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Supreme Court of Papua New Guinea |
[1981] PNGLR 81 - Avia Aihi v The State (No 1)
SC195
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
AVIA AIHI
V
THE STATE
Waigani
Kidu CJ Kearney DCJ Greville Smith J Andrew J Kapi J
28 July 1980
28-29 August 1980
27 March 1981
CRIMINAL LAW - Appeal - Application for leave to appeal against sentence - Application outside time limit prescribed by Supreme Court Act - Right of appeal lost - Inherent jurisdiction to hear application - Supreme Court Act 1975, ss. 21, 27 - Constitution ss. 37(15), 37(16), 57[cxxxv]1, 155[cxxxvi]2, 162.
N1>CRIMINAL LAW - Appeal against sentence - “Appeal” - “Review” - No distinction - Constitution ss. 37(15), s. 37(16).
N1>CRIMINAL LAW - Appeal against sentence - Right to “appeal” against sentence - “Review” of sentence - Right existing at time of conviction - No loss of this right - Constitution s. 37(16).
N1>CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Right of appeal against sentence - Loss of right under Supreme Court Act - “Inherent” jurisdiction of Court - Constitution ss. 37(15), 37(16), 57[cxxxvii]3, 155[cxxxviii]4, 162.
N1>STATUTES - Interpretation - “According to law” - Refers to whole body of law - Constitution ss. 9, s. 37(15).
N1>COURTS AND JUDGES - Jurisdiction - “Inherent” jurisdiction - To give way to statutory grant - Constitution s. 155.
N1>WORDS AND PHRASES -“Appeal” - “Review” - No distinction - Constitution ss. 37(15), 37(16).
N1>WORDS AND PHRASES - “According to law” - Refers to whole body of law - Constitution ss. 9, 37(15).
N1>WORDS AND PHRASES - “Inherent jurisdiction” - Nature of and meaning of - Constitution s. 155.
Section 27 of the Supreme Court Act, 1975 which provides that a convicted person shall give notice of appeal or notice of application for leave to appeal in the manner prescribed by the Rules of Court, within forty days after the date of conviction, validly regulates the right to “review of sentence... according to law” guaranteed by s. 37(15) of the Constitution.
The right to appeal or to apply for leave to appeal is lost on failure to comply with s. 27 of the Supreme Court Act.
Section 155(4) of the Constitution, which confers an inherent jurisdiction to make such orders as are necessary to do justice in the circumstances, does not empower the Court to waive non compliance with s. 27 of the Supreme Court Act.
Saki v. The State, [1980] P.N.G.L.R. 33;
Mathias Evertz v. The State, [1979] P.N.G.L.R. 174; and
Launce Vetari v. The State (Unreported Supreme Court judgment SC 156 of 1979) distinguished.
(Greville Smith J. and Kapi J. dissenting.) Section 155(2)(b) of the Constitution, which gives the Supreme Court an “inherent power to review all judicial acts of the National Court”, however, invests the Supreme Court with an unfettered discretionary jurisdiction to hear an appeal and an application for leave to appeal from the National Court, although the applicant has lost his right to appeal or to apply for leave to appeal. The discretion should be exercised only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, the onus being upon the applicant.
(Per Kidu C.J., Kearney Dep. C.J. and Andrew J.) Section 155(2)(c) of the Constitution, which gives the Supreme Court “such other jurisdiction and powers as are conferred on it by this Constitution or any other law”, is a separate and distinct grant of jurisdiction from that granted in s. 155(2)(b).
(Per Kidu C.J. and Kapi J., with whom Kearney Dep. C.J. agreed.) There is no distinction between the right to “review” of conviction and sentence under s. 37(15) of the Constitution and the right to “appeal” against conviction and sentence under s. 37(16).
(Per Kidu C.J., with whom Kearney Dep. C.J. agreed.) Section 37(16) of the Constitution ensures that a convicted person is not deprived of any right of appeal which existed at the time he was convicted.
(Per Kearney Dep. C.J. and Kapi J.) The expression “according to law” in s. 37(15) of the Constitution refers to the whole body of the law as defined in s. 9 of the Constitution.
(Per Andrew J.) An “inherent” power must, in general, give way to any statutory provision with which it is in conflict.
Discussion by Andrew J. of the meaning and nature of the “inherent” jurisdiction of the Court.
Application for Leave to Appeal against Sentence.
This was an application for leave to appeal against a sentence of life imprisonment imposed by the National Court on 17th March, 1979. The notice of application for leave to appeal against sentence was filed in May, 1980.
Counsel:
K. A. Wilson and S. J. Cox, for the applicant.
W. J. Karczewski, for the State.
Cur. adv. vult.
27 March 1981
KIDU CJ: On 8th May, 1980 the Public Solicitor filed a notice of application for leave to appeal, on behalf of Avia Aihi (herein the “applicant”), against a sentence of life imprisonment imposed on her by the National Court on 17th March, 1979.
The question before this Court is whether the court has power to allow her to apply for leave to appeal out of time—more than twelve months after her conviction and sentence.
Section 21 of the Supreme Court Act 1975 allows a convicted person to appeal against his sentence with the leave of the court. Section 27 of the Supreme Court Act 1975 then provides as follows:
N2>“(1) Subject to Sub-section (2), where a person convicted decides to appeal or to obtain leave to appeal to the Supreme Court, he shall give notice of appeal, or notice of application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of conviction.
N2>(2) The time within which notice of appeal, or notice of an application for leave to appeal, may be given may be extended at any time by the Supreme Court on application made within 40 days after the date of conviction.”
The applicant did not comply with s. 27—that is, no notice of application for leave to appeal or extension of time, was applied for within forty days after her conviction. This was through no fault of her own; she was unable to obtain the services of a lawyer to help her comply with requirements of s. 27 of the Supreme Court Act until more than twelve months after her conviction.
Counsel for the applicant submitted that s. 27 of the Supreme Court Act does not operate to bar his client from appealing against her sentence because the right of appeal against conviction and sentence is a guaranteed right under s. 37(15) of the Constitution and the Supreme Court should protect this right as required by s. 57 of the Constitution. In the alternative it was argued that the Supreme Court had power under s. 155(4) of the Constitution to make an order to enforce this right. Counsel also submitted that the Supreme Court has a discretion under s. 155(2)(b) to allow the applicant to have her conviction reviewed.
Section 37(15), s. 57 and s. 155(4) of the Constitution read as follows:
N2>“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.”
N2>“57. ENFORCEMENT OF GUARANTEED RIGHTS AND FREEDOMS.
(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.
(2) For the purposes of this section—
(a) the Law Officers of Papua New Guinea; and
(b) any other persons prescribed for the purpose by an Act of the Parliament; and
(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,
have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.
(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).
(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).
(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.
(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.”
Section 155 (4)—
“Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”
It was not submitted by counsel for the applicant that, as s. 37(15) of the Constitution provides for an absolute right, s. 27 of the Supreme Court Act was therefore unconstitutional.
A person is guaranteed the right to have his conviction and sentence reviewed by a higher court or tribunal but this provision provides that this review must be “according to law”. It was submitted that “according to law” means according to such principles as fair hearing and does not mean putting limitations on time for appeal as s. 27 of the Supreme Court Act does. The Constitutional Planning Committee Report (The C.P.C. Report) does throw some light on what the phrase “according to law” is supposed to mean. (The Constitution itself doesn’t define the phrase.) Paragraph 26, p. 5/1/5 of the C.P.C. Report reads, inter alia, as follows:
“Firstly we propose the addition of a number of provisions under the head ‘Provisions to secure protection of law’ to give additional rights and protection to individuals. These include the right to appeal in accordance with a law which sets out permissible grounds of appeal;...” (Emphasis mine.)
At p. 5/1/10, par. 50: “However, we recommend a number of additional protections of the individual which we believe are important if Papua New Guinea’s system for administering justice is to be one which in fact dispenses justice. These include safeguarding the right of every person convicted of an offence to an appeal to a higher court or tribunal;...”
The actual recommendation of the C.P.C. is at p. 5/1/25 par. 13 which reads, “Every person convicted of an offence (including an offence as a detainee) shall be entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law”.
It was said that because s. 37 appears in the part of the Constitution headed “Sub Division B—Fundamental Rights”, s. 37(15) is an absolute right incapable of being cut down by any ordinary law. This would have been true except for the words “according to law”. The argument that “according to law” here means the review of the conviction and sentence must be according to principles such as fair hearing, hearing within a reasonable time and so forth seems to me to be unnecessarily restrictive of the meaning of the phrase “according to law”.
The term “law” is defined in Sch. 1.2(1) as including the underlying law. It seems to me that the term “law” as appearing in s. 37(15) of the Constitution means any law applicable to or affecting s. 37(15), if a liberal interpretation of s. 35(15) is applied as dictated by Sch. 1.5 of the Constitution which reads:
N2>“(1) Each Constitutional Law is intended to be read as a whole.
N2>(2) All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning.”
