SC850

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 39 OF 2005

BETWEEN:

LIONEL GAWI
Appellant

AND:

THE STATE
Respondent

Waiagni: Kapi CJ., Injia DCJ.,
Los J., Hinchliffe J., Salika J.
2006: 24 April, 1 December

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.

PRECEDENT- Supreme Court’s power to overrule its own earlier decision - Constitution Sch. 2.9 (1) of the Constitution.

POWER OF THE SUPREME COURT - to restore legislation struck down by Judicial Act.

Cases cited:
Jim Kas, Frank Faibison, Michael Jim and Rodney Tongal, Unreported Judgment of the Supreme Court dated 30th April 1999, SC772

Legislations cited:
Constitution
Supreme Court Act
Interpretation Act
Criminal Code

Counsel:

H. Maladina, for the Applicant
R. Auka, for the Respondent

1 December, 2006

1. BY THE COURT: This is an application for leave to appeal against sentence imposed by the National Court (Kandakasi J) dated 26 September 2005. The application for leave to appeal was filed on 4 November 2005.

2. On the same date, the applicant also filed a notice of appeal against sentence as of right. The grounds raised in the appeal are exactly the same grounds raised in the application for leave to appeal.

3. The applicant sought to pursue the application for leave to appeal on the premise that s.22 (d) of the Supreme Court Act requires all persons who wish to appeal against sentence to first seek leave of the Supreme Court:

"22. Criminal appeals.

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

(a) … 
(b) …
(c) …
(d) with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law."

4. However, the Supreme Court in Jim Kas, Frank Faibison, Michael Jim, and Rodney Tongau v The State (Jim Kas Case), SCA 89 of 1998, by a majority of 4-1 ruled that s.22 (d) was contrary to the right of appeal under s.37 (15) of the Constitution and struck down the provision.

5. Subsequent to this case, all persons who wished to appeal against sentence have appealed against sentence as of right. 

6. In the present case, counsel for the applicant seeks to pursue the application for leave to appeal on the basis that in his submission, the majority in Jim Kas Case reached a wrong conclusion in law and it should be reversed and s.22 (d) of the Supreme Court Act is valid and should regulate the law on appeals against sentence.

7. Counsel for the respondent agrees with submission by counsel for the applicant that the majority decision in Jim Kas Case was wrong and the correct view of the law that should be adopted by this Court is the view expressed in the dissenting judgment. Both counsel have argued the issues fully and they are complimentary.

8. This necessarily requires a review of the majority decision in Jim Kas Case. Where a previous decision of the Supreme Court is challenged, it is not wrong in principle for the Supreme Court in a proper case, properly addressed and advised, to overrule its earlier decision by the same number of Judges (SC Reference 2 of 1992 [1992] PNGLR 336). The decision sought to be reviewed in the present case consisted of 5 Judges with a majority of 3-2. In the circumstances it is appropriate for 5 member bench to review the decision.

9. In Jim Kas Case, the reasons for decision by the majority opinion have not been published and two of the judges in the majority, Chief Justice Sir Arnold Amet and Woods J have since retired from the bench. The only reasons for decision which have been published is the dissenting reasons for decision of the Deputy Chief Justice (as he then was) and Sakora J who was part of the majority but has since published a separate reasons for decision and in effect followed the dissenting decision of the Deputy Chief Justice.

10. The dissenting reasons for decision have been published: Jim Kas, Frank Faibison, Michael Jim and Rodney Tongal (Unreported Judgment of the Supreme Court dated 30th April 1999, SC772). 

11. We bear in mind the principle that the Court will not easily depart from a previous decision of the Court unless the point is fully argued and it is convinced it was clearly wrong. 

12. In absence of any reasons for decision by the majority, we can get very little assistance in support of the reasons for the majority decision.

13. We now consider the dissenting opinion. The essence of the dissenting opinion is set out in the reasons for decision by the Deputy Chief Justice. We can do no better than set out in full the passages dealing with the issue commencing on page 7 of the reasons:

"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)."

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

15. 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."

16. The reasons for decision by Sakora J in effect adopted the reasons for decision by the Deputy Chief Justice.

17. We have considered the decision by the minority view and we conclude that s.22 (d) of the Supreme Court Act is by nature regulative of the right of appeal and is permissible under s.37 (15) of the Constitution. We also conclude that s.22 (d) is not prohibitive as sanctioned by s.37 (16) of the Constitution. We agree with the reasons given by the dissenting opinions in support of this conclusion.

18. For these reasons we consider that the majority opinion in Jim Kas Case reached the wrong conclusion in law and should not be followed as good law.

19. The next issue that arises for consideration as a result of this conclusion is: Can this Court restore s.22 (d) of the Supreme Court Act? We requested counsel to research this point and file written submissions by 4 pm Friday 28 April 2006. Counsel have not been able to find any precedents on this issue and we are unable to find any such precedent from our own research. 

20. Our attention has been drawn to the provisions of the Interpretation Act and Schedule 1.17 of the Constitution. However, we do not consider that these provisions are of any relevance to the issue before us because they deal with effect of repeal of legislation by the legislature. The issue before us is not dealing with repeal by legislature but striking down of legislation by a court.
 
21. Where legislature in the exercise of its legislative power repeals legislation, it may through the exercise of the same power restore the same legislation. By a process of analogous reasoning, where a Court by judicial act strikes down legislation, a court of competent jurisdiction may reverse the decision of the previous decision and restore the legislation by judicial act. The situation may be different if the decision by the Court strikes down a provision of legislation and the legislature subsequently repeals the legislation, a Court of competent jurisdiction could not restore the legislation repealed by the legislature.

22. The relevant issue is: whether a subsequent Supreme Court has power to reverse the decision of a previous Supreme Court? The issue is addressed by Schedule 2.9 (1) of the Constitution:

"Subordination of courts

All decisions of law by the Supreme Court are binding on all other courts, but not on itself."

23. The fact that this Court is not bound by the previous decision of the Supreme Court is clear. This means that subsequent Court can affirm, reverse or modify a previous decision of the Supreme Court as it considers appropriate. We have considered the basis of the ruling of the majority opinion in Jim Kas Case and have already concluded that it erroneously reached the conclusion that s.22 (d) of the Supreme Court Act was inconsistent with the Constitution and therefore invalid and struck down the provision. It follows from our decision that it ought not to have declared the provision invalid and this Court has power to restore the provision on the correct view of the law. This is a consequential ruling that must follow our conclusion. This simply restores the law as it ought to have been the correct position.

24. When should this decision take effect? All appeals filed as of right and are pending in the Supreme Court in accordance with the law in Jim Kas Case, will not be affected by this decision. Such appeals pending are competent and will proceed to hearing.

25. It is important that this decision should be given sufficient time to be brought to the attention of the public and legal practitioners and give an effective date when the Courts can apply the decision. We consider that a period of 2 months is sufficient. After this date, all appeals against sentence must be by leave of the Supreme Court as required by s.22 (d) of the Supreme Court Act.

26. We now consider the merits of the application for leave to appeal. Relevant facts for the purposes of considering leave are these. The applicant was charged with the offence of grievous bodily harm with intent contrary to s.315 of the Criminal Code. The applicant with a group of boys invited the victim to the Boram beach in Wewak and started to attack him with a home made metal axe on his head. Another member of the group also attacked the victim with a piece of wood which had nails on it. He was kicked and punched. The medical report indicated injuries to the scalp with 10-20 cm laceration and 1 x 1 cm cut on his hand. There were no permanent disabilities as a result of the attack.

27. He pleaded guilty to the charge. The trial judge made reference to payment of K1000 compensation by the relatives of the applicant and the relationship between the parties have been restored. The pre-sentence report recommended a non-custodial sentence.

28. In sentencing the applicant, the trial judge after referring to all the considerations held:

"In the circumstances, I consider a sentence of 7 years is called for. However, because of your guilty plea and your parents having paid compensation, which have restored the broken relations between yours and the victim’s side, I will have that reduced to 4 years."

29. The application for leave to appeal describes "The appellant was sentenced to 7 years". The head sentence imposed was 4 years and not 7 years. This was the sentence imposed after taking into account all relevant considerations. We consider this application on the basis that the head sentence imposed was 4 years and not 7 years.

30. Having regard to the grounds relied upon for the application and that counsel for the respondent does not contest the grounds raised are arguable, we would grant leave to appeal against sentence. We direct that the notice of appeal already filed may be regarded as the notice of appeal for purposes of the appeal.

______________________________________________

Young & Williams: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent