Sunu, Walter, Gagoro and Haro v The State [1984] PGSC 17; [1984] PNGLR 305 (2 November 1984)

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[1984] PNGLR 305 - Danny Sunu, Namabai Walter, Iku Gagoro and Philip Haro v The State�

IN THE MATTER OF AN APPLICATION FOR REVIEW UNDER S. 155 (2)(B) OF THE CONSTITUTION

PRACTICE AND PROCEDURE - Supreme Court - Application for review of decision of National Court under s. 155(2)(b) of the Constitution -Form of application - To be distinguished from appeal.

CONSTITUTIONAL LAW - Powers of Supreme Court - Review of judicial acts of National Court - Nature of application - Principles applicable - Constitution, s. 155(2)(b).

COURTS AND JUDGES - Supreme Court - Review of decision of National Court - Nature of application - Principles applicable - Constitution, s. 155(2)(b).

N1>(1)�� Where it is intended to apply to the Supreme Court for review of a decision of the National Court under s. 155(2)(b) of the Constitution the procedure to be adopted is an application to the Supreme Court in those terms as distinct from an appeal.

N1>(2)�� The discretionary power to grant a review of a decision of the National Court under s. 155(2)(b) of the Constitution should be exercised only where:

N2>(b)�� there are cogent and convincing reasons or exceptional circumstances; and

Avia Aihi v. The State [1981] P.N.G.L.R. 81 and Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44, adopted and applied.

N1>(3)�� In deciding whether there are cogent and convincing reasons the following matters are relevant:

N1>(4)�� In the circumstances the application to review sentences of five years imprisonment imposed under the minimum penalties legislation in respect of charges of breaking and entering a warehouse and stealing therefrom, should be granted, the sentences quashed and the matter remitted to the National Court for sentence in accordance with the decision in The State v. Danny Sunu [1983] P.N.G.L.R. 396.

This was an application for review of a decision of the National Court under s. 155(2)(b) of the Constitution. For earlier proceedings in which a question of law relevant to the application was determined see The State v. Danny Sunu [1983] P.N.G.L.R. 396.

PRATT MCDERMOTT JJ: The surrounding facts are set out in the judgment of Woods J.

The matter originally came before us in the form of an appeal. It appears counsel anticipated a conversion of the appeal into a review under the Constitution, s. 155(2)(b), thus following a course similar to that which developed by sheer necessity in the pioneering case of Avia Aihi v. The State [1981] P.N.G.L.R. 81. As Kearney Dep. C.J. said at 92: �... the process of review is equivalent to the process of appeal�. The order made in that case was one granting leave for the applicant to file an affidavit in support of her application for leave to appeal. Subsequently, such leave was granted to her: Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44.

At the outset it is desirable to attempt some clarification of terminology. The use of terms more appropriate to an appeal tend not only to confuse but have achieved that very result in the present case. It is disconcerting to say the least for an Appeal Court to find that although it has before it a document entitled �Appeal Book�, complete with Supreme Court Appeal Number, it is not the intention of counsel to argue an appeal at all, but instead to make an application for review under the Constitution. Whilst the majority view on matters of principle is clear enough in Avia Aihi v. The State, there is an inherent conflict in the terminology used by Kidu C.J. and Andrew J. on the one hand, and that of Kearney Dep. C.J. and Kapi J. (as he then was) on the other. With great respect it seems to us that an adoption of the views of the former will eradicate the present confusion. To that end the court suggested to counsel on the first day of hearing that an adjournment should be granted in order to consider the advisability of drawing fresh documentation to be entitled �Application for review under section 155(2)(b)� and such is the application presently before us. The appeal itself has already been dismissed as it was clearly out of time for reasons which will emerge presently.

