SC1572
   PAPUA NEW GUINEA	
[IN THE SUPREME COURT OF JUSTICE]

SCRA 112 of 2015

       BETWEEN:
JIMMY MALADINA
Appellant
		
     AND
       
       THE STATE
 					          Respondent

      Waigani:  Injia CJ
   					       2015:  8th July

SUPREME COURT - PRACTICE & PROCEDURE - Application for interim order - Following appeal against criminal conviction -- Stay of criminal proceedings on sentence pending appeal against conviction - 

Counsel:	
Mr Sheppard with Mr Purvey, for the Appellant 
Mrs Kuvi with Ms Koralio, for the Respondent 

8th July, 2015 

1.      INJIA CJ: This is an application for interim order to stop the criminal proceedings in the National Court pending determination of the appeal against conviction.  The appeal relates to a guilty verdict which was returned on  fraud- related charges brought under the Criminal Code and for which he is awaiting sentence. If the interim order is granted, it will have the effect of temporarily stopping the trial Court from proceeding to sentence him for the criminal offence for which he has been convicted. 

2.    The application was based on number of jurisdictional provisions but in the course of the hearing, the appellant pursued the application under s 5(l)(b) of the Supreme Court Act. That Section provides: 
	
"5. Incidental directions and interim orders.

(1) Where an appeal is pending before the Supreme Court- 
 	       (a)  a direction not involving the decision on the appeal; or 
(b)  an interim order to prevent prejudice to the claims of the parties; or 
(c)  an order in any proceedings (other than criminal proceedings) for        security for costs; or 
(d)  an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or 
	      (e)  an order admitting an appellant to bail, may be made by a Judge.
 
(2) A direction or order made under Subsection (1) shall be deemed to be a direction or order of the Supreme Court. 

(3) A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court. " 

3.    The first point to be decided is one raised by the respondent. The respondent argues that s 5(1)(b) applies to civil appeals only. On a plain reading of this provision, it is clear that an application for interim order under s5 (l)(b) is not restricted to civil appeals. Section 5 appears under Part III (Appeals to the Supreme Court), Division1 (General) of the Act and immediately after s 4 which provides for criminal and civil appeals. If s 5(1)(b) were to be confined to civil appeals, that Sub section would have expressly said so as it is the case with s 5 (1) (c) and (d). I accept the appellant's submission and reject the respondent's submission on this point. The application is therefore properly before me. 

4.    There is only one decided case that has come to my attention that deals with an application for interim order made under s 5 (l)(b) in a criminal appeal. In Eremas Wartoto v The State (2013) SC1298, the criminal trial had not yet commenced in the National Court. The appellant instituted separate civil proceedings in the National Court seeking an order to stay the criminal proceedings. The trial judge in the criminal matter dismissed the stay application and decided to proceed with the criminal trial. The accused appealed the decision in a civil appeal and applied for interim relief under s 5 (l) (b) to stop the criminal trial pending determination of the appeal. The full Court ruled that s 5 (l)(a) was available to stay criminal proceedings. The Court went on to grant the application and stayed the criminal trial pending determination of the civil appeal. This decision reinforces my earlier view that s 5(1) (b) is not confined to civil appeals. 

5.     The Wartoto decision however does not deal with the question whether s 5(1)(b) application may be made in a criminal appeal following an appeal against conviction only in a situation where sentence is not yet passed by the National Court. That question was not before the Court in the Wartoto case. The point remains to be fully argued and determined by the full Court in an appropriate case. For purpose of the current application, I consider this point when considering the exercise of discretion against the criteria established by the full Court in the Gary McHardy case.

