SC772
PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCA No. 89 of 1998

BETWEEN:

JIM KAS, FRANK FAIBISON
MICHAEL JIM AND RODNEY TONGAU
Appellants

AND:

THE STATE
Respondent

Waigani: Amet CJ., Kapi DCJ., Woods J., Los J., Sakora J.
27th & 30th April 1999

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

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

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

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

Cases cited:
Porewa Wani v The State [1979] PNGLR 593.
Dinge Damane v The State [1991] PNGLR 244
Avia Aihi v The State [1981] PNGLR 81
Henzy Yakham and the National Newspaper v Dr Stuart Merriam and Carrol Merriam; The Independent State of Papua New Guinea and Michael Nali v Dr Stuart Marriam and Carrol Marriam (Unreported judgment of the Supreme Court dated 27th November 1997, SC533).
Ila Geno v PNG [1993] PNGLR 22).
Pioneer Shipping Ltd & Others v BTP Tioxide Ltd (1982) AC 724; 
Antaios Campanya Naviera SA v Salen Rederienas AB (1985) AC 191).
Moresby North East Election Petition [1977] PNGLR 429.
Supreme Court Reference No. 5 of 1985, Re Raz v Matane [1985] PNGLR 329
Tsang v Credit Corporation [1993] PNGLR 112.
 Shelly v PNG Aviation Services (supra);
Dillingham Corporation v Diaz [1975] PNGLR 262; 
Wood v Watkins (PNG) [1986] PNGLR 88; 
PNG v Colbert [1988] PNGLR 138.
re Busytoday Ltd [1992] 1 WLR 683.
William Norris v The State [1979] PNGLR 605 at 612
Palling v Corfield (1970) 123 CLR 52, at 65

Mr G. Shepherd for the Appellants
Mr P. Mogish for the State

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

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

In the alternative, he submitted that if the appeals as they stood were incompetent, he would make an application to amend the notice of appeal to include applications for leave to appeal against sentence. On this point, the Court made reference to the case of Dinge Damane v The State [1991] PNGLR 244. Both counsel were not prepared to argue the application for amendment. The case was adjourned to the next sittings of the Supreme Court in April to enable counsel to argue this point as well.

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

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

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

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

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

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

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

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

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

(a)	against his conviction, on any ground that involves a question of law alone, and
(b)	against his conviction, on a question of mixed fact and law,
(c)	….
(d)	with the leave of the Supreme Court, against the sentence  passed on his conviction unless the sentence is one fixed by law."

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

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

"37….

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

(16)	) No person shall be deprived by law of a right of appeal against his 
conviction or sentence by any court that existed at the time of the conviction or sentence, as the case may be."

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

Counsel for the respondent submitted that the notice of appeal does not recite nor purports to give notice of application for leave to appeal against sentence. In fact paragraph 2 of the notice of appeal purports to state that appeal against sentence is without leave contrary to s 22 (d) of the Act. He relied on Porewa Wani v The State (supra) and Henzy Yakham and the National Newspaper v Dr Stuart Merriam and Carrol Merriam; The Independent State of Papua New Guinea and Michael Nali v Dr Stuart Marriam and Carrol Marriam (Unreported judgment of the Supreme Court dated 27th November 1997, SC533). The latter is a civil case but counsel submitted that the principle is applicable to criminal cases.

The question of the constitutionality of the requirement for leave to appeal under s 22 (d) of the Act has not been the subject of decision by this Court. However, there are decisions of this Court which have dealt with the constitutionality of other related provisions of the Supreme Court Act which may provide a guide to the manner in which we should interpret s 22 (d) of the Act.

The Act regulates the right of a convicted person to file notice of appeal or an application for leave to appeal within 40 days (s 27). The case that deals with the constitutionality of the limitation of the appeal period is the landmark decision of Avia Aihi v The State (supra). The appellant in that case applied for leave to appeal against sentence but failed to file her application for leave to appeal within the 40 days limit imposed by the Act as in the present case. There were three alternative arguments advanced by counsel for the appellant. First, that the appellant had a right of appeal guaranteed by s 37 (15) of the Constitution and therefore must be enforced under s 57 of the Constitution. Alternatively, he submitted that the right to appeal may be enforced under s 155 (4) of the Constitution. Further and alternatively, he submitted that the Supreme Court had a discretion to review the sentence under s 155 (2) (b) of the Constitution. At this stage I am only concerned with the first alternative argument.

