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Kami v The State [1996] PNGLR 112 (2 August 1996)

PNG Law Reports 1996

[1996] PNGLR 112 - SC Review 6 of 1995; Enoch Kami v The State

[1996] PNGLR 112

SC507

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ENOCH KAMI

V

THE STATE

Wewak

Kapi DCJ Los Salika JJ

29 July 1996

2 August 1996

JUDICIAL REVIEW - s 155(2)(b) of the Constitution - Review of sentence - not falling within the principles enunciated in Aihi v The State [1981] PNGLR 81.

Facts

The applicant was convicted for the offence of rape and sentenced to five years imprisonment on 27 May, 1994. He filed an appeal form which was filed in the Supreme Court Registry on 15 December, 1994. As the appeal was out of time it was amended to be a Supreme Court review under s 155(2)(b) of the Constitution.

Held

1.       The applicant relies on certain events which happened after his sentencing. However, there has been no evidence to prove those matters.

2.       The applicant wants the Court to review the severity of his sentence. The principles applicable for such a review have been laid down in Aihi v The State [1981] PNGLR 81. This application does not satisfy those requirements.

Cases Cited

Papua New Guinea case cited

Aihi v The State [1981] PNGLR 81.

Counsel

Applicant in person.

C Manek, for the respondent.

2 August 1996

KAPI DCJ LOS SALIKA JJ: The applicant in this case was convicted by the National Court of the offence of rape on 27 May, 1994 and sentenced to five years imprisonment on the same day. He filed an appeal on the form provided by the Court for prisoners who wish to appeal in person. The appeal form was received in the Supreme Court Registry on 15 December, 1994. It is therefore, clear that the appeal was filed out of time. The applicant has lost his right of appeal under the Supreme Court Act.

Upon close examination of the appeal form, it has been amended to be a Supreme Court Review rather than an appeal. We take this matter to be a judicial review under s 155(2)(b) of the Constitution. The principles applicable to such a review are set out in Aihi v The State [1981] PNGLR 81. The nature of such a judicial review is set out in the judgment of Kearney DCJ. At page 92, he stated:

“Whether the power is to be exercised in a particular case must always remain wholly a matter for this Court, in its discretion. I consider that it is truly discretionary jurisdiction, of the same type as that of the Privy Council in exercising what the common law recognises as its inherent prerogative to grant special leave to appeal, though an applicant has no right by statute to appeal.”

On page 93 he further stated:

“Whether or not this Court would exercise that power and grant leave to appeal, depends on the circumstances of the particular case. It is wholly discretionary, but I think that in general leave would be granted only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity.

Some guide perhaps may be obtained from a consideration of the grounds upon which the Privy Council grants special leave to appeal in criminal cases pursuant to the inherent prerogative power; see the cases cited in Halsbury, especially R v Bertrand (1867) LR 1; and in the A. Digest (33 A. Digest (2nd ed.), 465 at 474. The jurisdiction is seen as one of last resort; briefly, for its history, (see Nadan v The King [1926] AC 482 at 491-2). It is to be noted that the Privy Council does not exercise this jurisdiction as would a court of criminal appeal; see the Practice Note at (1932) 48 TLR 300.”

The review in this case relate to severity of sentence and the grounds upon which the applicant relies in this case relate to factors which allegedly occurred after the sentence was imposed. In brief the applicant in the review form stated that since the sentence, the victim has become his customary wife and that bride price has been paid in accordance with custom.

Counsel for the respondent has submitted that these are matters which occurred subsequent to the sentence and that no proper evidence has been called to prove these matters. We did make an attempt to assist the applicant by requesting him to call the victim and the relatives to give evidence to prove these matters. He simply replied that he gave them forms to make statutory declarations but they failed to return this to him or to the Court. We enquired if the victim or relatives were present at the hearing of the review but none of them were present. In view of the failure to call evidence, we would not take these matters into account.

We have examined the sentence imposed by the trial judge and we cannot find any error or injustice in the sentence that would bring this case under the category of cases set out in Aihi case. This is not an appropriate case for leave to be granted and we would dismiss the application. We confirm the sentence imposed by the trial judge.

Appellant in person.

Lawyer for the respondent: Public Prosecutor.