That the right guaranteed by s. 37(15) can not be done away with by any Act is not open to dispute. Any Act which purports to do this will be quite clearly unconstitutional. See Constitutional Reference No. 2 of 1978; In Re The Corrective Institutions Act 1957[cxxxix]5.
N1>This is not such a case. Section 27 of the Supreme Court Act does not prohibit appeals; it merely regulates the right of appeal. In my opinion s. 37(15) itself allows this to be done by subjecting the right to be “according to law”.
N1>Counsel for the respondent submitted that what is guaranteed in s. 37(15) is an entitlement to review, and not a right of appeal; that ss. 21 and 27 of the Supreme Court Act relate to appeals and therefore s. 37(15) of the Constitution does not affect them. It was argued that ss. 21 and 27 of the Act were laws made under s. 155(2)(c) of the Constitution which provides that the Supreme Court “has such other jurisdiction and powers as are conferred on it by this Constitution or any other law”. The Constitution gives power of review to the Supreme Court under s. 155(2)(b) which says the Supreme Court has “an inherent power to review all judicial acts of the National Court”. What was submitted by counsel for the respondent was the Constitution provides for two different things in s. 37(15); it guarantees the right of review whereas s. 37(16) relates to the right of appeal.
N1>I consider that s. 37(16) is not to be used to infer or draw a distinction between appeals and reviews. In my opinion what s. 37(16) does is to ensure that when a person is convicted and sentenced and at the time of such conviction and sentence there existed a right of appeal he should not be deprived by any law of such a right. It does not in my view create a distinction between a right of appeal and a right of review. I consider that s. 37(16) has no relevance to the present matter before this Court.
N1>Counsel for the applicant argued that the Supreme Court had in the past utilized s. 155(4) of the Constitution to allow convicted persons to bring matters before the Supreme Court even though s. 27 of the Supreme Court Act was not complied with. The cases of Saki v. The State[cxl]6; Mathias Evertz v. The State[cxli]7 and Launce Vetari v. The State[cxlii]8 were cited to support his contention. With respect these cases did not delve into the application of s. 155(4) and are therefore of little help to this Court for present purposes.
N1>In my view s. 155(4) has no application in cases where specific provisions of the Constitution provide for enforcement of guaranteed rights. In this case s. 57 does specifically provide for the enforcement of guaranteed right by both the Supreme Court and the National Court either on their own initiative or by persons mentioned in that section and others who have an interest in enforcing the rule of law.
N1>Sub-section (3) of s. 57 specifically provides that where a right is to be protected or enforced a court mentioned in sub-s. (1) “may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force)”.
N1>However as I understand Mr. Wilson’s argument if it is held that s. 37(15) is regulated by s. 27 of the Supreme Court Act and therefore the applicant can not effectively bring her appeal against the sentence before the court, the court nevertheless has an over-riding power under s. 155(4) of the Constitution to order that she be allowed to appeal out of time.
N1>What this Court has been asked is to make an order contrary to s. 37(15) of the Constitution and s. 27 of the Supreme Court Act 1975. The terms of s. 37(15) and s. 27 of the Act are quite clear and in my view this Court has no power under s. 155(4) of the Constitution to make an order contrary to specific dictates of the Constitution. If the contention is correct that this Court can make an order under s. 155(4) of the Constitution then we would have the situation where the Supreme Court can over-ride an Act of Parliament specifically allowed to be made by the Constitution. I would not think that the Founding Fathers of the Constitution intended this to be the case.
The Deputy Chief Justice says that s. 155(2)(b) of the Constitution invests this Court with a discretionary power to allow review of judicial acts of the National Court, where there is no longer a right of appeal— in this case by operation of s. 37(15) Constitution and s. 27 of the Supreme Court Act 1975.
I have had the benefit of reading the draft judgment of my brother Greville Smith on this point as well.
We cannot cut down the powers of this Court if the Constitution has invested it with extra jurisdiction or power. If this Court has been granted inherent powers by the people through the Constitution, we must be bold in stating the fact. The inherent power of the Supreme Court to review all judicial acts of the National Court emanates from the people through the Constitution. Whatever the nature or extent of this power might be, it does not derive from any statute or the common law or any prerogative powers of persons or bodies outside Papua New Guinea.
Section 162 of the Constitution states that the jurisdiction of the Supreme Court is as set out in:
N2>(a) Subdivisions II.2.C (constitutional interpretation) (—ss. 18 and 19)
N2>(b) Subdivision III.3.D (enforcement)—(ss. 57 and 58)
N2>(c) Section 155 (the National Judicial System).
Section 155(1) is not relevant here.
Section 155(2):
N2>(a) It first provides that the Supreme Court is the final court of appeal. It means the “buck stops here”. The intention of the provision— (see C.P.C. Report, Chapter 8, p. 8/3, par. 24). It gives no extra power.
N2>(b) Inherent power to review all judicial acts of National Court.
N2>(c) Such other powers given by the Constitution or any other law. (Emphasis mine.)
Quite clearly s. 155(2)(b) and (2)(c) are heads of power. Section 155(4) gives the Supreme Court inherent power to make “orders in the nature of prerogative writs...” etc. The power given under s. 155(2)(b) is separated from s. 155(4).
What s. 155(2)(b) gives is a power. This is obvious from s. 162 of the Constitution. The National Court’s “inherent power to review any exercise of judicial authority” (s. 155(3)(a)) is subject to removal or restriction (s. 155(3)(e)) whereas the Supreme Court’s inherent power under s. 155(2)(b) is not.
My brother Greville Smith says s. 155(2)(b), like s. 155(3) is “descriptive of the general nature of such courts”. With the greatest respect I beg to differ. Section 155(2)(b) quite clearly gives jurisdiction. It is not merely descriptive.
If one applies the dictates of the Constitution—that is, “Each Constitutional Law is intended to be read as a whole” and “All provisions of, and all words, expressions and propositions in a Constitutional Law shall be given their fair and liberal meaning” (Sch. 1.5)—then s. 155(2)(b) must mean more than being descriptive of the nature of the Supreme Court. It cannot and should not be assumed that the concept of inherent power to review in s. 155 is necessarily what was taken to be the case before 16th September, 1975. The common law has no application in post-Independence Papua New Guinea if it is in conflict with statutes and the Constitution. The powers and jurisdiction of the Supreme Court derive not from any statute or the common law but from s. 162 of the Constitution. The common law should not and cannot be used to cut down powers given to the Supreme Court by the Constitution. As a creature of the Constitution, it cannot be otherwise.
I concur with the Deputy Chief Justice that this Court has discretionary power given to it by s. 155(2)(b) of the Constitution and the applicant should be required to convince the court why she should have this discretion exercised in her favour to allow her leave to apply for her sentence to be reviewed.
I agree with the order proposed by the Deputy Chief Justice.
KEARNEY DCJ: Avia Aihi applies for leave to appeal against the severity of a sentence of life imprisonment. Section 27(1) of the Supreme Court Act 1975 (herein called “The Act”) provides that notice of such an application must be given within forty days after conviction. This application was lodged well outside the time allowed by s. 27. This failure to meet the requirements of the Act gives rise to a preliminary question whether this Court has jurisdiction to entertain the application, and to hear the appeal.
Argument on the preliminary question has been completed, and is the subject of the ruling today. It was considered as a matter of convenience that the meaning and effect of certain relevant legal provisions should be decided before any matters of fact were raised.
Mr. Wilson put his arguments in the alternative.
The first argument is put on a basis of right; that the applicant has a right to have her application considered by this Court. The argument was directed to the scope of the basic right of a convicted person under the Constitution, s. 37(15). I consider that that right is not unlimited; in its terms, it contains the seeds of its own limitation in the phrase “according to law”. That phrase, in my opinion, means the same as it does in the Constitution, s. 37(4)(a); that is, it refers to the whole of the law of the country, statute and underlying, as exhaustively defined in the Constitution, s. 9.
A law which imposes time-limits on appeals, such as s. 27 of the Act, is not rendered unconstitutional by the Constitution, s. 37(15); it is a “law” within the meaning of that word in the phrase “according to law”. It is therefore not surprising that the Constitution itself should contemplate that there will be statutory time-limits on appeals; for example, in s. 103(4).
No argument was directed to the validity of s. 21(d) of the Act, insofar as it requires that leave first be obtained; I express no opinion on that, and proceed on the basis that it is conceded that leave is required.
A law which purported to regulate appeals by convicted persons in such manner as to render review by a higher court merely colourable, would I think be struck down by the Constitution, s. 37(15); but in my opinion it cannot be argued that a law imposing a forty day time-limit on appeals or applications is a law of that character. I consider that s. 27 of the Act is valid, and its meaning and effect is beyond doubt.
The process of “review” referred to in the Constitution, s. 37(15), is equivalent to the process of appeal; see Constitutional Reference No. 2 of 1978; In re Corrective Institution Act[cxliii]9. By his appeal, a convicted person seeks to have his case reviewed; I respectfully agree with the linguistic analysis of these words by Kapi J. It is accordingly unnecessary to consider further the respondent’s submissions which sought to distinguish the Constitution, s. 37(15) reviews, from appeals; I respectfully agree with the Chief Justice as to the meaning of the Constitution, s. 37(16), and that it has no relevance in the present case.