In the present case, counsel for the appellants did not rely on the second argument based on s 155 (4). However, he relied on the third alternative argument based on s 155 (2) (b) and I will come back and address it later in the judgment.

Chief Justice Kidu dealt with the first argument in the following terms:

"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 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:

"(1) Each Constitutional Law is intended to be read as a whole.

(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 in 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 (1).

This is not such a case. Section 27 of the Supreme Court Act does not prohibit appeals; it merely regulates the rights of appeal. In my opinion s. 37(15) itself allows this to be done by subjecting the right to be "according to law"."

Kearney DCJ held:

"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 (5). 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.

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.

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 Constitution, s. 57; compare, for example, the enforcement of an existing right, in Reference No. 3 of 1979; The State v. John Rumet Kaputin (6)."

Greville Smith J. and Andrew J. agreed with the judgments of the Chief Justice and the Deputy Chief Justice.

At page 106 I stated:

"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 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."

The Court unanimously held that the right set out under s 37 (15) of the Constitution contains the terms of its own limitation. Such a limitation may be imposed by "law". Limitation of the right to appeal within 40 days by s 27 of the Act comes within the words "according to law". The period within which an appeal may be lodged is described as a regulation of the right to appeal which is permissible by the words "according to law" and therefore is not inconsistent with s 37 (15). 

The Court further held that while a law may regulate the right to appeal in this manner, such a law may not prohibit the right to appeal. The Court attributed this reasoning to the terms of s 37 (15). However, I am of the opinion that this reasoning comes from the terms of s 37 (16) of the Constitution. A law which by its terms prohibits appeal is inconsistent with s 37 (16). Chief Justice Kidu in his opinion gave the example of Constitutional Reference No. 2 of 1978; Re The Corrective Institutions Act 1957 [1978] PNGLR 404 as a prohibition of the right of appeal. It is worth quoting the provision under consideration in that case to illustrate the point:

"There is no appeal from a finding or extension of sentence made or imposed under this Part".

The difference between a regulation as allowed by s 37 (15) and a prohibition or deprivation of right of appeal as set out in s 37 (16) is that in the former, a convicted person is able to exercise his right to appeal if he so chooses within the 40 days, where as in the latter, he is deprived of the choice to exercise the right of appeal by the terms of the provisions of the law. 

It is also helpful to have regard to SCR No. 2 of 1982; Re Organic Law [1982] PNGLR 14 where the nature of regulation of the right to vote under s 50 of the Constitution was considered by the Court.

Ever since the decision in Avia Aihi v The State (supra), convicted persons whose right to appeal is not exercised within the 40 days, lose the right to appeal and are not able to make use of the enforcement provisions under s 57 of the Constitution. Their remedy lies in s 155 (2) (b) of the Constitution which is one of the alternative arguments relied upon by counsel for the appellants. I will come back to this point later.

The question at this point is; whether, the requirement for leave to appeal against sentence (s 22 (d)) comes within the words "Every person convicted of an offence is entitled to have his ….sentence reviewed by a higher court or tribunal according to law" under s 37 (15)? In my opinion, the approach of interpretation taken by the Court in Avia Aihi (supra) in respect of the limitation period is the correct approach that should be adopted in determining the question that has arisen before us.

There is no doubt that the requirement for leave to appeal is prescribed by law, namely, the Supreme Court Act. The question is; whether, it regulates the right in the sense interpreted by the Court in Avia Aihi v The State (supra) in respect of limitation period, or whether, it deprives the right of appeal in the sense prohibited by s 37 (16)? This requires an analysis of the nature of leave to appeal against sentence. I am not aware of any case which has closely considered this question in our jurisdiction.

The need to apply for leave is required in other court proceedings such as leave for judicial review under O 16 of the National Court Rules. The purpose of requiring such leave is now clearly established (see ‘Ila Geno v PNG [1993] PNGLR 22). The purpose is to prevent busybodies meddling in other people’s affairs. It is a mechanism of filtering cases without any merit.

In appeals, the requirement of leave is used for the same purpose to prevent appeals which do not have any merits and to protect the finality of primary decision from which an appeal is brought (see generally Pioneer Shipping Ltd & Others v BTP Tioxide Ltd (1982) AC 724; Antaios Campanya Naviera SA v Salen Rederienas AB (1985) AC 191).

