Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

Martin v State [2018] PGSC 4; SC1655 (2 March 2018)

SC1655

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 55 OF 2015

BETWEEN:
PETER MARTIN
Appellant

AND:
THE STATE
Respondent

Waigani: Salika, DCJ; Kandakasi & Makail, JJ
2017: 15 December
2018 : 02 March

PRACTICE AND PROCEDURE – Judicial review application - Prisoner in person application – failure to file an appeal within time – appeal converted into an application for judicial review – s.155(2)(b) of the Constitution – leave for judicial review must be obtained first.

Cases cited:

Avia Aihi v The State (No 2) (1981) PNGLR 81
Danny Sunu v The State (1984) PNGLR 305
Mesach Autahe v Paul Korerua (2008) SC 956
In re Application of Sakaire Ambo (2012) SC1195

Counsel:

Appellant, In Person
Mr A Kupmain, for the Respondent

02^nd March, 2018

1. BY THE COURT: INTRODUCTION: The applicant was tried on a charge of Murder under s.300(1) of the Criminal Code but was convicted on the alternative charge of Manslaughter, a charge under s.302 of the Criminal Code. The verdict of manslaughter was arrived at under s.539(2) of the Criminal Code. Section 539 of the Criminal Code provides:
   

539. Charge of murder or manslaughter.

(1) On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

(2) On an indictment charging a person with the crime of murder, he may be convicted of the crime of manslaughter but not, except as is expressly provided in this Code of any other offence other than that with which he is charged.

(3) On an indictment charging a person with the crime of manslaughter he shall not, except as is expressly provided in this Code, be convicted of any other offence.

(4) On an indictment charging a person with wilful murder, murder or manslaughter, the accused person may be convicted of—

(a) unlawfully doing grievous bodily harm to such other person; or

(b) unlawfully assaulting such other person and thereby doing him bodily harm; or

(c) unlawfully wounding such other person; or

(d) unlawfully assaulting such other person.

2. He was convicted of Manslaughter under s.539(2) as highlighted above on 13 April 2015 and sentenced to 7 years imprisonment on 31 August 2015. He filed his notice of appeal on 13^th October 2015 which was filed outside the 40 days appeal time allowed by law. His appeal was then converted into an application for judicial review under s.155(2)(b) of the Constitution which gives the Supreme Court inherent jurisdiction to review all judicial acts of the National Court.
   
3. To access the Court’s jurisdiction under s.155(2)(b) of the Constitution 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 doing that the applicant must show convincing reasons why he did not appeal within the prescribed 40 days stipulated under the Supreme Court Act Section 27 and give reasons why leave should be granted.
   
4. Section 155(2)(b) says:-
   

155. The National Judicial System.

(2) The Supreme Court—

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

This provision with respect invests in the Supreme Court the inherent powers to review all judicial acts of the National Court. The Supreme Court in Avia Aihi v The State (No 2) (1981) PNGLR 81 said that it had absolute discretion under s.155(2)(b) of the Constitution to review all judicial acts of the National Court. Subsequently, cases like Danny Sunu v The State (1984) PNGLR 305, Mesach Autahe v Paul Korerua (2008) SC 956, In re Application of Sakaire Ambo (2012) SC1195, have all reaffirmed that Statement of the law expounded by the Supreme Court in Avia Aihi. With respect, we affirm the statement of the law in that case as being correct.

5. An applicant invoking the review powers of the Supreme Court under s.155(2)(b) of the Constitution without first obtaining leave commits an abuse of process and as such the application will be dismissed. Without leave the Supreme Court lacks jurisdiction. See Miring Munziong v Seri Seneka (2013) SC1291. With respect this profound statement by the Supreme Court is the law with which this Court also agrees with.
   
6. This is a case where the applicant did not exercise his rights to appeal in the time permitted by law. This case therefore falls into the category of Avia Aihi v The State (No2) (1982) PNGLR 44, and Mesach Autahe v Paul Korerua (2008) SC956. In the latter case the applicant was required to first give reasons for not filing an appeal within time and second to demonstrate the merits of her case to be argued so as to activate the review powers of the Supreme Court. With respect, she successfully did activate the review powers in her favour.
   
7. In this case, there is nothing from the applicant by way of affidavit evidence why he failed to file an appeal within the 40 days allowed. Moreover he has not shown cause and the merits of his case for leave to be granted to him under s.155(2)(b) of the Constitution. On both fronts he has failed the critical obligation on him to satisfy the pre-requisites of an application for leave for judicial review.
   
8. That being so the Court refuses to firstly grant leave for judicial review as it is an abuse of the process and secondly refuse the review application itself.
   
9. The Court will not descend into dealing with the applicant’s grounds for judicial review because leave to get there for judicial review is refused.
   

Orders accordingly.

______________________________________________________________
Appellant in person
Public Prosecutor: Lawyer for the State