6.     The next point arises from the respondent's argument that the application is an abuse of process given the normal criminal process will be disrupted if the application were granted. There is support for this argument from two decisions of the full Court - Mark Bob v The State (2005) SC808,and Doreen Liprin v The State (2001) SC673. In those cases the full court was dealing with the interpretation of the word "conviction" appearing in s 29 (2) of the Supreme Court Act. The full court observed that the decision on sentence "is subsumed by the word conviction", that conviction" connotes that sentence is regarded as part and parcel of the conviction and for those reasons, time to appeal runs from the time sentence is pronounced. The argument could be extended that an appeal against conviction does not arise until sentence is pronounced.
 
 7.    Section 22 of the Supreme Court Act, which was discussed in Mark Bob v The State (2005) SC808 relates to an appeal against conviction and sentence. On a first glance of s 22,  an appeal against conviction is distinct from an appeal against sentence.  Once sentence is pronounced upon conviction, a person may choose to appeal against conviction only or sentence only in separate appeals or appeal against conviction and sentence in the one appeal. An appeal against conviction on a point of law or mixed fact and law lies of right whereas an appeal against conviction involving question of fact alone lie with leave.  An appeal against sentence lies with leave. The question whether a person may bring an appeal against conviction but before sentence is pronounced is a moot point. The point was not addressed by the full Court in Mark Bob v The State (2005) SC808 and Doreen Liprin v The State (2001) SC673. In any event, I agree with the appellant that the full Court's suggestion on the construction of the word conviction appearing in s 29(2) in those two cases are obiter and the law for that matter is not clearly settled and remains for the full Court to determine in an appropriate case. 

8.   On my present reading of these provisions, I am able to form a view, tentative though, given the lack of adequate time given to the parties to address the issue, that an appeal against conviction per se lies to the Supreme Court under s22 of the Supreme Court Act, before sentence is passed. An appeal against conviction is distinct from an appeal against sentence and I see no reason why an appeal against conviction per se should not lie. 

9.   Tuning now to the exercise of discretion under s 5 (l)(b), the MacHardy case is now accepted as the leading case on the exercise of discretion in s 5(1)(a). The appellant's submissions before me are based on the application of the criteria in McHardy case. That case sets out some eleven (11) matters to be taken into account in exercising discretion. My own approach to consideration of those multiple considerations is one of a rather holistic approach rather than a piece-meal manner. In exercising its discretion, the Court must consider all those matters and only those matters which relevant to the circumstances of the particular case before the Court. The full Court did not expect the discretion should be exercised on all or selected number of factors enumerated in McHardy; rather the Court is required to consider the totality of those relevant factors and circumstances, in order to dispense substantive justice in the circumstances of the case before it. The circumstances of a particular case may warrant greater or less or even no weight to a particular factor or a number of factors. Those are matters in the Court's discretion. The circumstances of a case may warrant consideration of a single factor that may be the most critical and determinative factor which must be accorded paramount consideration. Again, that is a matter of discretion. 

10.    The considerations in McHardy are as follows:

(1)  The Court must start from the basic premise that the respondent is entitled to the fruits of the judgement. 
(2)   Whether leave to appeal is required and whether it has been obtained. 
(3)   Whether there has been delay in making the application. 
(4)   The nature of the judgment sought to be stayed. 
(5)  Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure. 
(6) Preliminary assessment about whether the applicant has an arguable case on the proposed appeal. 
(7) Possible hardship, inconvenience or prejudice to either party. 
(8) The financial ability of the applicant. 
(9) Balance of convenience. 
(10) Whether damages would be sufficient remedy. 
(l1) The overall interest of justice
	
11.    I accept the applicant's submission that he has appealed the decision on conviction as of right and leave has been granted to appeal those questions involving fact alone. On the face of the judgment the appellant does have an arguable case on appeal, particularly in relation to the findings of fact based on circumstantial evidence - evidence put together some 11 years after committal for trial. There has been no delay in making the application. The appellant does stand to suffer prejudice if the proceedings continue to sentence. If he were successful in the appeal against conviction, imposition of the sentence  may bring hardship and inconvenience to him. The respondents do not stand to suffer any such prejudice. The balance of convenience favour the appellant more so than the respondent. Financial ability of the applicant is not applicable. Damages as an alternative remedy is also irrelevant. 