I am of the opinion that the same can be said of requirement for leave to appeal against sentence. It is a mechanism for filtering appeals against sentence that do not have any merits. There is an implied intention by the Parliament to finalise imposition of sentence unless good reason is demonstrated to show why the sentence should be reviewed by the Supreme Court. The requirement for leave to appeal against sentence goes to ensure that only genuine cases with merits may be reviewed by the Supreme Court. By nature, the requirement for leave does not deprive a person’s right to appeal against sentence. It merely regulates the manner in which the right to appeal against sentence may come before the Supreme Court. If there is any merit, the matter will be heard and dealt with on its full merits.

If an appeal against sentence was allowed as of right, the Court would still dismiss any appeal on the very ground that it has no merit whatsoever. The requirement for leave merely provides a mechanism so that this is done at an earlier point to prevent the Supreme Court been clogged up with many appeals without merit. For this reason, the requirement for leave may be heard by a single judge of the Supreme Court (s 10 of the Act) in a summary manner. Where leave is refused by a single judge, the convicted person may apply to the full Supreme Court (s 10 (2) of the Act).

I should also point out that s 11 of the Act provides yet another process of filtering frivolous and vexatious appeals. The Registrar may filter frivolous and vexatious appeals and refer them to the Supreme Court for summary dismissal.

It is clear from this analysis that the requirement for leave to appeal by nature does not in any way deprive a convicted person from exercising his right of appeal. The requirement for leave to appeal by nature simply regulates the right to appeal which is permissible under s 37 (15) (Avia Aihi v The State (supra). This conclusion is consistent with the obiter dicta remarks by Prentice DCJ in re Moresby North East Election Petition [1977] PNGLR 429. In that case, His Honour was referring to an application for leave to appeal against an interlocutory judgment:

"In my view, s 14 of the Supreme Court Act does not infringe upon the powers conferred by Constitution, but merely regulates their exercise - indeed in an eminently reasonable particular."

The limitation of the appeal period considered in Avia Aihi v The State (supra) is by nature more restrictive in effect in that when the period of 40 days expires, a convicted person loses his right of appeal. However, the Supreme Court held that extinguishment of the right to appeal by expiration of 40 days is merely a regulation of the right. The requirement for leave to appeal against sentence by comparison is not so restrictive as the extinguishment of the right by the limitation period. It certainly does not prohibit the exercise of the right to appeal.

I have reached the conclusion for the reasons I have outlined above that leave to appeal against sentence is a regulation of the right to appeal in accordance with s 37 (15) and it does not deprive a person of his right of appeal in the sense sanctioned by s 37 (16). Section 22 (d) is therefore valid.

The second alternative argument is made with reference to the ground of appeal against sentence which is based on s 41 of the Constitution. I will deal with this particular issue in several ways.

First, in view of the fact that I have upheld the validity of s 22 (d) of the Act, there is no need for any convicted person to rely on the terms of s 41 of the Constitution. I say this for the reason that in effect the grounds upon which a convicted person may rely on under the provisions of the Supreme Court Act are in substance the same as the grounds set out under s 41 of the Constitution. There is no need for any convicted person to seek the same grounds twice.

In the event that I am wrong about the validity of s 22 (d) of the Act and it is held to be invalid, then the importance of s 41 of the Constitution arises. Counsel for the appellants made submissions on this point on the assumption that s 41 is applicable to a judicial act such as sentence. Counsel for the respondent has not submitted otherwise. In this respect, I have expressed my views fully in SCR No. 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314 and I have no reason to differ from that opinion.

If a convicted person has to rely on s 41 of the Constitution, then in my opinion, an appeal is not the appropriate procedure to bring this matter to Court. The advantage for a convicted person who wish to bring this action outside the Supreme Court Act is that the limitations contained in the Act are not applicable to consideration of the issues under s 41.

