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Subena v State [2018] PGSC 13; SC1667 (3 May 2018)

SC1667

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV No. 52 OF 2017

REVIEW PURSUANT TO SECTION
155(2)(b) CONSTITUTION

BETWEEN:

IAN SUBENA
Appellant

AND:

THE STATE
Respondent

Mt. Hagen: Salika DCJ, Geita & Anis JJ
2018: 1^st & 3^rd May

JUDICIAL REVIEW - Application for leave to review sentence - section 155(2)(b) of the Constitution - applicant has lost his right of appeal - delay of 1 year 6 months - whether inordinate delay - whether applicant has met the requirements for leave to review - requirements discussed

Cases cited:

Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Application by Anderson Agiru (2002) SC686
Kitogara Holdings Ltd v. NCDIC [1988-89] PNGLR 346
Avia Aihi v The State [1981] PNGLR 81
Avia Aihi v The State (No 2) [1982] PNGLR 44
Danny Sunu v The State [1984] PNGLR 305
The Independent State of Papua New Guinea v Colbert [1988] PNGLR 138
SC Rev No 5 of 1988; Re Applications of Kasap and Yama [1988-89] PNGLR 197
Maddison and Bank of South Pacific Ltd (2009) SC984
Sakai Saraga v. The State (2017) SC1592
Application by Jeffrey Balakau (1996) SC529

Counsel:

Mr R. Pariwa, for the Appellant
Mr C. Sambua, for the Respondent

3rd May, 2018

1. BY THE COURT: The applicant seeks leave to review his sentence of 9 years imprisonment, which was imposed by the National Court on 17^th November 2015. The review was filed on 1^st June 2017. It is contained at page 4 of the Review Book (RB). It was discovered at the start of the hearing through counsel that the applicant had not filed a supporting affidavit. Attempt by the applicant's counsel to seek an adjournment to file the affidavit was rejected. Counsel proceeded with the application based on instructions received from the applicant.

2. The Court reserved its ruling to a date to be advised. The Court is now ready with its decision and parties have been notified.

3. The applicant was indicted on 4^th November 2015 with the charge sexual penetration of a child, contrary to section 229A subsections (2) & (3) of the Criminal Code Act Chapter No. 262 (Criminal Code). He pleaded guilty to the charge on arraignment that day and was convicted. He was sentenced on 17^th November 2015, to 9 years imprisonment less the time served in custody. The applicant was not happy with his sentence. On 1^st June 2017, he filed this Supreme Court review (review). The review was filed under section 155(2)(b) of the Constitution. Section 155(2)(b) says that the Supreme Court has an inherent power to review all judicial acts of the National Court.

4. The processes for reviews filed in this manner are settled. See Supreme Court Reference No 13 of 2002: Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Application by Anderson Agiru (2002) SC686. The Supreme Court must firstly identify the review that is before it, with one of the following categories:

(1) Where parties have allowed a statutory right of appeal to expire (Avia Aihi v The State (supra)).

(2) Where right of appeal is prohibited or limited by law (Election Petition cases where appeal is prohibited).

(3) Where there is no other way of going to the Supreme Court (see Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433 where the State had no other way of coming to the Supreme Court).

5. In the present case, the applicant herein had a right of appeal (with leave) against his sentence. He was sentenced on 17^th November 2015. Pursuant to section 29(1) of the Supreme Court Act, the applicant had 40 days after the date of sentence, to file his application for leave to appeal against his sentence, at the Supreme Court. The 40^th day for him to file his appeal fell on 28 December 2015. He has not done that but has instead filed this review on 1^st June 2017. So the review was filed outside the 40-day appeal period, that is, 1 year 6 months after he had lost his right of appeal (with leave). We find that the applicant's case falls within the first category as held in Anderson Agiru (supra).

6. The next process of course is to consider the requirements for leave. Justice Woods in the Supreme Court case Kitogara Holdings Ltd v. NCDIC [1988-89] PNGLR 346, considered the following cases: Avia Aihi v The State [1981] PNGLR 81; Avia Aihi v The State (No 2) [1982] PNGLR 44; Danny Sunu v The State [1984] PNGLR 305; The Independent State of Papua New Guinea v Colbert [1988] PNGLR 138 and SC Rev No 5 of 1988; Re Applications of Kasap and Yama [1988-89] PNGLR 197. From these, His Honour summarised the 3 considerations required for leave as follows:

1. that it is in the interests of justice;
2. that there are cogent and convincing reasons or exceptional circumstances; and
3. that there are clear legal grounds meriting a review of the decision.
   