N1>I consider that both s. 21 and s. 27 of the Act are founded on the Constitution, s. 155(2)(c) and s. 37(15). They regulate the rights of individuals in a certain respect, namely the right to appeal in criminal cases; and confer correlative appellate jurisdiction on this Court to entertain such appeals, so regulated. They do not purport to be exhaustive of appellate power.
N1>I respectfully agree with the Chief Justice that Avia Aihi no longer has a right under the Constitution, s. 37(15), to have her application for leave considered by this Court. She has failed to comply with s. 27 of the Act, a valid regulatory law; that failure results in the loss of her constitutional right to have her sentence reviewed. Thus she has no relevant basic right to be enforced in this Court, under the Supreme Court Constitution, s. 57; compare, for example, the enforcement of an existing right, in Reference No. 3 of 1979; The State v. John Rumet Kaputin[cxliv]10.
N1>Accordingly, I would reject the argument based on right.
N1>The alternative argument is put on a basis of discretion. Mr. Wilson has two submissions.
N1>The first submission is that this Court, in its discretion and exercising power under the Constitution, s. 155(4), may waive the failure to comply with s. 27 of the Act.
It was contended that the cases of Saki v. The State[cxlv]11; Mathias Evertz v. The State[cxlvi]12 and Launce Vetari v. The State[cxlvii]13 establish that proposition. In my opinion, examination of these decisions shows that this contention is without substance.
N1>In Saki (supra) an informal “appeal” was put on foot, by letter to this Court from the prisoner, within two weeks of his conviction. Section 27 of the Act was not in issue; the question was whether compliance with the Supreme Court Rules 1977 was mandatory. During the hearing, the appellant withdrew his appeal. Meanwhile, an admitted error in the warrant of commitment, affecting his date of discharge, had come to the court’s attention. The Constitution, s. 155(4) was relied on by the court to authorize his discharge from custody on the correct date. That is in my opinion an example of the proper use of the Constitution, s. 155(4); that is, the tailoring of the remedial process of the court to ensure that an existing primary right is enforced.
N1>In Evertz[cxlviii]14 neither the Constitution, s. 155(4), nor s. 27 of the Act were in issue. A notice of appeal had been lodged well within the statutory time limit; what was involved was the construction of that document, and in particular whether it could be construed as a notice of application for leave to appeal. As with all construction cases, it turned upon its own facts.
N1>In Launce Vetari[cxlix]15 a notice of appeal was lodged within time and the question in issue, as in Saki (supra), was whether it complied with the Supreme Court Rules 1977. Neither the Constitution, s. 155(4), nor s. 27 of the Act were in issue.
N1>In Porewa Wani v. The State[cl]16 a notice of appeal was filed within extra time allowed by the court. It was an appeal against sentence, so leave to appeal was required. As in Evertz (supra), the question was whether the notice of appeal could be construed as a notice of application for leave to appeal. No argument was put on the Constitution, s. 155 (4). It appears to have been assumed that the requirements of s. 27 of the Act must be met.
N1>Finally in Smedley v. The State[cli]17, a decision published after argument in this case had concluded, a construction issue arose as in Evertz (supra) and Porewa Wani (supra). No argument was put on the Constitution, s. 155(4).
N1>I agree with the views of Prentice C.J. and Andrew J. in Constitutional Reference No. 1 of 1979; Premdas v. Papua New Guinea[clii]18 that the Constitution, s. 155(4), involves at least a grant of power to the courts. I consider that the sub-section gives unfettered discretionary power both to this Court and the National Court so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected. And so, for example, the development of remedial process such as the Mareva injunction need not be as tortuous here as in England. But the Constitution, s. 155(4) cannot affect the primary rights of parties; these are determined by law. In the circumstances of this case, the applicant now has lost the right to have her sentence reviewed. That extinction of her primary right comes about by operation of law; that is, by her failure to comply with s. 27 of the Act. The Constitution, s. 155(4), cannot be used to re-create a primary right, once extinguished.
N1>Accordingly, I respectfully agree with the Chief Justice that the Constitution, s. 155(4), does not vest in this Court power to waive a failure to comply with s. 27 of the Act; I would reject the first submission.
N1>Mr. Wilson’s second submission is that under the Constitution, s. 155(2)(b), this Court has an absolutely unfettered power to review decisions of the National Court; and that it must always be open to a convicted person who has lost his constitutional (s. 37 (15)) right to have a review, to ask the court nevertheless to exercise its power to review. As to the latter part, I consider that the question of the locus standi of an applicant, would be but one of the matters to be taken into account by a court when considering whether or not to exercise a discretionary jurisdiction.
N1>Mr. Wilson submits that the court has power, exercisable in its discretion, to decide whether or not to grant such a request and embark upon a review. If the court rules today that it has such power, Mr. Wilson will submit factual material in support of his application that the power be exercised in this case.
N1>As in the Constitution, s. 37(15), so in the Constitution, s. 155(2)(b) I consider that the process of review is equivalent to the process of appeal.
N1>This Court, as part of the National Judicial System, is invested with the judicial authority of the people: the Constitution, s. 158(1). That is the exclusive and ultimate source of its authority.
N1>The word “inherent” in the Constitution, s. 155(2)(b), I think, indicates that it is direct from that unlimited well that the court’s authority under that provision is derived; it is not a reference to a power possessed by the court simply because it is a court.
N1>The word “inherent” also connotes that within the limits of the subject-matter of the Constitution, s. 155(2)(b)—”judicial acts of the National Court”—the power of review of this Court is plenary. In the absence of express constitutional provision, that power and its exercise cannot be restricted by any Act of Parliament; there is no express constitutional provision—see per Andrew J. in Constitutional Reference No. 1 of 1979 (supra)[cliii]19 at p. 401. So, for example, a privative clause would be of no effect—see the illustration by Pritchard J. in In re Moresby North East Election Petition; Patterson Lowa v. Goasa Damena[cliv]20. Contrast the Constitution, ss. 155(3)(a) and 155(3)(e), as regards the National Court.
N1>Whether the power is to be exercised in a particular case must always remain wholly a matter for this Court, in its discretion. I consider that it is a truly discretionary jurisdiction, of much the same type as that of the Privy Council in exercising what the common law recognizes as its inherent prerogative to grant special leave to appeal, though an applicant has no right by statute to appeal.
N1>I consider that this Court’s discretionary and reserve power under the Constitution, s. 155(2)(b), is additional to the power and jurisdiction vested in the court under the Constitution, s. 155(2)(c); this appears clearly from the language used. The latter is dependent in part on the exercise of legislative power by Parliament; the former is not. The latter is subject to limits imposed by Acts; the former is not.
N1>It is to be expected that the final court of appeal in the National Judicial System would be expressly vested by the Constitution with a discretionary jurisdiction of the type in the Constitution, s. 155(2)(b), so as to ensure the dispensation of justice; it is a common feature of many judicial systems. The policy of the Constitution in this respect is made strikingly clear in s. 155(5) as regards the National Court.
N1>No distinction is to be drawn in my opinion, as regards the Constitution, s. 155(2)(b), between the concepts of “jurisdiction” and “power”. In normal language usage, “jurisdiction” connotes the authority of a court to exercise judicial power in a specific case; while “judicial power” is the totality of the powers of a court, when it embarks upon the hearing of a case within its jurisdiction. The Constitution, s. 155(2)(b), however, vests in the court an unrestricted authority to review certain judicial acts; and that, in effect, is a grant of jurisdiction. A grammatical support for this view is the reference to “other jurisdiction” in the Constitution, s. 155(2)(c). Further, it appears that the “inherent power” in the Constitution, s. 155(4) is characterized as a “jurisdiction” in the Constitution s. 155(3)(d), although the “power” there referred to in fact accords more closely with the strict sense of the word. The Constitution, s. 155(2)(b) and s. 155(2)(c), are clearly two distinct and separate heads of jurisdiction.
N1>I would accordingly uphold Mr. Wilson’s second submission. I consider that the applicant, a person affected by a judicial act of the National Court, lacking now any right to have that act reviewed, may yet ask this Court to exercise its inherent and discretionary power to review, under the Constitution, s. 155(2)(b); And the court may hear the appeal.
N1>Whether or not this Court would exercise that power and grant leave to appeal, depends on the circumstances of the particular case. It is wholly discretionary, but I think that in general leave would be granted only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity.
N1>Some guide perhaps may be obtained from a consideration of the grounds upon which the Privy Council grants special leave to appeal in criminal cases pursuant to the inherent prerogative power; see the cases cited in Halsbury[clv]21, especially R. v. Bertrand[clvi]22; and in the A. Digest[clvii]23. The jurisdiction is seen as one of last resort; briefly, for its history, see Nadan v. The King[clviii]24. It is to be noted that the Privy Council does not exercise this jurisdiction as would a court of criminal appeal; see the Practice Note at (1932) 48 T.L.R. 300.