The question then arises; how does one bring a cause of action based on s 41 of the Constitution? The issue of the true nature of the right under s 41 and the manner in which such a cause of action may be instituted was the subject of decision in Supreme Court Reference No. 5 of 1985, Re Raz v Matane [1985] PNGLR 329. The majority (Kidu CJ. and Kapi DCJ.) held the view that the right afforded by s 41 by nature is not a "right or freedom" for the purposes of s 57 of the Constitution. The majority nevertheless held that it provides a constitutional right and such a cause of action may be instituted in separate proceedings. The consequence of the ruling by the majority in that case is that s 38 of the Constitution is not applicable to s 41 of the Constitution. I pointed out the difficulty of how a law may comply with the requirements of s 38 in respect of the right in s 41. Counsel for the appellants in the present case did not make any attempt to clarify or overcome the problems of how the Supreme Court Act could have complied with s 38 for purposes of qualifying the right under s 41. As I pointed out in the Supreme Court Reference (supra), the right prescribed under s 41 is unique and subjects all matters that may be done under any valid law. This includes any act which may be done even under a law which may comply with s 38 of the Constitution. Section 41 provides a remedy well above and beyond any law that may permit any act that may be done under any valid law.

Alternatively, even if the minority view in Supreme Court Reference No. 5 of 1985 (supra) is correct, it does not assist the appellants’ appeal against sentence by way of appeal procedure. It would simply mean that the appellants would proceed by way of enforcement proceedings under s 57 of the Constitution. The practical result is the same, namely, that the appeal procedure is inappropriate and fresh proceedings should be instituted.

Further, I find that s 22 (d) of the Act is not concerned with proportionality of a sentence. It cannot be said that s 22 (d) is inconsistent with the terms of s 41. In the Minimum Penalty Legislation case (supra), s 41 was considered with the provisions of the Code which imposed minimum penalties. Section 41 cannot be used to impugn s 22 (d) of the Supreme Court Act.

The right to appeal falls under Part III Subdivision B, Fundamental Rights, and is not subject to s 38 which is applicable to rights set out under Part III Subdivision C. With respect, the alternative argument as to the invalidity of s 22 (d) by reason of s 41 and s 38 of the Constitution is misconceived and must be rejected.

In practical terms, if the appellants had to rely on s 41 of the Constitution, they would have to institute separate proceedings. The appellants need not be concerned with this as the convictions and sentences have now been quashed.

The third alternative argument raised by counsel for the appellants is that the requirement for leave to appeal is a procedural error and may be remedied by an amendment to include such an application.

The relevant facts to be considered in this respect are these. An application for leave to appeal against sentence was not sought in terms by the appellants. In fact the notice of appeal claims a right of appeal against sentence (see paragraph (2) of the notice of appeal) contrary to s 22 (d) of the Act.

In my opinion, the question raised by the amendment of the notice of appeal raises a jurisdictional issue as distinct from a procedural issue. It is clear from the decision of Avia Aihi v The State (supra) that the right of appeal of a convicted person is extinguished at the expiration of 40 days. This limitation applies to appeals as of right as well as application for leave to appeal. Once the period expires, there is no jurisdiction in the Supreme Court to enforce or to restore the right. The Act provides for extension of time but the application to extend is also limited by the same limitation period and time has expired for both matters in the present case.

The proposal to amend the notice of appeal to include an application for leave to appeal is inconsistent with the provisions of the Supreme Court Act which by its provision and expiration of 40 days extinguished the right of application for leave to appeal and application to extend time. If the Court has no jurisdiction to enforce or restore the right after the expiration of the 40 days, it cannot by a backdoor means amend the notice of appeal to give the appellants the right to file application for leave to appeal outside the 40 days.

The power of the Court to amend the notice of appeal in these circumstances was raised in Dinge Damane v The State (supra). In that case, the circumstances were the reverse of the present case. The Public Solicitor who represented the appellant was of the opinion that when the appellant filed the notice of appeal in person, he applied for leave to appeal against sentence only and did not file any grounds in respect of conviction. The Public Solicitor made the application to amend the appeal to include a ground of appeal against conviction outside the 40 days. The nature of the appellant’s notice of appeal was wrongly assessed by the Public Solicitor when the Court considered the matter. Nevertheless the Court considered the issue of the amendment on the basis assumed by the Public Solicitor. I had the misfortune in dissenting on the question of amending the notice of appeal to raise a new ground of appeal outside the 40 days period for the same reasons I have set out in the present case.

The power of the Court to amend notice of appeal in similar circumstances was raised in Tsang v Credit Corporation [1993] PNGLR 112. The Court followed the approach I took in Dinge Damane v The State (supra). At page 116 the Court concluded:

"There is a long line of authorities which support the proposition that, where an appeal is not filed within 40 days as required by s 17 of the Supreme Court Act, there is no power in the Supreme Court to hear such a matter under the Supreme Court Act, see Avia Aihi v The State (supra); Shelly v PNG Aviation Services (supra); Dillingham Corporation v Diaz [1975] PNGLR 262; Wood v Watkins (PNG) [1986] PNGLR 88; PNG v Colbert [1988] PNGLR 138.

Applying these principles to the present case, the appellant cannot introduce a new matter, that is, application for leave to appeal, outside the 40 days period. The appellant has failed to apply for the extension of time in which to file an application for leave to appeal. The supplementary notice of appeal is, therefore, incompetent in so far as it relates to the decision of the National Court on joinder of parties. No amendment can be allowed in these circumstances. This part of the decision of the National Court cannot be reviewed under the Supreme Court Act."

I find that the conclusion reached in Porewa Wani v The State (supra) is consistent with this line of authorities in our jurisdiction. It is good law and should be followed.

I want to emphasise that I have reached these conclusions on the facts of the present case, namely, that the notice of appeal purports to appeal against sentence as of right. If the appellants in their notice of appeal purported to apply for application for leave to appeal in terms, that would be a different matter. If they did that, the appellants would be said to have applied for leave to appeal against sentence in substance except that they had not filed the application for leave to appeal in the appropriate form required by the Supreme Court Rules. That would be a matter of compliance with a matter of practice and procedure. In such circumstances, an amendment would be made to comply with form. I have held that this is not the position in the present case.

During the course of submissions, counsel urged the Court to come to an interpretation of the law that would not discriminate in its application between convicted persons who appear in person and those represented by lawyers (see the majority opinion in Dinge Damane v The State (supra)). I believe that the interpretation I have adopted will apply equally to all persons whether or not they are represented by lawyers. That is to say, where a question of jurisdiction is involved, the Court has no jurisdiction to amend. This is the view I held in Dinge Damane v The State (supra) in circumstances where a question of jurisdiction was involved. 

Where the question is a matter of practice or procedure or clarification of existing grounds of appeal, appropriate amendments may be made. The facts of Dinge Damane v The State (supra) in reality fall into the latter category. It did not involve a matter of jurisdiction or practice or procedure but an amendment to clarify an existing ground relating to conviction. The Court was unanimous in granting the amendment.

The distinction I have made between application for leave to appeal within 40 days (a matter of jurisdiction) and want of form (question of practice and procedure) is consistent with the decision in In re Busytoday Ltd [1992] 1 WLR 683.

In the result, I would not grant the application to amend.

The final alternative argument raised is that in the event that the notice of appeal in respect of sentence is incompetent and that this may not be cured by amendment, counsel for the appellants submitted that the appellants may apply for judicial review under s 155 (2) (b) of the Constitution. This principle has been established since Avia Aihi v The State (supra). This procedure is different and the principles are different to an appeal under the Supreme Court Act. The practical result is that the appeal against sentence in the present case is incompetent (Porewa Wani v The State (supra)). The appellants would file appropriate applications under s 155 (2) (b). However, that is now not necessary, as the appellants appeal against convictions were allowed and convictions and sentences have been quashed.

I now address my reasons for decision on appeal against conviction. The facts are not in dispute. They may be summarised as follows. On 21st February 1998 at about 7.30am, the appellant Jim Kas wanted to board the aircraft referred to in these proceedings. He was late in arriving at the airport to board the flight and the plane was already closed and was waiting to tax out to the main runway to take off. In an attempt to enable Jim Kas to board the aircraft, the appellants approached the plane whilst it was stationary on the apron to the runway in a motor vehicle and stopped near but well clear of one of its wings. It had not moved on to the actual runway where planes land and take off. At no time did the appellants come in physical contact with the plane. The pilot of the plane was made aware of the presence of the appellants by the air traffic control tower. He simply waved them away and proceeded to take off. The appellants then left and went back.

The appellants were charged under s 442 of the Code. In order to succeed, the prosecution had to prove the following elements:

1. 	that the appellants dealt with the aircraft or a thing on or near the aircraft
2. 	that the appellants dealt with the aircraft or thing in a manner as to affect or endanger free and safe use of the aircraft
3. 	that by dealing with aircraft or the thing the appellants intended to prejudice the safe use of the aircraft.

