. If there is lack of support staff or initiative, then those matters must be thrashed out and a solution found. It is most distressing that twenty-one of twenty-seven people are still in a position where their appeals against conviction cannot be heard during the current sittings of the court in Mt. Hagen, six months after the appeals have been lodged.

I shall make every effort to see that these cases are properly before the court in the April sittings.

Solicitor for the Appellants: A. Amet, Public Solicitor
Counsel: P. Formosa
Solicitor for the Respondent: K. Roddenby, Deputy Acting Public Prosecutor
Counsel: K. Puaria