7. We fully endorse them as valid considerations that are applicable herein.

8. We ask ourselves this. Would it be in the interest of justice if leave is granted to allow the review to be heard? The first thing we notice is the delay. The delay period as stated above is 1 year 6 months. Was there inordinate delay? In Kitogara Holdings Ltd (supra), the Supreme Court, in refusing the application for leave for review under section 155(2)(b) of the Constitution, noted a delay of 6 months from the time the 40 day period ended to the time the review was filed. In the case Application by John Maddison and Bank of South Pacific Ltd (2009) SC984, the Supreme Court, again and in refusing to grant leave for review under section 155 (2) (b) of the Constitution, considered that a delay of 9 months, after the 40-day appeal period had expired, was inordinate and inexcusable. Lastly, we refer to the case Sakai Saraga v. The State (2017) SC1592. The Supreme Court, in refusing leave to review, noted that there had been a delay of over 7 months after the expiry of the 40-day appeal period. When we compare these cases to the present case, we note that the delay period here is much longer. We therefore find the delay of 1 year 6 months by the applicant in filing his review, as inordinate delay.

9. Secondly, we note that the applicant has not provided any evidence to explain the said delay. We reject the reasons given by counsel over the bar table. The applicant has had sufficient time about 10 months from the time he filed his review, to file an affidavit to explain himself of the delay. He has not done that and we note that attempts at the start of the hearing at the last minute by his counsel to address that with a possible request for an adjournment, had been denied by this Court.

10. The applicant in not filing an affidavit in support reveals yet another deficiency in the leave application, that is, we note that the applicant has not explained whether he had exhausted or had taken appropriate steps to exhaust his statutory right of appeal before he filed the review. This requirement is also mandatory. The Supreme Court in Anderson Agiru (supra) states as follows:

The authorities show that where the law provides for review or appeal to the Supreme Court, the discretionary power of the Court under s 155 (2) (b) cannot be invoked without first exhausting the avenues provided for by law.

11. The Supreme Court In Application by Jeffrey Balakau (1996) SC529 states the principle in no-uncertain terms as follows:

We would add though that this interest or right to invoke this power, whilst it exists concurrently, cannot be invoked concurrently with the right of appeal procedures enabled under subordinate statutes such as the Supreme Court Act. It is a reserve supervisory power, that is available to the Court, to be invoked in the discretion of the Court upon good grounds being established.

As with other discretionary jurisdictions, the applicant ought first to have persued his rights of appeal or review under appropriate primary legislation, and only when those avenues have been fully exhausted might he seek to invoke this reserve jurisdiction of the Court.

It would not be appropriate or permissible to seek to invoke this jurisdiction without first having pursued the rights of appeal or review under the relevant legislation.”

12. Without any evidence or explanations from the applicant to say whether he had exhausted his primary right of appeal (with leave) or explain what steps he had taken, we are left with little or no choice but to assume that no such steps had been taken before the applicant filed the review.

13. In regard to the third consideration for leave, clear legal grounds, we refer to the intended grounds of review in the review document. The applicant says and we quote:

I appeal against the decision of sentence that the court was not considerate fair and just in its decision. The court didn't consider the fact that it is a consent matter and not a rape. The court fail to consider this fact, it was her sister who came across us framed up all this false allegation that I rape her sister with out confirming that we both agree to have sex. I pray that the honourable court will consider its failure in its decision and sentence.

14. Do these reasons raise any valid grounds for review if leave is granted we ask? We answer in the negative. Firstly, we note that the reasons relate to challenge on conviction rather than sentence, the latter, which is the basis for the intended review. We therefore find the applicant's reasons or grounds misconceived. We would further comment that consent cannot be raised as a defence where the victim of sexual assault is a minor or is under the age of 16 years old. This is expressly stated in section 229F of the Criminal Code, which we need not go into in detail but mention for this purpose.

15. For the above reasons, the application for leave to review sentence is declined. Sentence imposed by the National Court upon the applicant is confirmed.
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Office of the Public Solicitor: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent