SC2456

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO 70 OF 2022

PETER TAUL
Applicant

V

THE STATE 
Respondent

Waigani: Cannings J
2023: 15th August, 5th September

CRIMINAL LAW – sentences – application to Supreme Court for leave to apply for review of sentence passed by National Court – Constitution, s155(2)(b) – considerations relevant to determination of leave application.

A prisoner who had been sentenced to death by the National Court and recently had his sentence commuted to life imprisonment applied to a single Judge of the Supreme Court for leave to apply under s 155(2)(b) of the Constitution for review of his sentence. He previously appealed unsuccessfully against his conviction and death sentence. He argued that there was a change of circumstances since his appeal was dismissed in that the law had recently changed and the death penalty abolished, and his sentence had been commuted to life imprisonment. The question before the Court was whether leave to review sentence should be granted.

Held: 

(1)	An application for leave for review under s 155(2)(b) of the Constitution may be heard and determined by a single Judge of the Supreme Court. 

(2)	When deciding whether to grant leave, three criteria, all of which should support the grant of leave, are considered: (i) whether it is in the interests of justice to grant leave; (ii) whether there are cogent and convincing reasons and exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity; and (iii) whether there are clear legal grounds meriting a review of the decision.

(3)	It was not in the interests of justice to grant leave as an appeal against conviction and sentence has already been dismissed by the Supreme Court. The applicant’s rights regarding a review of the sentence passed by the National Court have been exhausted. The extenuating circumstances relied on by the applicant give rise to no cogent or convincing reasons or exceptional circumstances. There are no clear legal grounds warranting a review of the death sentence or the life sentence. Leave refused.

Cases Cited

The following cases are cited in the judgment:

Bob v The State (2005) SC808
Hagena & Ors v The State (2017) SC1659
The State v Kiapkot & Ors (2011) N4241
The State v Kiapkot & Ors (2011) N4381

Counsel

P Taul, the applicant, in person
T Kametan, for the Respondent 

5th September, 2023

1.      CANNINGS J: Peter Taul is a prisoner at Bomana Correctional Institution serving a sentence of life imprisonment. He was, with four others, convicted of eight counts of wilful murder after a trial at Kokopo before Sawong J in 2011 (The State v Kiapkot & Ors (2011) N4241). He was sentenced to death (The State v Kiapkot & Ors (2011) N4381). 

2.     An appeal to the Supreme Court against conviction and sentence was dismissed in 2017 by the Supreme Court (Gavara-Nanu J, Mogish J, Kangwia J, Pitpit J; Hartshorn J dissenting) (Hagena & Ors v The State (2017) SC1659).

3.     In May 2022 his death sentence was commuted to a sentence of life imprisonment. That decision was made by the Governor-General on the advice of the National Executive Council after receiving a report from the Advisory Committee on the Power of Mercy (National Gazette No G360 of 11 May 2022). 

4.     On 1 December 2022 he filed an application in the Supreme Court for leave to review the sentence of death and the replacement sentence of life imprisonment. He argues that there has been a change of circumstances since his appeal against the death sentence was dismissed. He points out that the death penalty was abolished by an amendment to the Criminal Code in 2022. He is now serving a life sentence. He has been in prison for 16 years and successfully undertaken rehabilitation programs. He submits it would be just to allow him to live his life back in his community.

5.     The question before me is whether he should be granted leave to have his death sentence and/or his life sentence reviewed by the Supreme Court. It is an application for leave to apply for review under s 155(2)(b) of the Constitution of the decision of the National Court to impose on him the sentence of death in 2011. Section 155(2)(b) states:

The Supreme Court … has an inherent power to review all judicial acts of the National Court.

6.     If there is a right to appeal against any decision of the National Court that has not been exercised or, as in this case, exhausted, the person aggrieved by the decision can only have it reviewed by the Supreme Court with leave of the Court. An application for leave is heard and determined by a single Judge in accordance with Order 5 rule 3 of the Supreme Court Rules 2012. 

CRITERIA 

7.     It has been spelt out in a long series of decisions that in deciding whether to grant leave for review by the Supreme Court of a National Court decision (whether made in the civil jurisdiction of the National Court or as here in its criminal jurisdiction), there are three criteria to consider, all of which should support the grant of leave:

(i)	whether it is in the interests of justice to grant leave; 

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

(iii)	whether there are clear legal grounds meriting a review of the decision.

8.     As to cogent and convincing reasons for granting leave, it is relevant to consider the reasons for not filing an appeal within time and the merits of the case sought to be argued (see Mark Bob v The State (2005) SC808).

DETERMINATION

9.     It is not in the interests of justice to grant leave as an appeal against conviction and sentence has already been dismissed by the Supreme Court. The applicant’s rights regarding a review of the sentence passed by the National Court have been exhausted. 

10.     The extenuating circumstances relied on by the applicant (that the death penalty has been abolished, that he is now serving a life sentence and that he has served 16 years in prison and undertaken rehabilitation programs) are neither cogent nor convincing reasons to grant leave. There are no exceptional circumstances. The applicant is unable to point to any substantial injustice. The applicant is serving a life sentence as he has been convicted of very serious crimes.

11.     There are no clear legal grounds warranting a review of the death sentence. There are no grounds that warrant a further review of the death sentence; and there are no grounds that warrant a review of the life sentence the applicant is now serving. Leave must be refused.

ORDER 

1.	Leave to apply for review under s 155(2)(b) of the Constitution of the sentence of death passed by the National Court on 14 July 2011 or the sentence of life imprisonment to which the applicant is now subject, is refused.

2.	The file is closed.
_____________________________________________________________
Public Prosecutor: Lawyer for the Respondent