The trial judge in his reasons for decision quite rightly set out these three elements on page 2 of his judgment. It is apparent from the judgment that the first element was not in dispute. I am satisfied that the use of the motor vehicle in the circumstances amounts to dealing with a thing near the aircraft (s 442 (1) (a) (i).

As to the second element, the trial judge proceeded on the basis that the manner in which the vehicle was driven and parked 3 to 4 meters away from one of the propellers while the engines were running, endangered the safe use of the aircraft. As this was not one of the main issues at the trial, I am prepared to find that the manner in which the vehicle was driven so close to the propeller endangered the aircraft. 

The real issue in the case was whether the appellants had the requisite intent to prejudice the safe use of the aircraft. In this regard, the trial judge found:

"In my view there is overwhelming evidence against the accused. The undisputed facts which I have found and which I have already stated quite clearly demonstrate a clear intention on the part of the accused to prejudice the safe use of the aircraft. They drove towards it at dangerous speed and at some distance (750 meters) and parking the said vehicle in such a manner and close proximity of the said aircraft as it was preparing to complete its final checks that their actions demonstrate their intention. The manner of parking the vehicle near the aircraft clearly demonstrates their intention to affect or endanger the safe use of the aircraft. The pilot was not aware of them up until he was alerted by the air traffic controller, and when Jim Kas put his hand out of the aircraft and signalled the pilot, the pilot waved them away. After that the accused drove away. It was only after that the pilot was cleared by the traffic controller to taxi on and take off."

Counsel for the appellants submits that there is no evidence to suggest that the appellants had any intention to endanger the safe use of the aircraft. He submits that all the evidence is to the contrary.

I find that the evidence in respect of the intention of the appellants at the trial is undisputed. The whole episode was prompted by the late arrival of the appellant Jim Kas to board the plane. Attempt was made by all the appellants to try to get the appellant Jim Kas on the plane. It was a stupid action to stop the plane while it was getting ready to take off. Be that as it may, they nevertheless tried and when the pilot could not allow him to board the aircraft, they returned to the terminal. There is no evidence to suggest that they were out there to endanger the aircraft. With respect the trial judge erred in finding that the appellants intended to endanger the safe use of the aircraft in these circumstances. For these reasons, I allowed the appeal against conviction.

Sakora J:	The four appellants were convicted by the National Court in Madang with committing the offence of dealing with an aircraft with the intention to prejudice its safe use, thereby endangering its free and safe use, contrary to s 442 of the Criminal Code Act (the Code). They were each sentenced to a term of imprisonment in hard labour for four years. The maximum sentence for this offence is life imprisonment.

By their combined notice of appeal filed 9 November 1998, the appellants appealed against their respective convictions and sentences. As well as the usual issues of fact and law associated with appeals against convictions and sentences, the case raises two other important issues of: the requirement for leave to appeal against sentence, pursuant to s 22 (d) of the Supreme Court Act (the Act); and amendment to a notice of appeal pursuant to O7, rr 24 and 25 of the Supreme Court Rules 1984 (SCR).

By a majority of 4 (the learned Deputy Chief Justice reserving his decision on the point), the Court ruled that leave to appeal against sentence is not required, and that appeal against the four sentences was competent. Full reasons for the majority ruling were to be published at a later date. I was in that majority.

In the end, after having heard full arguments on the appeals against the convictions and sentences, the Court by a unanimous decision allowed the appeals against conviction, and quashed the convictions and sentences and discharged all appellants. Reasons were to be published at a later date.

Since the decision on the appeals I have had ample opportunity to reconsider my position on the issue of leave. This opportunity has included the benefit of perusing the draft judgments of the Deputy Chief Justice and Justice Woods. There has never been a draft of the majority decision. I have had the opportunity also of considering the Supreme Court decisions in Aiva Aihi v. The State No. 1 [1981] PNGLR 81; Porewa Wani v The State [1991] PNGLR 593; Dinge Damane v. The State [1991] PNGLR 244; and Henzy Yakam and the National Newspaper v. Dr Stuart Merriam and Carol Meriam, The Independent State of Papua New Guinea and Michael Nali v. Dr Stuart Merriam and Carol Merriam (SC 533 of 27/11/97). I mention in this respect that I was counsel for the appellant in Porewa Wani case, the case where the requirement for application for leave to appeal against sentence was considered and determined as a preliminary procedural issue before embarking on the appeal against conviction on a wilful murder charge.

