SC1425

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV 8 of 2014

REVIEW PURSUANT TO SECTION
155 (2) (b) CONSTITUTION

BETWEEN:

BENJAMIN SENGI
Applicant

AND:

THE STATE
Respondent

Kokopo: Gavara Nanu J, Hartshorn and Sawong JJ
2015: 27th, 28th April

Application for leave to review under s. 155 (2) (b) Constitution 

Cases 

Avia Aihi v. The State (No. 2) [1982] PNGLR 44
Application by Anderson Agiru (2002) SC686
Application by Herman Leahy (2006) SC855 
Application by John Maddison and Bank of South Pacific Ltd (2009) SC984 
Alphonse Tay v. Newcombe Gerau (2011) SC1097

Counsel:

Applicant in person
Mr. R. Auka, for the Respondent

28th April, 2015

1. BY THE COURT: The applicant seeks leave to review the sentence of 20 years imprisonment that was imposed upon him after he was found guilty of two counts of rape with circumstances of aggravation (Sentence). The application for leave is made pursuant to s. 155 (2) (b) Constitution as the applicant did not exercise his right of appeal in the time permitted by statute: Avia Aihi v. The State (No. 2) [1982] PNGLR 44; Application by Anderson Agiru (2002) SC686; Application by Herman Leahy (2006) SC855 and Alphonse Tay v. Newcombe Gerau (2011) SC1097.

2. Where a right of appeal has not been exercised, three criteria must be satisfied before leave can be granted (we refer to the cases cited above). These are:

a)	it is in the interests of justice to grant leave; and

b)	there are cogent and convincing reasons and exceptional circumstances, eg. some substantial injustice is manifest or the case is of special gravity; and

c)	there are clear legal grounds meriting a review of the decision.

3. The applicant did not file an appeal within the 40 days period permitted by statute. It was not until more than four years and four months after the Sentence was imposed, that this review proceeding was filed. That is more than 40 periods of appeal of 40 days. The explanation for the delay was that the applicant's lawyer had failed to file an appeal or an application for review on the applicant's behalf. Yet when documentary evidence was requested, it disclosed that the applicant had dispensed with his lawyers services in August 2011. It was also submitted that another lawyer had failed to file an application for review of sentence after an application for a review of the applicant's conviction had been withdrawn, but there was no evidence of this before the Court. Even if there had been, it does not detract from the inordinate delay that has occurred in filing this review. 

4. As the Court said in Alphonse Tay v. Newcombe Gerau (supra), it is clearly not in the interests of justice that an applicant be allowed to review a judicial decision after such a lengthy period of time. In that case a period of three years five months had elapsed since the decision sought to be reviewed was delivered. Further, in Application by John Maddison and Bank of South Pacific Ltd (2009) SC984, in refusing to grant leave to review under s. 155 (2) (b) Constitution, the Court considered a period of 9 months to be an inordinate and inexcusable delay. The delay in Maddison (supra) is insignificant in comparison with the delay in this case.

5. In Alphonse Tay v. Newcombe Gerau (supra) and John Maddison and Bank of South Pacific (supra), both Courts said that there is a public interest in the finality of litigation that requires consideration and that parties who are aggrieved by a judgment of the National Court have a duty to agitate their grievance promptly and with all due despatch. We respectfully agree. 

6. As we are not satisfied that it is in the interests of justice that leave be granted, the applicant has failed to meet all three mandatory requirements for leave. Consequently, it is not necessary for us to consider the other submissions of counsel.

Orders

7. This proceeding is dismissed and the sentence of the National Court is confirmed. 

_____________________________________________________________
Applicant in person 
Office of the Public Prosecutor: Lawyers for the Respondent