In Avia Aihi v. The State [1981] P.N.G.L.R. 81 at 88 Kidu C.J. concludes his judgment with the following:

�I concur with the Deputy Chief Justice that this Court has discretionary power given to it by s. 155(2)(b) of the Constitution and the applicant should be required to convince the Court why she should have this discretion exercised in her favour to allow her leave to apply for her sentence to be reviewed.�

Although his Honour agreed with the order which was eventually made in the case, and although Andrew J. agreed with �the outline of the procedure to be adopted�, it is clear from the general thrust and tenor of the two judgments that a definite distinction existed in the minds of their Honours between an appeal and a review. Whilst dealing with the question of inherent jurisdiction in Avia Aihi v. The State, Andrew J. consistently refers not to appeals but to the �power to review�. In their joint judgment �Avia Avia v. The State (No. 2) at 45, although their Honours once again referred to an appeal in which leave has been sought there is nevertheless further reference to the discretionary power of the Court to review acts of the National Court irrespective of the terms of s. 27 of the Supreme Court Act 1975. After examining several authorities they specifically referred to an application �under s. 155(2)(b) of the Constitution to this Court to review his or her sentence�.

We consider that as an extension of the reasoning of the Chief Justice and Andrew J., any reference to an appeal or leave to appeal should be studiously avoided. Of course what Avia Aihi v. The State [1981] P.N.G.L.R. 81 did was to break new ground completely. Just how new can best be gauged by the strong dissenting judgment of Greville-Smith J. The case clearly established not only that a right of judicial review is given to a citizen quite apart from the right to appeal in the ordinary accepted sense of that word, but further established the principles upon which such right may be exercised. We propose to ascertain what should be done in the present application in the light of those principles.

It is clear from the format of our appeal legislation with its hierarchy of courts, from the wording of the Constitution, and especially from the judgment of their Honours in the Avia Aihi cases that any applicant for a review under s. 155(2)(b) must first and foremost convince the court, despite a failure to exercise a right to appeal against the decision which is disputed, that it should exercise its inherent and discretionary power in favour of the application. It is equally clear that such power will be exercised only in �exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity� (per Kearney Dep. C.J. in Avia Aihi v. The State [1981] P.N.G.L.R. 81 at 93), or that there are �cogent and convincing reasons and exceptional circumstances� (per Kidu C.J. and Andrew J. in Avia Aihi v. The State (No. 2) at 47). The principle is that the discretion will be exercised only where it is in the interests of justice, and the court is satisfied there is �grave reason to apprehend that justice has actually miscarried, that is to say, that the conviction was contrary to the truth and justice of the case�: see Kidu C.J. and Andrew J. in Avia Aihi (No. 2) at 46 adopting what the pre-Independence Full Court said in The Secretary of Law v. Tisunkac Nawok Domstock [1974] P.N.G.L.R. 246 at 248.

In determining whether or not there are �cogent and convincing reasons� we agree with the approach of Kapi J. in Avia Aihi (No. 2) at 61, that the merits of the application, or perhaps rather more specifically, the merits of the case to be argued must form part of the �cogent and convincing reasons�. After all if the matter, the subject of the application has no merit whatsoever, it is impossible to see how there could be any cogent or convincing reason for granting a review.

Therefore, the first thing to be decided by this Court, is whether the applicants have made out sufficient reasons and exceptional circumstances for the court to grant a hearing. After all they have demonstrably ignored their rights to appeal. The person ultimately responsible for their interests was the Public Solicitor. There were, however a number of novel features about this case, not least of all contributed to by the fact that theirs was the first case to come before a judge under the minimum penalty legislation. In addition, there has been no ruling to date by the Supreme Court on the effect which a reference under s. 21 of the Supreme Court Act (Ch. No. 37) has on any order made by the referring judge. In the present case, five years minimum penalty was imposed. The question referred was whether or not the trial judge had a discretion to suspend part of that sentence. The sentence itself was not held in abeyance or made subject to the reference. We believe, as the President of this Court indicated to the Public Solicitor in argument, that an appeal would have to be determined before any alteration in the period of imprisonment could be achieved, unless the trial court makes a specific order respiting or postponing execution of judgment under s. 21(2), which then allows the Supreme Court to act in accordance with s. 21(5). The Public Solicitor subsequently realised he was in error in assuming that the Supreme Court would be able to alter the sentence if it found there was indeed a power to impose suspension under s. 19 of the Criminal Code (Ch. No. 262). It seems quite clear to us, even in the absence of submissions on the point, that a failure by the trial judge to make an order under s. 21(2) would require the defence to lodge an appeal to preserve appeal rights, and to allow the Supreme Court to make subsequential orders after it has determined the point of law under reference.