With respect, I am now persuaded by the learned Deputy Chief Justice’s very careful and useful discussions on this point and am, therefore, in full agreement with his conclusion and the reasons for this. Here I merely wish to add a few brief comments in support of the existing law (ie; before this Court’s majority ruling) on the subject as exhaustively discussed by his Honour.

The circumstances surrounding and giving rise to the charging of the appellants have been adequately canvassed in the judgment of his Honour, and, thus no need for repetition here.

‘Leave’ (required of a court of law) has been defined to mean permission given by the court to take some procedural step in litigation: Oxford Dictionary of Law.

Section 22 of the Supreme Court Act (SCA) makes provisions for appeals in the following terms:

"22	A person convicted by the National Court may appeal to the Supreme Court –

(a) against his conviction, on any ground that involves a question of law alone, and 
(a)	against his conviction, on a question of mixed fact and law,
(b)	. . .
(c)	with the leave of the Supreme Court, against the sentence passed on his conviction unless the sentence is one fixed by law."

Section 22 SCA has its origin in similar restrictive conditions that appear in English and Australian legislation and rules of courts. For instance, in England, appeals lie to the Criminal Division of the Court of Appeal from convictions in the Crown Court, subject to various restrictive conditions. And an example of this is the requirement for leave of the Crown Court for an appeal on a question of fact, and leave of the Court of Appeal for an appeal against sentence. A further appeal on a point of law will lie from the Court of Appeal to the House of Lords, subject to similar conditions.

Thus, the law in England and Australia, as here before this case, has always been that, firstly, an appeal against conviction on a point of law ‘as of right’, and, secondly, against sentence only with leave. This law acknowledges that there are two springboards for appeals: the conviction and the sentence. The two are fundamentally different. In the first the appellant claims that the result, the verdict, was wrong, that he was innocent of the crime of which he was found guilty.

The second kind of appeal, against sentence, has a different basis: the appellant is claiming, ‘I did it, but I didn’t deserve such a severe sentence’. The injustice is there, but it is of a different kind.

The law on the statutory requirement for leave to be applied for and obtained before appealing against sentence (s 22 (d) supra) was restated in Porewa Wani v The State (supra). As noted already, in my former life I was the counsel for the appellant in that case, where, through inadvertence, I had omitted to apply for leave to appeal against the severity of the sentence. Upon objection by the State counsel when I attempted to present argument on the sentence and its excessiveness, the Supreme Court rule against me, holding that such an argument was not open to the appellant as the notice of appeal was not (nor did it purport to be) a notice of application for leave to appeal (against sentence).

In the Henzy Yakam and the National Newspaper case (supra), the Supreme Court had yet another opportunity to restate and emphasise the law on applications for leave to appeal (s 22 (d) SCA, supra). The separateness of the requirement for leave and where the grounds of appeal required no leave was confirmed in the words of Amet CJ as follows (at page 11):

"It is quite clear, in my view, that the rules intended that separate application in form 7 should be filed in respect of proposed grounds involving issues of fact for which leave of the court was required and separate notice of appeal in form 8 in respect of grounds of appeal which did not require leave of the court."

Acknowledging the statutory requirement for leave, thereby in no uncertain terms not questioning the constitutionality of such a requirement, his Honour added (at page 15):

"I should add quite clearly that in future applications for leave to appeal are to be filed separately in form 7 and that there should be no presumption that such applications will automatically be heard concurrently with or immediately before the hearing of the appeal in respect of grounds of appeal that do not require leave or if the only grounds of appeal are requiring leave that they can be in the terms of Order 7 Rule 3. I repeat that application for leave to be heard prior to the hearing of the actual appeal if leave is to be granted. "

His Honour the then Deputy Chief Justice (in the same case, at pages 19 – 20) said:

"The practical effect of all these provisions may be summarized in the following way. Where a person seeks to appeal only against ground (sic) which require leave to appeal, leave must be sought by using form 7. If no leave is sought the appeal will be dismissed for incompetence."

Section 11 of the Constitution declares the supremacy of the Constitution itself in the following terms:

11.	Constitution, etc., as Supreme Law.

(1)	The Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.
(2)	. . . 

