SC1976
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 79 OF 2018

BETWEEN
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Appellant

AND
KENNETH KUNDA SIUNE
Respondent

Waigani:  Makail, J
2020: 16th & 21st July

SUPREME COURT – PRACTICE & PROCEDURE – Application for dispensation of requirement to certify appeal book – Grounds in support – Contests to inclusion of documents in appeal book – Relevance of documents – Transcripts of National Court proceedings and hearings – Supreme Court Rules – Order 7 rule 47 & Order 7, rule 43(10) & (13)(j)

Cases cited:

Nil

Counsel:

Mr. T. Mileng, for Appellant 
Ms. E. Wurr, for Respondent 

RULING

21st July, 2020

1.	MAKAIL, J: This is an application for leave to dispense with the requirement for the respondent to certify the Appeal Book pursuant to Order 7, rule 47 of the Supreme Court Rules, Section 5(1)(a) & (b) of the Supreme Court Act and Section 155(4) of the Constitution.

Background Facts

2.	It arises from an appeal against the decision of the National Court of 25th May 2018 wherein the trial judge upheld an application for enforcement of human rights and released the respondent from prison on medical grounds.

Power to order dispensation

3.	Order 7, rule 47 confers power on the Supreme Court or a Judge of the Supreme Court to dispense with the requirement for certification of an Appeal Book.  It states:

“The Court or a Judge may at any time make such orders as appears just for the expediting of the appeal”.

4.	Given this, it is not necessary to refer to Section 5(1)(a) & (b) of the Supreme Court Act and Section 155(4) of the Constitution for the exercise of power.

Requirement for Certification

5.	The requirement for the respondent to certify the Appeal Book is stipulated in Order 7, rule 43(10) & (13)(j) of the Supreme Court Rules.  

6.	Order 7, rule 43(10) states:

“The examined copy of the appeal book shall be filed in the Registry with a certificate by the parties or their lawyers that it has been examined and is correct”.

7.	Order 7, rule 43(13)(j) states:

“The certification that the appeal book has been examined and is correct”.

Reasons for refusal to certify Appeal Book

8.	It is not disputed that copies of the draft Appeal Book was delivered to the lawyers for the respondent to certify on 24th June 2020.  Included in the Appeal Books are transcripts of the National Court proceedings of 23rd to 25th May 2018.

9.	The respondent’s lawyers did not certify them.  They say a number of transcripts of the National Court proceedings/hearings prior to the hearing of 23rd May 2018 are not included in the Appeal Book.  

10.	They are relevant and should be included because they record repeated directions and reminders by the trial judge to the appellant to give access to the respondent to medical treatment.  The appellant failed.  They are for the following dates:

•	28th July 2017
•	14th September 2017
•	12th October 2017
•	2nd November 2017
•	9th November 2017
•	21st December 2017
•	16th February 2018

11.	At the hearings of 23rd and 24th May 2018, parties made further submissions in relation to whether the respondent should be released from prison on medical grounds.

12.	On 25th May 2018 the trial judge upheld the application and released the respondent on medical grounds. 

13.	The appellant says that the requested additional National Court transcripts are not relevant to the appeal because the appeal is confined to the question of whether the trial judge had power to release a convicted prisoner such as the respondent from prison on medical grounds.

14.	In any case, the transcripts have no record of what the respondent asserts because this is confirmed by the Court Reporting Services (CRS) by way of a notation by the Senior Database Officer on 15th April 2019.  She indicated that the requested transcripts are for mention only.

15.	The general rule is that the inclusion of a document in the Appeal Book must be relevant to the appeal and form part of the documentation of the National Court proceeding.  

16.	An exception to the rule is further evidence on appeal or what is commonly referred to these days as “fresh evidence” pursuant to Order 7, rules 52 to 59 of the Supreme Court Rules, cf Section 8 of the Supreme Court Act on supplemental powers of Supreme Court to order production of any document, exhibits, etc..  

17.	In this case, I uphold the second part of the appellant’s submission.  While the requested additional National Court transcripts are records of the National Court proceeding and formed part of the documentation of the National Court proceeding, they are not relevant and necessary for the hearing of the appeal.  I come to this conclusion by accepting the explanation given by the appellant that they are records of mention of the matter on various dates between 28th July 2017 and 23rd May 2018 as confirmed by the CRS Senior Database Officer.

18.  For this reason, an order for dispensation with the requirement for certification would be just for the purpose of expediting the appeal.  The application is upheld.

Order

19.	The orders are:

1.	Leave is granted to the appellant to dispense with the requirement for the respondent to certify the Appeal Book.

	2.	The appellant shall file and serve the Appeal Book forthwith.

3.	The appeal is adjourned to Monday 3rd August 2020 at 9:30 am for listings.

Ruling and orders accordingly.
________________________________________________________________
Solicitor General:		Lawyers for the Appellant  
Public Solicitor:		Lawyers for the Respondent