The Public Solicitor has been quite frank. An appeal was not lodged because of the erroneous impression that the clients� rights were adequately safeguarded under the reference. The law in this area is still in an exploratory and developmental stage, although we now hope the principles, procedures and nomenclature are more or less settled. No doubt the introduction of the new Supreme Court Rules in the near future will greatly assist with procedure. We admit to have had in mind those procedures when considering the present application.

In essence, the applicants threw away their appeal rights because they did not believe it was necessary to exercise such rights. For all practical purposes, this decision was gravely in error. In civil proceedings of course, it may well be possible to sue a lawyer for damage occasioned by incorrect advice and if successful receive as damages an amount equivalent to that which the party would have obtained if the original proceedings had succeeded. However, that is not the position in a criminal case, especially where a minimum penalty sentence is involved. Monetary compensation is small solace in such circumstances. Consequently, had this Court been concerned with advice given in civil proceedings, there might well be no justification whatsoever for granting a review as another remedy is available to the party wronged.

There is no doubt the applicants� lawyer made a genuine and honest mistake in failing to file a protective appeal on their behalf. There is no suggestion at all of sharp practice or abuse of the system, to gain an advantage for a client. Indeed it is very difficult to imagine any advantage gained by throwing away a right to appeal. However, possible misuse of the provisions of s. 155(2)(b) for ulterior motives is a matter of concern. That situation can be met if and when it ever arises. One hopes it never will.

In our view, the applicants have made out a just and proper case for the court to exercise its powers of review under the Constitution. The drafters of the Constitution may well have had this very type of circumstance in mind. In The State v. Danny Sunu [1983] P.N.G.L.R. 396 the Supreme Court found that the learned trial judge had power under s. 19 of the Criminal Code (Ch. No. 262) to suspend part of the sentence at that time (a power taken away by Parliament later in the same month). Therefore, that power existed all the time but in fact was not exercised. To use the phrase adopted in Avia Aihi (No. 2) there would certainly be �grave reason to apprehend that justice has actually miscarried�. To deny a remedy now would be to fly in the face of justice and good conscience. Justice requires a review.

Next, to decide the merits of the applicants� case regarding matters of substance, and thereby either vary the sentence ourselves or return it to the learned trial judge for decision in accordance with the law applicable. Unlike Avia Aihi the merits of the matter for review have been argued along with the arguments in favour of the exercise of the discretion to entertain the review. The procedure in Avia Aihi was one which emerged out of the special circumstances of that case and was largely dictated by the fact that until then no decision had been made as to whether or not a right of review, as distinct from or in addition to a right of appeal, existed at all. A similar procedure should not be followed in succeeding cases.

The learned trial judge indicated that the circumstances of the case might warrant a use of the provisions of s. 19 of the Criminal Code (Ch. No. 262), but beyond that, his Honour was not prepared to go, believing he had no power to implement the section. On the material presently before this Court suspension of part of the sentence imposed is well warranted. The appropriate order is to return the matter to the trial judge to apply the section in the light of facts before him.

In cases such as this, we are really here to set out principles applicable, whether after full trial or after a plea. In the case of the former there will be many factors before the trial judge which may well not be before a Supreme Court. However, even in the case of a plea, there are aspects which are observed and available to a trial judge which would not be seen by this Court. We think it highly undesirable for a Supreme Court to impose any sentence without the comments, observations, and that most essential and valuable of all guides, the view of the trial judge as to the appropriate sentence in the case before him. Therefore in the circumstances we feel this Court should not substitute a sentence or sentences but should return the case to the trial judge with a direction that he review his sentence in the light of the principles set forth in The State v. Danny Sunu. In so doing we believe that the power to review has been exercised in favour of the applicants. The order to remit and the direction to the trial judge are part and parcel of the review power exercised in this case. There may well be circumstances where a finite order can be made by a Supreme Court under s. 155(2)(b) of the Constitution but we do not consider this to be one of those cases.