The majority view in this case is that the requirement for leave as prescribed under s 22 (d) SCA is unconstitutional as contravening s 37 (15) Constitution, which reads:

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

The first point that has to be made is that the provision does not vest (or guarantee) a right as such, let alone an absolute right. Rather an entitlement to have his conviction and sentence reviewed by a higher court is granted by the provision.

The second point to make is that the concluding part of the provision that is underlined here drives home the forceful point that the enjoyment or availing of that entitlement is to be subject to law. The entitlement is not prohibited but rather regulated (or to be regulated) according to law. A mere qualification as to how and when, or under what conditions, can the entitlement be availed of.

The Supreme Court in its seminal decision in Avia Aihi v. The State (No. 1) (supra) dealt with in an exhaustive way the difference or distinction between regulation and prohibition when considering s. 27 SCA which imposes a time limit (of 40 days) within which a decision of the National Court can be challenged by way of a notice of appeal to the Supreme Court. It held that the prescribed time limit did not prohibit appeals but merely regulated the manner in which the right to appeal could be availed of. The Court thus held that s. 37 (15) Constitution subjects the right to appeal to a requirement that it be according to law. Therefore, it was concluded, a law imposing a time limit on appeal is not unconstitutional but is a "law" as envisaged in the phrase according to law.

The principles enunciated in the Avia Aihi case (supra) apply with equal force and relevance to the requirement or condition (for appealing against sentence) prescribed under s 22 (d) SCA.

The requirement for leave is not, I would suggest, a mere technical roadblock or hurdle to be overcome on the way to challenging a decision on sentence. It is there to serve a useful purpose. Unlike in an appeal against conviction where the appellant may challenge the trial judge’s interpretation and application of the law to the facts of the case before him, in an appeal against sentence, the appellant is challenging the trial judge’s exercise of his sentencing discretion. 

Ruggles-Brise (an English Prison Commissioner in 1900) referred to judicial sentencing discretion as ‘the most sacred principle of English criminal law’: Andrew Ashworth, Sentencing and Penal Policy (London, 1983, 68). This may not be entirely correct, but the statement was made in the context of the then progressive repeals of the statutes that had established minimum periods of penal servitude (such as our own minimum penalty of 5 years imprisonment for ‘escaping from lawful custody’).

Appeal against conviction relies on demonstrating "errors apparent on the record" to challenge the decision, whereas, as noted already, challenge to the sentence imposed involves challenging the exercise of discretion.

Kearney J (as he then was) stated in William Norris v The State [1979] PNGLR 605 at 612 that:

"The sentencing power is a discretionary judicial power. If no error is shown this Court is unlikely to interfere with the sentence, because a trial judge is usually in a much better position to access the proper sentence than a court of appeal."

His Honour then proceeded to make the following oft-cited statement (ibid):

"So the question in practice on a sentence appeal is usually this – has the appellant shown that an error occurred which has the effect of vitiating the trial judge’s discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account."

Finally on this point, it is instructive to note what Barwick CJ said in the Australian case of Palling v Corfield (1970) 123 CLR 52, at 65:

"Ordinarily the court with the duty of imposing punishment has a discretion as to the extent of the punishment to be imposed, and sometimes a discretion whether any punishment at all should be imposed. It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of sentences . . . "

The learned Chief Justice was giving an account of the Constitutional position where a defendant challenged the validity of a statutory provision which required the court to impose a particular sentence on conviction for a specified offence.

From the foregoing discussions on exercise of judicial discretion, to challenge such exercise, an appellant should be subjected to the scrutiny of a leave application which safeguards against unmeritorious trivial challenges. Just because a person is unhappy with the sentence is not sufficient reason to challenge. These must be demonstrated in the application for leave an identifiable error on the part of the trial judge, something analogous, I would suggest, to leave to apply for judicial review (under O16 National Court Rules) where, inter alia, the applicant must demonstrate to the Court’s satisfaction an arguable case.

Application for leave to appeal against sentence is a sifting or filtering process to be undertaken to ensure that the challenge to the sentence imposed is well-grounded, that the reasons offered for seeking review of the decision do in fact merit substantive consideration is, therefore, a necessary procedural requirement of the law itself that does not take away, prevent, prohibit, or diminish the Constitutional entitlement available under s 37 (15) Constitution.
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Lawyers for the Appellants	:	Maladinas
Lawyers for the State 		:	Public Prosecutor