SC1354

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 62 OF 2011

BETWEEN

RAYWILL PARAPEN
Appellant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Makail, J
2014: 18th & 25th June

PRACTICE & PROCEDURE – Application for leave to amend - Amendment of notice of appeal – Addition of ground of appeal – Jurisdiction of – Special circumstances – Reasons for delay – Lack of – Arguable case – Whether proposed ground is arguable – Leave granted – Supreme Court Rules – O 7, rr. 25 & 26.

Cases cited:

Paul Kundi Rape v. The State [1976] PNGLR 96
The State v. Ronald Madio: CR No 362 of 2008 (Unnumbered & Unreported Judgment of 25th October 2012)
Minister for Lands and Physical Planning & Ors v. Air Niugini Limited (2013) SC1233
 Charles Ombusu v. The State [1996] PNGLR 335 
Telikom PNG Limited v. Independent Consumer and Competition Commission (2008) SC906

Counsel:

Mr L. Mamu for Appellant
Mr R. Auka, for Respondent

RULING

25th June, 2014

1.	MAKAIL, J: The appellant was convicted and sentenced by the National Court to 12 years imprisonment in hard labour for murder under s. 300 of the Criminal Code. 

2.	On 16th November 2011, he filed an appeal against the conviction and sentence. He now applies for leave to amend the grounds of appeal by seeking to add an additional ground. The proposed ground is as follows:

"(3.8)	 The Learned Trial Judge erred in law in ruling that the prisoner has a case to answer on a charge of murder after initially upholding the Submission on No Case to Answer on the charge of Wilful Murder as originally charged on the indictment."

3.	He relied on s. 5 of the Supreme Court Act and O 7, rr. 25 and 26 of the Supreme Court Rules and submitted that leave should be granted because the proposed ground is arguable. It raises an arguable case because it relates to procedural fairness and denial of right to a fair trial, in that, after the State closed its case, he was invited through his defence counsel to address the evidence presented thus far by the State relying on the principles of a no case submission in Paul Kundi Rape v. The State [1976] PNGLR 96.

4.	The trial judge upheld the submission on no case to answer on the charge of wilful murder as charged in the indictment, but ruled that he had a case to answer on the charge of murder, even though he was not charged with murder. He contended and will contend at the substantive hearing that the trial judge had no discretion to find and allow the trial to continue on an alternative charge of murder when he upheld the no case submission and found that he had no case to answer on the charge of wilful murder. 

5.	He further contended and will contend at the substantive hearing that the course the trial judge took is wrong. According to s. 539 of the Criminal Code, such a course is only available at the close of all evidence, that is, after the evidence of the defence where it is within the discretion of the trial judge to return a verdict on an alternative charge if evidence supported it. He relied on the National Court decision by Toliken, AJ in The State v. Ronald Madio: CR No 362 of 2008 (Unnumbered & Unreported Judgment of 25th October 2012) to support these contentions. 

6.	In that case, it was held that s. 539 of the Criminal Code does not apply until after the close of evidence of both the State and the defence. To invoke the provision at the no case submission stage is prejudicial to the accused person who is entitled to meet the State's case on the charge in the indictment. The accused persons cannot be left to guess what the State might charge him with or what the Court might find against him at the no case submission stage.

7.	He neither made submissions nor gave evidence as to why he did not include the proposed ground in the notice of appeal when the notice of appeal was filed before the expiry of 40 days or why it took 2 years and 7 months after the expiry of 40 days to bring the application. He also made no case submission on the question of prejudice.

8.	The respondent opposed the application contending that the proposed ground is unmeritorious and does not raise an arguable case to warrant further consideration by the Court. It neither cited a case authority in response to the appellant's contentions nor made submissions in response to the Ronald Madio's case (supra). It also made no submission in relation to the delay aspect and also the question of prejudice.

9.	The appellant relied on s. 5 of the Supreme Court Act and O 7, rr. 25 and 26 of the Supreme Court Rules. I have received no submissions from the parties on the application of these provisions. Nonetheless, I consider that the threshold issue is the power of the Court to grant leave to amend grounds of appeal. In my view s. 5 of the Supreme Court Act has no application. I hold this view because it does not expressly state that where an appeal is pending before the Supreme Court, a single judge of the Supreme Court may grant leave to amend a ground or grounds of appeal in the notice of appeal. On the other hand, it grants power to a single judge of the Supreme Court to, amongst others, make an interim order to prevent prejudice to the claims of the parties, such as an interim injunction pending appeal. 