WOODS J: This is an application under the Constitution, s. 155(2)(b), for this Court to review a decision of the National Court sitting at Daru on 1 September 1983 whereby the applicants, Danny Sunu, Namabai Walter, Iku Gagoro and Philip Haro were each and severally convicted and sentenced to a minimum period of five years imprisonment with hard labour pursuant to s. 398 of the Criminal Code (Ch. No. 262). The applicants are seeking a review of the sentence imposed on the ground that the trial judge did not exercise any discretion available under s. 19 of the Criminal Code when imposing the sentence.

14 July 1983: The Criminal Code (Minimum Penalties Amendment) Act came into force. This Act imposed a minimum penalty of five years imprisonment with hard labour for the offence of inter alia breaking and entering into a warehouse and stealing.

29 July 1983: The applicants broke and entered the warehouse of the S.P. Brewery and therein stole twenty-four cartons of S.P. beer.

1 September 1983: The applicants pleaded guilty and were sentenced to five years I.H.L. The trial judge referred the following question for consideration by the Supreme Court pursuant to s. 21 of the Supreme Court Act (Ch. No. 37).

�Does a judge have a discretion under s. 19 of the Criminal Code to impose some other form of punishment despite the fact that s. 398 of the Code provides that the minimum penalty for breaking and entering a warehouse etc. and committing a crime therein is imprisonment for not less than five years.�

2 November 1983: The Supreme Court by a majority of three to two answered the above question �yes� with the proviso that under s. 19 a court cannot impose less than five years imprisonment where it exercises its discretion to impose a term of imprisonment but may suspend a portion thereof: See The State v. Danny Sunu, Namabai Walter, Iku Gagoro and Philip Haro [1983] P.N.G.L.R. 396.

7 November 1983: The Criminal Code (Amendment) Act 1983 removed any discretion available under s. 19 where minimum penalties applied.

Apparently following the sentence imposed on 1 September 1983 and the reference made to this Court on that date the applicants failed to file an appeal to this Court against what they now say was an error of law by the trial judge in failing to exercise a discretion. The applicants� legal advisers were under the mistaken belief that the reference would act as an appeal and if the reference was successful as far as the applicants were concerned, appropriate orders would be made which would protect their rights. Had the trial judge made a specific order under s. 21(2) of the Supreme Court Act (Ch. No. 37) the situation would have been otherwise.

The sentence was imposed on 1 September 1983 and the answer to the reference was given on 2 November 1983. By that latter date the time in which to lodge an appeal or in which an application to file an appeal out of time must be made had expired: see s. 17 and s. 29 of the Supreme Court Act (Ch. No. 37). Having received a favourable answer to the question under reference the applicants are now out of time to take advantage of it. It is clear that the applicants should have filed an appeal at the same time the reference was made. They did not and this Court is now unable to entertain any application for an appeal out of time.

The applicants approached this Court on the basis of seeking to appeal out of time, however they have now changed their application to one under the Constitution, s. 155(2), which reads:

(b)�� has an inherent power to review all judicial acts of the National Court, and

(c)�� has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.�

This section was considered by the Supreme Court in a similar situation in Avia Aihi v. The State [1981] P.N.G.L.R. 81 where an application to appeal out of time was made to this Court and following a hearing and decision, the application became one seeking review under s. 155(2)(b) as distinct from leave to appeal under the Supreme Court Act (Ch. No. 37). See Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44.

The appeal procedure under the Supreme Court Act (Ch. No. 37) and the inherent power to review under the Constitution must be seen as distinct powers. The Supreme Court is, according to s. 155(2)(a), the final Court of Appeal, but also has such other jurisdiction and powers as are conferred on it by �this Constitution or any other law�. See s. 155(2)(c). And the jurisdiction as a final Court of Appeal is regulated by procedures under the Supreme Court Act � for example the time procedures and see Avia Aihi v. The State [1981] P.N.G.L.R. 81 at 82:

�Section 27 of the Supreme Court Act 1975 which provides that a convicted person shall give notice of appeal or notice of application for leave to appeal in the manner prescribed by the Rules of Court, within forty days after the date of conviction, validly regulates the right to �review of sentence ... according to law� guaranteed by s. 37(15) of the Constitution.�

The inherent power of review referred in s. 155(2)(b) must be seen as something more than just an appeal. Of course it would have been seen as an alternative to anyone who has lost their right of appeal but as well it could provide an avenue similar to an appeal where an appeal was specifically not available.