I consider that the following order should now be made:
“The applicant has leave to adduce evidence by affidavit, in support of her application for leave to appeal. The nature of the case, the questions involved, and the reasons why leave to appeal should be given, should also be set out therein. The affidavit should be served on the respondent within fourteen days; and any affidavit in reply should be served on the applicant within a further fourteen days. The hearing stands adjourned until 28th April, 1981.”
GREVILLE SMITH J: In this matter I have had the benefit of reading in draft the judgments of his Honour the Chief Justice and his Honour, the Deputy Chief Justice and I respectfully agree with the conclusion of each and, generally, with the reasons respectively given therefor, that the applicant, by effluxion of time, lost her right to apply for leave to appeal under the provisions of s. 37(15) of the Constitution and s. 27 of the Supreme Court Act.
With great respect, however, I am unable to agree that the applicant has any recourse under the provisions of s. 155(2)(b) of the Constitution.
Section 155 falls within Div. 5 of the Constitution which is entitled “The Administration of Justice” and within sub-division A thereof which is entitled “General Structure and Principles of the National Justice Administration”. The provisions of s. 155, inter alia, designate the components of the National Judicial System as the Supreme Court, the National Court and such other courts as are established under s. 172, and in general terms establish the functions of each of the two component parts which are to come certainly and immediately into existence, namely the Supreme Court and the National Court, and their relationship to one another. Section 155(2)(a) provides that the Supreme Court is the final court of appeal and s. 155(2)(b) provides that it has an inherent power to review all judicial acts of the National Court. Section 155(3)(a) provides that the National Court has an inherent power to review any exercise of judicial authority.
I do not read the provisions of s. 155(2)(b) as investing the Supreme Court with unlimited power, or an unlimited discretion, to review judicial acts of the National Court any more than I would read the provisions of s. 155(3) as investing the National Court with an unlimited power or an unlimited discretion to review. In my view these provisions are intended to be descriptive of the general nature of such courts.
Individual provisions of the Constitution should not be read in isolation, but having regard to the Constitution as a whole and so as to give each provision proper scope having regard to the total context. The Constitution, as well as introducing the provisions in the sections already mentioned, also provided, inter alia, by s. 20(2) that the underlying law of Papua New Guinea shall be as prescribed in Sch. 2. Schedule 2.2(1) and (2) provides as follows:—
N2>“Sch. 2.2 ADOPTION OF A COMMON LAW
(1) Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that—
(a) they are inconsistent with a Constitutional Law or a statute; or
(b) they are inapplicable or inappropriate to the circumstances of the country from time to time; or
(c) in their application to any particular matter they are inconsistent with custom as adopted by Part 1.
(2) Subject to Subsection (1)(a), (b), and (c), the principles and rules adopted under Subsection (1) include principles and rules relating to the Royal Prerogative, except insofar as they provide for—
(a) a power to declare martial law; or
(b) a power to grant letters of denization or similar privileges; or
(c) a power to do any other act, provision for the doing of which is made by a Constitutional Law or an Act of the Parliament.”
In my opinion the concepts of appeal and of inherent power to review referred to in s. 155 are, in general, those concepts, often so referred to, which were familiar in this country prior to Independence and which were drawn from the English Common Law which deals extensively and in detail with such concepts. In my opinion such law became part of the underlying law and prescribes the nature and extent of the power to act as an appellate court or as a court of review and the circumstances in which the Supreme Court and the National Court will so act.
There is an essential distinction between a judicial review by way of appeal and a judicial review dependent on an inherent power and that distinction is that no appeal lies except where one is expressly given by statute but that the inherent power to review (within the limitations to its use laid down in the common law) is deemed always to have existed. Proceedings by way of certiorari, for instance, were in origin proceedings dependent upon an inherent power to review. In Furtado v. City of London Brewery Company[clix]25 Swinfen Eady L.J. delivering the judgment of the court and referring to the authority of R. v. Hanson[clx]26 said:—
“The rule of law is that although a certiorari lies unless expressly taken away, yet an appeal does not lie unless expressly given by statute.”
It seems to me that if the inherent power to review referred to in s. 155(2)(b) were unlimited in extent then there would never be any need for any appeal to be provided by statute, and no need for the reference to the Supreme Court as a “Court of Appeal” which occurs in s. 155(2)(a).
It was not suggested by counsel for the applicant that the applicant had any means of obtaining relief by invoking any of the inherent common law powers to review, and such a proposition would have been contrary to principle. The legislature has seen fit, rightly or wrongly, wisely or unwisely, to limit the appellate review by the Supreme Court of sentences imposed by the National Court by providing a time limit, not subject to any qualifications or exemptions, and not subject to extension, within which notice of appeal must be lodged. In my view, it would be inappropriate in those circumstances for the Supreme Court to attempt to circumvent this provision by reference to an inherent power. The court will not trespass on ground legitimately reserved by the legislature to itself. (See R. v. Electricity Commissioners, ex parte London Electricity Joint Committee Co.[clxi]27 per Bankes L.J. at p. 192 and Younger L.J. at 212; R. v. Hastings Local Board of Health[clxii]28 per Cockburn J. at p. 1245) and in my view this is, in part at least, the basis of the rule that the court will not allow prerogative writs to be used to impeach the correctness of a decision made by a court of competent jurisdiction where the alternative remedy of an appeal is available, or might have been provided by the legislature. Habeas corpus ad subjiciendum is a prerogative writ, that is, one dependent on an inherent power (see Halsbury’s Laws of England— 4th ed., p. 770, par. 1455). The courts have refused to allow proceedings by way of this writ or other inherent power to be used as a means of questioning a decision of a court of competent jurisdiction where an alternative remedy by way of appeal is available, even when the time for appeal has expired. In R. v. The Commanding Officer of Morn Hill Camp, Winchester[clxiii]29 Lord Reading C.J. said at p. 179:
“In the present case there is no doubt as to the jurisdiction of the magistrate. It is not suggested that he was not the proper tribunal to deal with the case. It is suggested that he came to a wrong conclusion. But if an erroneous decision of a magistrate entitled a party detained by the magistrate’s order to come to this Court for a writ of habeas corpus, that writ would furnish a ready means of appealing to this Court from every decision of a magistrate ordering the detention of an offender. If there were no means of questioning a magistrate’s order, there might be some ground for invoking the assistance of this Court in the way chosen in this case, but there is a well-known procedure by way of special case whereby the decisions of magistrates can be inquired into. In my opinion we have no jurisdiction to interfere in such a case as the present. The law on this matter is well stated by Lord Denman C.J. in Reg. v. Bolton 1 Q.B. 66, 72: “The case to be supposed is one like the present, in which the Legislature has trusted the original, it may be (as here) the final, jurisdiction on the merits to the magistrates below; in which this Court has no jurisdiction as to the merits either originally or on appeal. All that we can then do, when their decision is complained of, is to see that the case was one within their jurisdiction, and that their proceedings on the face of them are regular and according to law. Even if their decision should upon the merits be unwise or unjust, on these grounds we cannot reverse it.” It is true that Reg. v. Bolton 1 Q.B. 66, 72 was a case of a certiorari, but the same principles apply in the case of a habeas corpus. We cannot, therefore, interfere in this case.”
Darling J. said at p. 180:
“If a magistrate comes to a wrong decision in fact or in law he may be asked to state a case; if he refuses he may be ordered to do so. The prosecutor therefore had a remedy. He desired a more expeditious remedy, but that is no reason why this Court should be permitted to enlarge its jurisdiction. The Court is not to be called upon to entertain appeals from all magistrates who decide wrongly as soon as the decision is given.”
In Ex parte Corke[clxiv]30 Corke asked for a writ of habeas corpus, his complaint being that he was wrongly convicted or convicted on prejudiced evidence. Lord Goddard C.J. reading the judgment of the Court of Appeal said as follows:
“It is as well that persons serving sentences passed on them by courts of competent jurisdiction should understand that habeas corpus is not a means of appeal... In this case, it is perfectly clear that, unless the conviction was set aside by a court of appeal (and the time for appeal is long gone by), he is lawfully in custody, serving a lawful sentence, and his application for a writ of habeas corpus is, therefore, refused.” (Emphasis mine.)
In my view this Court has no inherent power to review the sentence in question so as to alter it, or to provide for its alteration, or on its own established principles will not do so, which amounts to the same thing, the question of whether there should be a review and the nature and extent of such review and the circumstances necessary to found it having been legitimately dealt with by the legislature.
In my view consideration of the provisions of Sch. 1.5(2) that “All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning” and of s. 158 of the Constitution that “In interpreting the law the courts shall give paramount consideration to the dispensation of justice” do not derogate from the views I have just expressed. The concepts expressed therein are in my opinion concepts which are long established in and fundamental to the law in England which the founders of the Constitution saw fit to adopt. More than one hundred years ago, in a very different kind of matter Lord Abinger C.B. (Russell v. Smyth)[clxv]31 said: “The maxim of the English law is to amplify its remedies, and, without usurping jurisdiction, to apply its rules to the advancement of substantial justice.” (Emphasis mine.)
N1>Now it is true that “the judicial authority of the People is vested in the National Judicial System” (s. 158(1) of the Constitution) but “the legislative power of the People is vested in the National Parliament” (s. 100). The legislature has legitimately dealt with the matter of the conditions precedent to the Supreme Court quashing a sentence of the National Court and imposing a lesser one. For this Court to say that notwithstanding these valid legislative provisions it has a discretionary power to “review” the sentence in question would to my mind be to amend the legislative provision—to usurp the function of the legislature—to legislate. Alternatively, it would be to decline to enforce the legislation. I am quite sure that this was not the intention of the relevant constitutional provisions.
N1>Nor can I accept the proposition that the Supreme Court has an unfettered discretion to review, if this means that it can make “ad hoc” decisions to review without guidance or restraint from established principles—making up its law as it goes along, so to speak. I am sure that it was not the intention of the legislature to confer such an unbridled power—a power unrestrained by principle and unrestrainable by the legislature.
“there is no court in England which is entrusted with the power of administering justice without restraint. That restraint has been imposed from the earliest times. And, although instances are constantly occurring where the courts might profitably be employed in doing simple justice between the parties, unrestrained by precedent, or by any technical rules, the law has wisely considered it inconvenient to confer such power upon those whose duty it is to preside in courts of justice. The proceedings of all courts must take a defined course, and be administered according to a certain uniform system of law, which, in the general result, is more satisfactory than if a more arbitrary juisdiction was given to them. Such restrictions have prevailed in all civilised countries; and it is, probably, more advantageous that it should be so, though at the expense of some occasional injustice.”
(Per Maule J., Freeman v. Tranah[clxvi]32).
“... discretion, when applied to a Court of Justice, means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful; but legal and regular.”
(Per Lord Mansfield C.J., R. v. Wilkes[clxvii]33).
N1>As I have already said, in my view the principles upon which the Supreme Court was intended to exercise its power to review are to be found in the adopted common law, and those do not avail the applicant.
N1>I would refuse the application for leave to appeal and make no further or other order.
N1>ANDREW J: This application raises difficult and important questions involving a convicted person’s right of appeal. The task of this Court is not made any simpler by the fact that the applicant is serving a sentence of life imprisonment.
N1>I have had the advantage of reading the judgments of the Chief Justice, the Deputy Chief Justice, Greville Smith J. and Kapi J. and I agree with the reasons given that the applicant has lost her right to appeal by her failure to comply with s. 27 of the Supreme Court Act, 1975.
N1>I find greater difficulty in the construction of s. 155(2)(b) of the Constitution and whether or not it gives the Supreme Court an absolutely unfettered power to review decisions of the National Court and thereby enable this Court to review the sentence passed upon the applicant.
N1>Section 155(2) of the Constitution is as follows:
N2>“155(2) The Supreme Court—
(a) is the final court of appeal; and
(b) has an inherent power to review all judicial acts of the National Court; and
(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.” (Emphasis mine)
The question, as I perceive it to be, is whether the Constitution, s. 155(2)(b) overrides the statutory jurisdiction conferred by s. 27 of the Supreme Court Act which imposes time limits in which an appeal may be brought by a convicted person.
The jurisdiction of the Supreme Court derives from the Constitution, s. 162 which provides, inter alia, that the jurisdiction is as set out in s. 155 of the Constitution and “otherwise as provided by this Constitution or, any other law”.
In order to determine that question I think it is necessary to consider the “ ‘inherent power’ to review all judicial acts of the National Court”, and to do so it is necessary to understand the common law meaning of the words “inherent power”. Schedule 2.2 of the Constitution adopts the rules of common law and equity as part of the underlying law and I see nothing inappropriate in resorting to the common law where that term has its origin and where there is an apparent conflict between s. 155(2)(b) of the Constitution and s. 27 of the Supreme Court Act which itself is a law conferring jurisdiction on the Supreme Court as indicated by ss. 155 and 162 of the Constitution.
The superior courts of common law have exercised the power which has come to be called “inherent jurisdiction” from the earliest times, and the exercise of such power developed along two paths, namely by way of regulating the practice of the court and preventing the abuse of its process. See Master Jacob “The Inherent Jurisdiction of the Court”, Current Legal Problems, (1970), 23, 25-26.
The jurisdiction to exercise these powers was derived, not from any statute or rule of law, but from the very nature of the court as a superior court of law, and for this reason such jurisdiction has been called “inherent”.
Master Jacob commences his article in this way:
“In many spheres of the administration of justice, the High Court of Justice in England exercises a jurisdiction which has the distinctive description of being called ‘inherent’. The inherent jurisdiction of the court may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy the challenge to determine its quality and to establish its limits. Yet there are insistent questions about inherent jurisdiction which demand and deserve an answer, such as, what is its nature, its juridicial basis, its limits, its capacity to diversify, and its claim to viability. An attempt to provide some answers may help to throw a little light upon an important, though perhaps somewhat unchartered, area of English procedural law.
To understand the nature of the inherent jurisdiction of the court, it is necessary to distinguish it first from the general jurisdiction of the court, and next from its statutory jurisdiction.
The term ‘inherent jurisdiction of the court’ does not mean the same thing as ‘the jurisdiction of the court’ used without qualification or description: The two terms are not interchangeable, for the ‘inherent’ jurisdiction of the court is only a part or an aspect of its general jurisdiction. The general jurisdiction of the High Court as a superior court of record is, broadly speaking, unrestricted and unlimited in all matters of substantive law, both civil and criminal, except in so far as that has been taken away in unequivocal terms by statutory enactment. The High Court is not subject to supervisory control by any other court except by due process of appeal, and it exercises the full plenitude of judicial power in all matters concerning the general administration of justice within its area. Its general jurisdiction thus includes the exercise of an inherent jurisdiction.
Moreover, the term ‘inherent jurisdiction of the court’ is not used in contradistinction to the jurisdiction conferred on the court by statute. The contrast is not between the common law jurisdiction of the court on the one hand and its statutory jurisdiction on the other, for the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision. There is, nevertheless, an important difference between the nature of the inherent jurisdiction of the court and its statutory jurisdiction. The source of the statutory jurisdiction of the court is of course the statute itself, which will define the limits within which such jurisdiction is to be exercised, whereas the source of the inherent jurisdiction of the court is derived from its nature as a court of law, so that the limits of such jurisdiction are not easy to define, and indeed appear to elude definition.”
It goes without saying that the Supreme Court is also a superior court of record whose jurisdiction is unrestricted and unlimited in all matters of substantive law, both civil and criminal.
As to the extent of “inherent power” in criminal proceedings the House of Lords in Connelly v. Director of Public Prosecutions[clxviii]34 (per Lord Morris) said:
“There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.”
A question more akin to the present one arose in R. v. Jefferies[clxix]35. In that case an appellant died before his application for leave to appeal was heard. His widow and sole executrix sought to pursue the application. Neither the Criminal Appeal Act, 1922 (U.K.) nor the rules made any provision for the continuance of an appeal after the death of the convicted person. The court of criminal appeal held that there was no procedure whereby the executrix could be substituted as an appellant and was unable to see that the court had any inherent power to allow this when the appeal itself was the creature of statute.
N1>I have gone to some lengths to outline the meaning and nature of the term “inherent power”, it being “this peculiar concept... so amorphous and ubiquitous and so pervasive in its operation that it seems to defy the challenge to determine its quality and to establish its limits”. I think however that it is clear enough that in general an inherent power must give way to any statutory provision with which it is in conflict.
N1>If the Supreme Court’s power of review was an inherent one, in the common law sense, that is, a power which had developed in an historical way as outlined by Master Jacob, I would have no hesitation in finding that it must give way to s. 27 of the Supreme Court Act when, as here, a convicted person had failed to lodge an appeal within the requisite time limits, and I think that R. v. Jefferies (supra)[clxx]36 (applied in Re Central Funds Costs Order[clxxi]37) is ample authority on that point. But the Constitution has adopted those words into s. 155(2)(b) to read:
N2>“155(2) The Supreme Court—...
(a) ...
(b) has inherent power to review all judicial acts of the National Court; and
(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.”
Section 155(2)(b) is a grant of power and jurisdiction to the Supreme Court. This is made clear by s. 162 of the Constitution, and by the words of s. 155(2)(c), “has such other jurisdiction and powers as are conferred on it...” I think it is the use of the term “inherent jurisdiction” in the Constitution which causes some confusion. Section 155(2)(b) is granting a power which the word “inherent” suggests was always there anyway. To that extent I think the word is superfluous but to my mind it does by its ordinary or common law meaning imply that the jurisdiction granted is a discretionary one.
The Constitution is the supreme law of Papua New Guinea and all acts (whether legislative, executive or judicial) that are inconsistent with it are, to the extent of the inconsistency, invalid and ineffective: the Constitution, s. 11. The powers given to the Supreme Court by s. 155(2)(b) are unfettered. This is also made clear by the Constitution, for s. 155(3) gives the National Court an inherent power to review any exercise of judicial authority but this power is subject to removal or restriction. The Constitution places no such limitation on the Supreme Court.
For these reasons it is my view that it is the grant of power and jurisdiction to the Supreme Court by the Constitution in s. 155(2)(b) which means that the court has a discretionary power to review the sentence passed upon the applicant. That power cannot be subject to or restricted by the Supreme Court Act, 1975.
I concur with the Deputy Chief Justice that the applicant be given leave to adduce by affidavit such evidence as she sees fit in support of her application and I agree with his outline of the procedure to be adopted.
KAPI J: The applicant, Avia Aihi, was charged with the offence of wilful murder in 1979. She pleaded guilty to the charge and was convicted by the National Court on 16th March, 1979. She was sentenced to life imprisonment on 17th March, 1979.
Since her sentence the applicant has not spoken to a lawyer about appealing against this sentence. She was represented by counsel at the National Court. Apparently the lawyer who represented her left the country not long after her sentence. It has been suggested that the applicant spoke to various correctional officers about speaking to a lawyer regarding the possibility of appealing against sentence but the opportunity was not given to her. The first opportunity she had was when she spoke to officers of the Public Solicitor early in 1980. As a result of instructions received from the applicant, the Public Solicitor took steps to file an application for leave to appeal against sentence in May 1980. This was more than twelve months after sentence.
It appears from the circumstances of this case that two preliminary points need determination before this Court can deal with the appeal on its merits. The first issue is whether the applicant has a right to apply for an extension of time in which to file application for leave to appeal against sentence. And the second issue is if she has the standing or the right to apply for an extension of time, should this Court, as a matter of discretion, grant the extension of time in which to file notice of application for leave to appeal against sentence in the circumstances of this case?
It has been agreed between counsel to argue the two issues in stages. The arguments before the court were confined to the first issue. The first issue is a pure question of law and does not involve any consideration of facts.
It is necessary to set out the provisions of the Supreme Court Act, 1975, which led to the application to extend time. The Supreme Court Act, 1975 governs any appeals by a convicted person against sentence. Under s. 21 of the Act a person convicted by a judge of the National Court and sentenced may appeal against sentence with the leave of the court. Section 27 of the Act regulates the time in which a convicted person may give notice of application for leave to appeal against sentence which is forty days from the date of sentence. This section also allows a convicted person to make an application for an extension of this forty days but such an application can only be made within that same forty day period. It is clear from these provisions that a person wishing to appeal against sentence may not file application for leave to appeal against sentence outside the forty day period and may not make an application for an extension of time outside the same forty day period. Both counsel made their submissions on the assumption that the applicant has lost right of appeal and right to extend time. The question which arises for consideration in view of the forty day limit is whether the applicant has any right or standing to make this application for an extension of time. It is significant to emphasise at this point that the issue before this Court is a question of locus standi. The Court is to consider whether the applicant has any standing or right to make this application under the provisions of the Supreme Court Act and the Constitution.
The issue raised by this preliminary point is two-fold. The first is, as I have stated before, whether the applicant has the right to come to this Court, and secondly, whether the Supreme Court has any power or jurisdiction to extend time.
Counsel for the applicant submitted that she has the right or the standing to make this application for an extension of time. This submission was put in the following way. It was submitted that the applicant has an absolute right to appeal under s. 37(15) of the Constitution. Even though the right to appeal and the right to extend time to appeal has expired, this constitutional right of appeal can still be enforced under s. 57 of the Constitution. He further submitted that the Supreme Court has the power or the jurisdiction to extend the time under s. 155(2) and (4) of the Constitution. Counsel for the applicant has not suggested, throughout his submission that s. 27 of the Supreme Court Act, 1975 is invalid. In other words, he did not contend that s. 27 is inconsistent with s. 37(16), or s. 155(2) and (4) of the Constitution.
Counsel for the State submitted that under the provisions of the Supreme Court Act the applicant has no right to make this application. He submitted that s. 37(15) and s. 155(2) and (4) of the Constitution are not applicable.
In order for the applicant to be successful she must satisfy the court that, first, she has the right to apply and, secondly, that the Supreme Court has the power or jurisdiction to extend the time. The two issues are separate and do not go together. One deals with a right given to a person, and the other deals with a power given to the Supreme Court. The power to extend time does not necessarily give the right to any person to invoke that power. The power to extend time has nothing to do with who has the right to invoke that power.
THE RIGHT TO APPLY
The right to extend time is always coupled with the right to appeal. A person has a right to extend time if he has a right to appeal. If he has no right of appeal he has no right to extend time. The appeal procedure is a statutory creature. A statute normally sets out the powers of the appellate tribunal as to what it can and cannot do, who has the right to appeal, the time in which to appeal and deals with other things like what matters of fact or points of law can be appealed to the appellate tribunal. Before Independence, these matters were set out in the Supreme Court (Full Court) Act, 1968. These matters are now governed by the Supreme Court Act, 1975. The Supreme Court Act has to be read subject to the provisions of the Constitution: (s. 10 of the Constitution). As to the powers of review of the Supreme Court, the Supreme Court Act is to be read subject to s. 155(2)(b) of the Constitution. As will be seen later on in my judgment, this constitutional provision only deals with the power to review all acts of the National Court, but does not deal with all the details of the appeal procedure. For instance, it does not deal with who has the right to appeal, the time in which to appeal, the right to extend time, the grounds of appeal on questions of fact and law, etc. These are matters which are dealt with by the Supreme Court Act. As to who can appeal, this is to be found in the Supreme Court Act rather than under s. 155(2)(b) of the Constitution.
On criminal matters only convicted persons may appeal to the Supreme Court against conviction or sentence under s. 21 of the Act. Nobody else, apart from the convicted person, is given the right to appeal. Under s. 23 of the Act the Public Prosecutor has the right to appeal against sentence. We are here only concerned with appeals by convicted persons. The issue in this case is whether the applicant has the right to apply for an extension of time. There is nothing in the Constitution which deals with this issue. The only provision under the Constitution which deals with extension of time limits is Sch. 1.16 which provides:
“Where in a Constitutional Law a time limit is imposed for the doing of an act (whether the provision is mandatory, directory or permissive, and whether it is positive or negative), and in a particular case it is not practicable to comply with that limitation, the period shall be deemed to be extended by whatever period is necessary to make compliance practicable.”
In this case the forty day limit is not provided by constitutional law and therefore this provision is not applicable. This brings us back to the Supreme Court Act. The applicant has no right or standing to bring the application under the provisions of the Supreme Court Act.
Counsel for the applicant then relied on certain provisions of the Constitution. He first argued that the applicant has an absolute right of appeal under s. 37(15) of the Constitution and despite the operation of s. 27 of the Act, the applicant has a right to enforce this absolute right of appeal under s. 57 of the Constitution.
Before I consider the merits of these submissions, I shall first consider a submission by counsel for the State, namely that s. 37(15) of the Constitution is not applicable because it deals with a “review” and not an “appeal”. He tried to distinguish between the use of the word “appeal” in s. 37(16) and “review” in s. 37(15). In my view there is no difference between the use of the words “appeal” and “review” under s. 37(15) and (16) of the Constitution. As far as this case is concerned these terms refer to the same process. The word “appeal” is used when a person who is given the right to appeal is invoking the power of the appellate court to review a decision of a lower court. The word “review” is used to describe the same process from the point of view of the appellate tribunal which is exercising the power to hear the appeal by the person appealing. As a matter of English language, you cannot say that the appellate tribunal is exercising a right of appeal or is appealing a decision of a lower court, nor can you say a person who is appealing is exercising their right to review, or is reviewing against a decision of a lower court. It follows that under s. 37(15) you cannot say that every person convicted of an offence is entitled to have his conviction and sentence appealed by a higher court or tribunal, according to law. In the same way, you cannot say that under s. 37(16) no person shall be deprived by law of a right of review against his conviction or sentence by any court that existed at the time of the conviction or sentence as the case may be. In so far as the use of the words “appeal” and “review” are concerned they are referring to the same process. However, the word “review” is wide enough to include the power of the court to review any act of the National Court by way of prerogative writs. We are not concerned with this type of review in this case. In this case we are concerned with review by way of an appeal. As far as appeals from the National Court to the Supreme Court are concerned, the right of a person to appeal or extend time in which to appeal is provided for under the Supreme Court Act.
I now consider the effect of s. 37(15) and s. 57 of the Constitution. The right of appeal given to convicted persons under s. 37(15) of the Constitution is no different from the right of appeal given to them under the various Acts, the Village Courts Act, the Local Courts Act, the District Courts Act and the Supreme Court Act. However the right guaranteed under the Constitution is superior law and no Act can take it away. The right of appeal given under the constitutional provision also has the benefit of other constitutional provisions as far as enforcement of this right is concerned. Counsel for the applicant submitted that, even though under s. 27 of the Supreme Court Act, the applicant is deprived of the right to appeal and the right to extend time, the applicant can enforce this right of appeal under s. 57 of the Constitution. In my view s. 57 of the Constitution does not assist the applicant. The right of appeal which may be enforced under s. 57 of the Constitution is the right of appeal which is according to law.
What is meant by according to law? In my opinion this phrase refers to the whole body of law defined under s. 9 of the Constitution. In reviewing a sentence of a lower court by the appellate court, the conviction and sentence shall be reviewed according to the relevant law under which the person was convicted and sentenced. This phrase also includes the manner in which the appeal is to be dealt with. In the present case this includes the Supreme Court Act which sets out the right of appeal and the right to extend time. The right which may be enforced under this provision is the right of appeal according to law. According to law and in this case, according to the Supreme Court Act, s. 27, a person has a right to appeal or make an application for leave to appeal within forty days. According to the Supreme Court Act a person may only have the right to extend time within the forty day period. However, when the forty day limit period has expired and the person convicted has not invoked that right, that person loses the right to come before the court. In other words a convicted person may only enforce this right under s. 57 within the forty day limit.
Counsel for the applicant also relied on s. 155(4) of the Constitution. He submitted that the Supreme Court, in the exercise of its power under this provision may give the right to the applicant to make this application even though she has lost this right by the operation of s. 27 of the Supreme Court Act. In my view this section does not assist the applicant’s case either. This section cannot and does not give this Court the power to do anything contrary to what the law says. The orders referred to in this provision can be made only pursuant to a principle of law and cannot disregard a provision of the Constitution or a statute.
The orders that can be given under s. 155(4) of the Constitution are based on two assumptions. Firstly that the person who seeks the order has the right (or standing) to apply for the order and secondly, the Supreme Court has the power or jurisdiction to make the order sought. The provision itself does not give the right and the power.
In determining whether a person has the right and whether the Supreme Court has the power, this has to be determined in accordance with the law on the subject. In my opinion these matters cannot be determined under s. 155(4). The orders that can be sought under such general provision are too numerous, it is difficult to see how this provision can cover all of them.
In this case one still has to ask the question, has the applicant got the right to apply for extension of time? Under the Supreme Court Act she has lost this right.
Can it be argued that under s. 155(4) it would do justice to extend time because it was not her fault that she did not apply within forty days? In my view this cannot be so. “Justice” under this provision means justice according to law. This section is to be interpreted in the light of the doctrine of separation of powers under s. 99 of the Constitution. The law making powers of the National Parliament have to be kept separate from the functions of the judiciary.
If this Court ruled that it can give a right to apply to the applicant under s. 155(4) of the Constitution contrary to s. 27 of the Supreme Court Act then this would have the peculiar effect in that this Court would have power to disregard or override clear provisions of the statutes. This, in effect, would amount to amendment or repeal of legislation by judicial power. Such an interpretation would put this Court above the legislature and it could make orders against the clear provisions of legislation if it thought the legislation was unfair or did not do justice.
Such an interpretation would violate the doctrine of separation of powers.
None of the cases referred to by counsel actually dealt with this provision. In The State v. Luku Wapulae and Four Others[clxxii]38 Narokobi A.J. in imposing customary punishment, referred to s. 155(4) of the Constitution amongst other provisions as the basis for imposing such penalty. His Honour did no more than refer to the provision. He did not fully discuss its meaning.
This case went on appeal to the Supreme Court[clxxiii]39. Unfortunately counsel did not raise the provision on appeal and the court did not consider it. In my view it would not have made a difference to the conclusion of the Supreme Court. I was a member of that court. I held that there was no power in the National Court to impose any other punishment than is laid down in the Criminal Code.
N1>It follows from the interpretation I have given to s. 155(4) of the Constitution that the order of customary punishment was wrong as the National Court had no power to make it.
N1>In my view the relevance of s. 155(4) arises at a later stage. When it has been established that the applicant has the right to apply and that the court has power to extend time, then in the second stage of these proceedings the court may consider whether in the exercise of its discretion it ought to extend time.
N1>Finally it was argued that the Supreme Court has power to restore the right of the applicant to extend time in which to appeal. This argument is based on the inherent power of the court to review under s. 155(2)(b) of the Constitution.
N1>Counsel for the State once again submitted that s. 155(2)(b) does not apply because it deals with judicial review and is not applicable to judicial review by way of appeal as in this case. There appears to be some merit in this submission in that s. 155 seems to break up the heads of power into four groups (appeal s. 155(2)(a), review s. 155(2)(b), other powers conferred by the Constitution or law s. 155(2)(c) and prerogative writs and orders under s. 155(4) of the Constitution). However, I would give this section the same interpretation as in relation to s. 37(15) of the Constitution in that the word “review” here includes the appeal procedure. I must admit that I found the arguments of counsel for the State very attractive in that s. 155(2)(b) is a power separate and different from powers of appeal under s. 155(2)(a) and powers relating to prerogative writs; s. 155(4) of the Constitution. However if I were to come to this conclusion, power under s. 155(2)(b) would be an entirely different concept to judicial review by way of appeal under a statute, and judicial review by way of prerogative writs. Such a concept would be completely new under our law. Having read the Final Report of the Constitutional Planning Committee on the powers of the Supreme Court I do not find that there is an intention on the part of the constitutional framers to introduce such a new concept of review. The point I am making is that s. 155(2)(b) deals with general powers of review by way of appeal and power of review by way of prerogative writs.
N1>Can the applicant find any assistance under s. 155(2)(b)? This provision deals with the power to review any act of the National Court. This power to review is no different from the power of review given to the Supreme Court by the Supreme Court Act. In my view there is no magic in the words “an inherent power to review all judicial acts of the National Court”. The inherent power to review all judicial acts of the National Court simply means that power which is essential to the existence and function of the court from the very fact that it is the final court of appeal. It needs no constitutional provision to say it. It is inherent in the court by the very nature of its existence as the final court of appeal. However the framers of the Constitution chose to put this in the Constitution, s. 155(2)(b). In the context of review by way of prerogative writ, this Court has inherent power at common law to supervise the proceedings of the inferior courts. This power is now inherent in the Constitution (s. 155(2)(b)—in relation to acts of the National Court and s. 155(4) in relation to other bodies). However, the procedure to obtain such a writ and grounds for granting such writ still remain the subject of Rules of Court and the common law as may be adopted or rejected under Sch. 2:2 of the Constitution. The only difference now is that no Act of the Parliament can take this power away. Any Act of the Parliament which seeks to take this power away will be declared invalid. Section 27(2) of the Supreme Court Act does not affect the power of review under s. 155(2)(b) of the Constitution. The power of the court to review a sentence imposed by the National Court still remains. Only that this particular applicant has lost the right to invoke that power. What then is the extent of this power? As I have already pointed out this power is to review all acts of the National Court. However, the power of review can only be exercised if it is invoked by a person who has the right to appeal. Who can invoke such power? In my view s. 155(2)(b) cannot be of any assistance in determining who is entitled to invoke that power. It does no more than simply invest a power to review in the Supreme Court but does not give it the power to determine who may appeal and other incidental matters regarding the appeal procedure. In my view it certainly does not give it the power to determine who may have a right to extend time. These are matters which are determined by the Parliament in the Supreme Court Act.
N1>In considering the preliminary issue, s. 155(2)(b) cannot be of any assistance. It should be noted that s. 155(2)(b) is only concerned with reviewing acts of the National Court. The preliminary issue raised in this case is not an act of the National Court but an operation of s. 27 of the Supreme Court Act. The appeal against sentence which is the act of the which is the act of the National Court has not yet come before this Court. I see no difficulty in the Supreme Court reviewing the sentence in this case under s. 155(2)(b) provided the applicant has a right of appeal and can bring the notice of application for leave to appeal against sentence. I find that there is nothing in the Supreme Court Act or the Constitution which gives the applicant can the right to apply for an extension of time.
N1>In common law the court has no inherent power to give anyone a right appeal if he is not given a statutory right to appeal. See R. v. Jefferies[clxxiv]40. That was a case where a man had been convicted of conspiring to cheat and defraud and was sentenced to thirteen months imprisonment and ordered to pay a substantial sum towards the prosecution costs. He gave notice of appeal against conviction and sentence. However he died before his application was heard. The widow of this man then wished to pursue the application for leave to appeal. The Court of Criminal Appeal held that there was no inherent power in the court to grant the widow a right to appeal as a matter of right to appeal is the creature of the statute and is confined to the convicted person himself. This case was followed in Re Central Funds Costs Order[clxxv]41. I also find the common law cannot assist the applicant.
N1>The matter of appeal procedure, and particularly the right of appeal, is a statutory matter. In R. v. West Kent Quarter Sessions Appeal Committee. Ex parte Files[clxxvi]42 Lord Goddard C.J. said, at p. 730:
“It is most elementary that no appeal from a court lies to any other court unless there is a statutory provision which gives a right of appeal. The decision of every court is final if it has jurisdiction, unless an appeal is given by statute.” (emphasis mine).
Under our legal system the position is no different. Statutes give a right of appeal to a higher court. See Village Courts Act, Local Courts Act, District Courts Act and the Supreme Court Act. The right of appeal under these statutes is to be read subject to the right of appeal under s. 37(15) of the Constitution. Section 37(15) of the Constitution is much closer to the right of appeal than s. 155(2)(b) of the Constitution. However, the applicant cannot get any assistance from s. 37(15) because the right of appeal there is in accordance with the law which brings her back to the provisions of the Supreme Court Act. Section 155(2)(b) only deals with the power of review by the Supreme Court but does not deal with the right of a person to invoke that power or the right or the power of the Supreme Court to give a right of appeal to any person.
THE POWER OF THE SUPREME COURT TO EXTEND TIME
As I have pointed out, s. 155(4) of the Constitution cannot be of assistance. Again one has to find this power in the Supreme Court Act which sets out the appeal procedure. In my opinion the Supreme Court has power (jurisdiction) to extend time under s. 27(2) of the Supreme Court Act. The power to extend this time, in my view, is not limited by the forty day period. The following words of this subsection are important:
N2>“27(2) The time within which notice of appeal, or notice of an application for leave to appeal, may be given may be extended at any time by the Supreme Court...”
However, it is significant to note that such an order for an extension of time can only be made upon application made by a person who is entitled to apply for such extension. Under s. 27(2) of the Supreme Court Act a convicted person can only apply within the forty day period. At the most it can be said that the Supreme Court would have power to extend time under s. 155(2)(b) of the Constitution. The difficulty in the applicant’s case is that she has lost this right to invoke the power of the extension of time. Similarly, under s. 27(1) while the Supreme Court still has the inherent power to review the sentence in this case, the applicant has lost the right of appeal at the expiration of the forty day limit. The power to review and the power to extend time has nothing to do with the right of a person to invoke these powers. Consequently I find that the applicant has no right, or no standing, to make this application.
I appreciate that the provisions of the Supreme Court Act on limitation of time in which to appeal by convicted persons is too short. This is particularly so in view of the fact that most people who are convicted are uneducated and are ignorant of this limitation. However it is not competent of this Court to question the justice or injustice of a statute. The court can only investigate whether the Parliament in passing a statute has done so within the powers given under the Constitution. See Carltona, Ltd. v. Commissioners of Works and Others[clxxvii]43.
N1>It has not been suggested that s. 27 of the Supreme Court Act is contrary to a provision of the Constitution. I find that s. 27 of the Act is valid. It is not inconsistent with s. 155(2)(b) of the Constitution. They deal with different issues.
N1>Such injustice in a statute can only be remedied by the Parliament by an amendment to the Act.
N1>To find that s. 27 of the Supreme Court Act is validly enacted by the Parliament on the one hand and then on the other hand find that the Supreme Court has inherent jurisdiction to override the provision under s. 155(2)(b) to give the applicant a right to apply is, in my view, contrary to the doctrine of separation of powers. With respect, I find it difficult to resolve that this Court can override a provision of a validly enacted statute. Legislative power is vested in the National Parliament (s. 100 of the Constitution). Only the Parliament can amend a statute.
N1>This Court has peculiar power of formulating a new rule of law under Sch. 2:3 of the Constitution. The court can only do this if there is no applicable rule of law. In the instant case the provisions of the Supreme Court Act are directly on point.
N1>The substance of my decision then is this. The Supreme Court has an inherent power of review under s. 155(2)(b) of the Constitution to review all acts of the National Court. This power cannot be taken away by an Act of the Parliament.
N1>Section 27 of the Supreme Court Act has not been found to be inconsistent with s. 155(2)(b). This is because s. 27 deals with the right of persons to appeal rather than the power of review by the Supreme Court. The right of a person to appeal is given by the statutes. In the instant case the right of a person to appeal is restricted to within forty days by s. 27 of the Supreme Court Act. The restriction of the right of appeal under the Supreme Court Act is not inconsistent with the right of appeal guaranteed by s. 37(15) of the Constitution. The applicant is left with s. 27 of the Supreme Court Act. Section 27 of the Supreme Court Act can only be amended by the Parliament and not by this Court.
N1>The Deputy Chief Justice in his opinion appears to have stated that the Supreme Court has a special power to give leave to an applicant who has no right of appeal, such as the applicant in this case. He then stated that this is comparable to the common law powers of the Judicial Committee of the Privy Council in England. I agree that the Committee has the inherent power to grant special leave but the right of a person to request or petition this special leave is provided for in the statute. The statute also regulates the time in which to request such leave. The powers of the Privy Council and the practice and procedures of the Privy Council are regulated by statute. See The Judicial Committee Act, 1833. Section 3 provides for appeals. Section 20 provides for time in which to appeal. See also The Judicial Committee Act, 1844. Section 1 provides for appeals from the colonies.
N1>Petition for special leave is regulated by orders in Council. Petition for leave to appeal is regulated by Judicial Committee Rules, 1957. Rule 5 of these rules regulates the time in which to apply for special leave. Such a petition for special leave under this rule may be lodged at any time. A person may petition the Privy Council if leave is refused by the court appealed from. The right to do this is given by Judicial Committee Rules 1957, r. 2.
N1>I find that the right of a person to invoke the power of the Privy Council is given by statute and not by common law. However, the power to grant leave is an inherent power given to the Crown by common law. The applicant in this case has no right to apply for such special leave (if there is any) because there is no such right under our statutes, Constitution or the common law. Appeal against sentence pursuant to the provision of the Supreme Court Act is not by right. A person can only appeal by leave of the Supreme Court: (s. 21(d) of the Supreme Court Act). The same provision is made for appeal against conviction on questions of fact alone (s. 21(c)).
N1>There is no provision for a person to request “special leave” after the leave requested under the Act is refused. Even if there was a provision for “special leave”, it seems strange that the Supreme Court should consider the question twice.
N1>I would dismiss the application.
N1>The applicant has leave to adduce evidence by affidavit, in support of her application for leave to appeal. The nature of the case, the questions involved, and the reasons why leave to appeal should be given, should also be set out therein. The affidavit should be served on the respondent within fourteen days; and any affidavit in reply should be served on the applicant within a further fourteen days. The hearing stands adjourned until 28th April, 1981.
N1>Solicitor for the applicant: D. J. McDermott, Acting Public Solicitor.
Solicitor for the State: L. Gavara-Nanu, Acting Public Prosecutor.
[cxxxv]Infra pp. 83, 84.
[cxxxvi]Infra p. 84.
[cxxxvii]Infra pp. 83, 84.
[cxxxviii]Infra p. 84.
[cxxxix][1978] P.N.G.L.R. 404.
[cxl][1980] P.N.G.L.R. 33.
[cxli][1979] P.N.G.L.R. 174.
[cxlii]Unreported Supreme Court judgment SC 156 of 10th August, 1979.
[cxliii][1978] P.N.G.L.R. 404, at pp. 408, 409.
[cxliv][1979] P.N.G.L.R. 532.
[cxlv][1980] P.N.G.L.R. 33.
[cxlvi][1979] P.N.G.L.R. 174.
[cxlviii][1979] P.N.G.L.R. 174.
[cl][1979] P.N.G.L.R. 593.
[cli][1980] P.N.G.L.R. 379.
[clii][1979] P.N.G.L.R. 329, at pp. 337, 401.
[cliii][1979] P.N.G.L.R. 329, at p. 401.
[cliv][1977] P.N.G.L.R. 429, at p. 442.
[clv]Halsbury’s Laws of England, 4th ed. (1975), vol. 10, par. 786; (n. 1 and 2).
[clvi][1826] EngR 836; (1867) L.R. 1 P.C. 520; 10 Cox C.C. 618; 16 E.R. 391, P.C.
[clvii]33 A. Digest (2nd ed.), 465 to 474.
[clviii] [1926] A.C. 482, at pp. 491-2.
[clix][1913] UKLawRpKQB 221; [1914] 1 K.B. 709, at p. 710.
[clx](1821) 4 B. & Ald. 519, 521.
[clxi][1824] 1 K.B. 171.
[clxii](1865) 122 E.R. 1243.
[clxiii][1917] 1 K.B. 176.
[clxiv][1954] 2 All E.R. 440.
[clxv][1842] EngR 521; (1842) 152 E.R. 343, at p. 346.
[clxvi](1852) 12 C.B. 413-414; 138 E.R. 964.
[clxvii][1770] EngR 34; (1770) 4 Burr. 2527, at p. 2539; [1770] EngR 34; 98 E.R. 327, at p. 334.
[clxviii] [1964] 2 All E.R. 401, at p. 409.
[clxix][1968] 3 All E.R. 238.
[clxx][1968] 3 All E.R. 238.
[clxxi][1975] 3 All E.R. 238.
[clxxiii]Acting Public Solicitor v. Uname Aumane & Ors. [1980] P.N.G.L.R. 510.
[clxxiv][1968] 3 All E.R. 238.
[clxxv][1975] 3 All E.R. 238.
[clxxvi][1951] 2 All E.R. 728.
[clxxvii] [1943] 2 All E.R. 560, at p. 564.
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