12.     In the circumstances of the case before me, the overall interest of justice is to be considered carefully as it may turn out to be a critical and dominant consideration. What is the" interest of justice" and the "overall interest of justice" in the context of a criminal trial? 

13.    The phrase "the interest of justice" is a broad one for which a precise definition cannot be found in any of the cases decided in this jurisdiction. It seems obvious to me that the phrase is so often used, we all know what it is and what it is and what it means, but fall short of articulating what it really means. With no opportunity given to parties in this appeal to assist the court in exploring its meaning, I am loath to engage in any analysis of its meaning. However, for purpose of determining the application before me, it is not difficult to ascertain  its meaning. The term has competing considerations.

14.    On the one hand, the interest of justice demands that the appeal against conviction should be accorded  normal due process to be argued and determined on its own merit and once a decision is made on the appeal, its decision is given full effect. In order to preserve prejudice to the appellant's claim or prayer for relief, he should not be subjected to a process that will frustrate or complicate his right to claim that appropriate relief and if granted to give effect to it.  There is no question that he will be sentenced following the conviction. Whatever the sentence may be, he will have been subjected to be sentenced and if he were successful in the appeal against conviction, he will have suffered irreparable harm in respect of that portion of the punishment already served. 

 15.     On the other hand, he has been convicted. Sentence will have to follow suit as a matter of law. The state of the law and preponderance of judicial thinking reflected in the cases I have referred to, though obiter they appear to be, it will require a very clear case of a sense of injustice to persuade me that the scales of justice should tilt in favour of the appellant.  When he is sentenced, he may file a separate appeal against sentence. He will have recourse to an application to stay the execution of the sentence by way of a bail application if it were a custodial sentence. This could be done in quick time so that the amount of time spent under the sentence is minimized. For this reason, in terms of being subjected to the process, yes, he will be sentenced but the service of that sentence could be stayed by grant of bail thereby reducing or eliminating the impact of that sentence. Conviction and sentencing will proceed  according to law. There is no prejudice to his right to defend the charge. That has been done. He has a right to contest the punishment. The opportunity is there. When sentenced, he has a right to appeal the sentence. That right will be afforded. 

16.  In Avia Ahihi v The State (No. 1) [1981] PNGLR 81 at 107, the full Court said, "the interest of justice" means "justice according to law." The judicial discretion must be exercised properly and judicially when it comes to determining the interest of justice: per Gavara-Nanu in Bakani v Dipo (2001) SC 659. The Court must "having regard to the primary relief claimed, the nature of the persons and bodies against whom relief may be granted by way of such an order and all the circumstances of the case, it would be appropriate, just and convenient for the injunction to be granted on an application .. ": Isaac Lupari v Sir Michael Somare (2008) N3476.

 17.    The appellant's case on appeal against conviction and the prayer for relief, though he has an arguable case, is conjecture. When he is sentenced and does  not win the appeal against conviction, the sentence will be adjusted to take into account the sentence  already served. If he wins the appeal against conviction, after sentence is passed, even then, if he has been wrongfully convicted and sentenced, his recourse may be in civil remedy or Constitutional remedy in damages. 

17.    Balancing all these considerations, notwithstanding the findings I have made in his favour, the interest of justice being the most critical and dominant consideration favours the continuation of the trial to its logical conclusion as required by law. The respondent  has secured a conviction for which it is entitled to the balance of the judgment on penalty.  These two considerations weigh heavily in persuading me that I should refuse the application.
 
18.    The formal orders are:

(1) The application for interim orders under s 5(1)  (b) of the Supreme Court Act is refused. 
(2) Cost of the application shall be in the cause. 
____________________________________________
Young & Williams:  Lawyers for the Appellant 
Public Prosecutor:  Lawyers for the Respondent