For considerations that should apply and what principles should be laid down when dealing with applications for review one can start by looking at statements made by the majority in Avia Aihi v. The State [1981] P.N.G.L.R. 81 where they suggest that:

�Section 155(2)(b) of the Constitution which gives the Supreme Court an �inherent power to review all judicial acts of the National Court�, however, invests the Supreme Court with an unfettered discretionary jurisdiction ... although the applicant has lost his right to appeal or apply for leave to appeal. The discretion should be exercised only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, the onus being upon the applicant.�

And in Avia Aihi v. The State (No. 2) at 44, Kidu C.J. and Andrew J. at 46 applied the principle that to invoke the inherent jurisdiction of the Supreme Court to review all judicial acts of the National Court under s. 155(2)(b) of the Constitution the applicant must put forward substantial reasons before the court will exercise that jurisdiction, and at 48 they emphasised that the applicant must show that legal grounds exist which would merit an appeal which grounds will generally involve questions of excessiveness.

I adopt these statements in considering this application before the court now, and as I see it there are two steps the applicants must surmount to seek the remedy they ask. First, they must persuade this Court that because of �exceptional circumstances�, or for �convincing reasons� this Court should review the judicial act of the National Court. Second, they then must show legal grounds exist which would merit this court either varying the decision of the National Court or making such orders which would result in the National Court hearing and considering its decision a second time.

On the first step, the facts are quite clear. The applicants failed to appeal. This failure was an admitted mistake by the applicants� legal advisers on the effects of the reference from the National Court. A mistake by a legal adviser is in itself not a convincing reason for a court to exercise a discretion. In civil proceedings the applicants would have a remedy in damages against the legal adviser. However in the case before us we are dealing with the liberty of the applicants and no action for damages against the legal advisers can compensate for deprivation of liberty. And as has been pointed out already there is no course of procedure available to the applicants. It must be emphasised that this inherent power to review should only be invoked where there is no other procedure or cause of action available.

The feature in this case which turns the mistake of the legal advisers into a compelling reason is the fact that the trial judge clearly suggested in his decision on sentence that he may have considered exercising any discretion available to him under s. 19 of the Criminal Code (Ch. No. 262) if that section was still available to him where minimum sentences applied. See at 13 of the review book where the trial judge said:

�I had no option in this case but to impose the minimum sentence ... I expressed a personal view that this minimum penalty was undesirable because there are different types of break and enters ... [And he repeats] But I had no option.�

In the circumstances and because of my understanding that the trial judge wanted to exercise the discretion that it now appears was available to him, I am satisfied that there are compelling reasons why this Court should hear the applicants and exercise its inherent power to review the decision of the National Court at Daru on 1 September 1983.

With respect to whether there are clear legal grounds which merit a review of, in this case, the excessiveness of the sentence it is quite clear that following the answer given by the Supreme Court to the reference in this matter (see [1983] P.N.G.L.R. 396), the trial judge has acted in error in not considering the discretion available to him under s. 19 of the Criminal Code (Ch. No. 262). And further it is clear from what the trial judge said and from an analysis of the current range of sentences imposed at that time that the sentence was manifestly excessive.

There is no material before this Court to assist us in determining an appropriate sentence and in the circumstances the trial judge did not receive any detailed submissions faced as he was with �no option�. It is therefore appropriate for this Court in this case to accede to the request to review the sentence imposed, quash the sentence imposed by the trial judge and order that the matter be returned to the trial judge for sentence. The applicants are to be remanded in custody for sentence.

Matter remitted to trial judge for sentence in light of Supreme Court Judgment No. 264.

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Supreme Court of Papua New Guinea

Sunu, Walter, Gagoro and Haro v The State [1984] PGSC 17; [1984] PNGLR 305 (2 November 1984)

Papua New Guinea Law Reports - 1984