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Yalo v State [2018] PGSC 14; SC1669 (2 May 2018)

SC1669

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. 09 OF 2017

BETWEEN:
LARSON YALO
Applicant

AND:
THE STATE
Respondent

Mt. Hagen: Salika DCJ, Geita and Tamate JJ

2018: 30 April & 02 May

JUDICIAL REVIEW APPLICATION – Prisoner seeking leave to review under s. 155 (2) (b) of the Constitution – Failure to file appeal within time – Applicant to satisfy the requisite criteria for leave to be granted –Review is not of right but subject to leave been granted.

Cases:

Application by Anderson Agiru (2002) SC 686
Application by Herman Leahy (2006) SC 855
Application by John Maddison and Bank South Pacific Ltd (2009) SC 984
Alphonse Tay v. Newcombe Gerau (2011) SC 1097
AviaAihi v The State (No. 1) [1981] PNGLR 81
AviaAihi v The State (No. 2) [1982] PNGLR 44
Benjamin Sengi v. The State (2014) SC1425
Martin v. The State [2018] PGSC 4; SC 1655
Mark Bob v The State (2005) SC808

Counsel:

Mr. F. Kirriwom, for the Applicant
Mr. C. Sambua, for the Respondent

02^nd May, 2018

1. BY THE COURT: The applicant seeks leave to review his conviction entered against him and the sentence of 17 years imprisonment in hard labor imposed upon him for the offence of rape with circumstances of aggravation. The application for leave is made pursuant to s.155 (2) (b) of the Constitution as a result of the applicant failing to file his appeal within the required 40 days period as stipulated by s. 29 of the Supreme Court Act, Ch. 37: AviaAihi v. The State (No. 1) [1982] 81;Application by Anderson Agiru (2002) SC686; Application by Herman Leahy (2006) SC855; AlphonseTay v. NewcombeGerau (2011) SC1097; Benjamin Sengi v. The State (2014) SC1425.

2. Section 155 (2) (b) of the Constitution gives the Supreme Court inherent powers or jurisdiction to review all judicial acts of the National Court. It provides that:

“Section 155. The National Judicial System.

(2) The Supreme Court –

(b) has inherent power to review all judicial acts of the National Court; and ..”

3. We emphasis here that ‘to access the Court’s jurisdiction under this section is not as of right but the applicant must first seek leave of the Court to review the acts of the National Court that he or she is concerned about. In so doing he must show convincing reasons why he did not appeal within the prescribed 40 days period’: Peter Martin v. The State [2018] PGSC 4; SC1655.

4. It is well settled law in our jurisdiction that where a right of appeal has not been exercised within time an applicant for review must first satisfy the following criteria before leave can be granted: Mark Bob v. The State (2005) SC 808.These are:

(a) that it is in the interest of justice to grant leave; and
(b) there are cogent and convincing reasons and exceptional circumstances, eg. some substantial injustice is manifest or the case is of special gravity; and
(c) there are clear legal grounds meriting a review of the decision.

5. In the present case the applicant was sentenced on the 21^st of September, 2016. He did not file his appeal within the required 40 days period as stated by Statute which would have been 31^st of October, 2016. He however, filed his review some 4 months after on the 2^nd of March, 2017.

6. The applicant in his reasons for the delay stated in his affidavit that he did prepare his notice of appeal and gave it to the Baisu Correctional Service reception clerk to register and forward to the Supreme Court Registry on or about 18^th of October, 2016. Sometime after that he states he was transferred to Barawagi CS as a result of a riot at the Baisu CS and it was from there that he followed up and subsequently filed his review out of time. There is no affidavit evidence from Baisu CS Reception to verify his claim that he did give his notice of appeal to them to file within time and further that he was also transferred to Barawagi CS as a result of a riot at Baisu in October, 2016.

7. We find these reasons unconvincing and unexceptional without any independent evidence supporting or verifying his explanation for the delay though the delay was insignificant. Whether the delay is short or longer there must be convincing reasons to influence the Court to grant leave: In Peter Martin v.The State [2018] SC1655 – the delay was about 2-3 days after the 40 days period but because there was no affidavit stating the reasons for the delay and applicant also had not shown cause the merits of his case, leave was refused.

8. This Court in Alphonse Tay v. Newcombe Gerau (supra) and John Maddison and Bank South Pacific (supra) has stated that ‘there is a public interest in the finality of litigation that requires consideration and the parties who are aggrieved by a judgement of the National Court have a duty to agitate their grievances promptly and with all due dispatch”. This we agree and apply in this matter.

9. In relation to the requirement that the applicant must show there are clear legal grounds meriting a review of the decision the applicant has failed to satisfy this requirement. He has failed to briefly but specifically state the grounds for his appeal as required by Part 3 Order 7 Rule 9 (c) of the Supreme Court Rules. He has also not particularized the grounds he relies on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law: Part 3 Order 7 Rule 10. We agree on the submissions by the Respondent on this point and state that the applicant has not satisfied this requirement.

10. In light of the above discussions we are of the view that it will not be in the interest of justice to grant leave. The applicant has therefore failed to satisfy all three requirements for leave thus his application for leave for judicial review is refused accordingly.

ORDERS

(1) Application for leave to review is refused
(2) The decision of the National Court on conviction and sentence is confirmed.

Orders accordingly,
______________________________________________________________
Office of the Public Solicitor: Lawyer for the Applicant
Office of the Public Prosecutor: Lawyer for the Respondent