10.	Order 7, rules 25 and 26 of the Supreme Court Rules permit an amendment to a notice of appeal. Rule 25 states:

"25.	A notice of appeal may, before the date of appointment to settle under Rule 42 be amended without leave by filing a supplementary notice."

11.	Rule 26 states:

"26.	A party who files a supplementary notice under Rule 25 shall file and serve it in accordance with Rule 13. The addition of a new ground of appeal shall not be made after the expiry of 40 days after the date of the judgment in question, or such further period as has been allowed by a Judge within those 40 days." (Emphasis added).

12.	Under r. 25, leave is not required if the amendment is filed by way of a supplementary notice of appeal before the date of appointment to settle the appeal book. There is no dispute that no date has been fixed to settle the appeal book and consequently, no appeal book has been filed. But under r. 26, where the amendment is an addition of a new ground of appeal, it must be made before the expiry of 40 days after the date of the judgment in question or such further period as has been allowed by a Judge within those 40 days.

13.	As the appellant seeks to add a new ground of appeal, he must make the amendment before the expiry of 40 days or within such further time as allowed by a Judge within those 40 days. Neither of these instances applies in this case because the appellant is way out of time. I find O 7, rr. 25 and 26 (supra) have no application in this case. 

14.	The power of the Supreme Court to order an amendment is found in Part 4 – General Provisions of O, 11 r. 11 of the Supreme Court Rules. It states:

"11. The court or a Judge may order that any person be added as a party to proceedings under these rules or that the proceedings be amended and may impose such conditions as appear just, and give all consequential directions." (Emphasis added).

15.	This rule was not cited by the appellant but it authorises the Supreme Court or a single Judge of the Supreme Court to order that "proceedings be amended." Although it was not cited as the jurisdictional basis of the application, I consider that it is within the discretion of the Court to invoke it because both parties are well aware of the nature and grounds of the application and will not be prejudiced in any way. In my view it is wide enough to include amendment of a notice of appeal where an appellant is outside the time limit of 40 days: see Minister for Lands and Physical Planning & Ors v. Air Niugini Limited (2013) SC1233. I am satisfied that this Court has power to grant leave to amend grounds of appeal after the expiry of 40 days to file an appeal.

16.	As to the test for grant of leave, decided cases have held that the test is whether there are special circumstances exist in a particular case, which would make the case an exceptional case that should warrant the grant of leave to amend the notice of appeal. It is not whether there are exceptional circumstances that would warrant the grant of leave: see Charles Ombusu v. The State [1996] PNGLR 335 and (Telikom PNG Limited v. Independent Consumer and Competition Commission (2008) SC906 in the context of belated application for leave to amend at date of hearing) and also Minister for Lands and Physical Planning & Ors v. Air Niugini Limited (supra).

17.	Some of the matters that are taken into account to establish that special circumstances exist are the time the application is made, reasons for default, arguable case and prejudice. In this case, the application is made 2 years and 7 months after the expiry of 40 days but before the hearing of the appeal. While I consider that there is a long delay, I accept that it is made before the hearing. As noted, parties made no submissions on the question of prejudice but in my view the grant of leave and proposed amendment will not be adverse to the respondent because the respondent will have time between now and the date of hearing to prepare its response to the propose ground.

18.	As to the question of an arguable case, I accept the appellant's submission. The proposed ground raises an important point of law on practice and procedure and also discretion of the trial judge in the exercise of power under s. 539 of the Criminal Code. The trial judge having upheld the appellant's submission that he had no case to answer on the charge of wilful murder proceeded with the trial on the charge of murder and ultimately found the appellant guilty of murder on the authority of s. 539 (supra). It is arguable that the trial judge acted in excess of his power under s. 539 (supra) and consequently, denied the appellant a right to a fair trial. In my view the ultimate question raised in this proposed ground is whether the trial judge had the power to order a trial on the charge of murder after upholding and finding that the appellant had a no case to answer on a charge of wilful murder. I am satisfied that there is an arguable case.

19.	For the foregoing reasons, I uphold the application, grant leave and direct that the appellant file and serve the amended notice of appeal within 14 days of this decision. The matter is further adjourned to Monday 14th July 2014 at 9:30 am for directions hearing.

Ruling and orders accordingly.
______________________________________________________________

Public Solicitor: Lawyers for Appellant
Public Prosecutor:  Lawyers for Respondent