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RD Fishing (PNG) Ltd v PNG Telecommunication Authority [2001] PGNC 67; N2138 (20 September 2001)

N2138
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

CIA PP NO. 239 OF 2000

BETWEEN:

R.D. FISHING (PNG) LIMITED
(Respondent/Appellant)

AND:

P.N.G. TELECOMMUNICATION AUTHORITY
(Applicant/Respondent)

MADANG : SAWONG J.
2001 : 21ST JUNE, 20TH SEPTEMBER

CRIMINAL LAW - PRACTISE AND PROCEDURE - Appeal from District Court conviction - Appeal against conviction.

CRIMINAL LAW - WORDS AND PHRASES - "Conviction" - "Convicted" - when does "Conviction" / "Convicted" arises -

CASES CITED:
R v Brigitta Assamakan (1962)
Re Passingan Taru [1982] PNGLR 296
Akui Singi v The State [1985] PNGLR 260.

HELD:

(1) The expressions "Conviction" or "Convicted" mean a determination of guilt by a court,

(2) "Conviction" or "Convicted" arises when the court determines the guilt of an accused person. It does not arise when sentence is pronounced or passed.

Counsel:

B. NINAI, for the Applicant

Y. WADAU, for the Respondent

20th September, 2001

DECISION

SAWONG J: By a Notice of Motion the Applicant/Respondent has sought to have the appeal dismissed on two grounds. First, on the basis that the appeal was filed out of time and in the alternative the appeal be dismissed for want of prosecution.

The application has been contested by the Respondent/Appellant. At the hearing of the motion the alternative ground was not pursued by the applicant. Thus, the only remaining ground that was argued was that the appeal be dismissed as it had been lodged outside the time prescribed by s. 220 (2) of the District Courts Act (Ch. No. 40) (the Act.)

FACTS

The brief facts giving rise to this application are as follows. The appellant/ respondent was prosecuted in the District Court for allegedly committing offences under the Radio Spectrum Act 1996. It was prosecuted by the respondent. After a trial the respondent was found guilty and convicted. The conviction was made on the 5th of July, 2000 and sentence was passed upon the appellant on the 8th of August, 2000. On the 18th August, 2000 the appellant filed its Notice of Appeal against the conviction. Subsequently on the 6th September, 2000 the appellant filed an amended Notice of Appeal. All the grounds in the Notice of Appeal are against conviction.

SUBMISSIONS

Mr Ninai for the applicant submitted that the Notice of Appeal was filed outside of the time prescribed by s. 220 (2) of the Act and therefore it was incompetent and it ought to be dismissed. He submitted that as the appeal was against the conviction and not against sentence, and as the conviction was made on the 5th of July, 2000 the appellant had one month from the date after the day of the conviction being the 6th of July, to the 6th August, 2000 to lodge its Notice of Appeal. He submitted that in the present case the Notice of Appeal was filed on the 18th August, 2000 which is twelve days outside the time allowed under the District Courts Act.

Mr Wadau submits that the submissions made by Mr Ninai are wrong in law. He submitted that time should be calculated from the 8th August, 2000 which is the date in which the decision on sentence was handed down that being the date on which "conviction" was made.

Because of these submissions I asked counsel to address the court as to when does "conviction" arise, that is, does it arise when a determination of guilt is pronounced or made by the court or, does "conviction" arise when the sentence is passed. At that time neither counsel was able to refer me to any authorities on this point.

This issue arose as a consequence of the contentions that were made by the parties. On the one hand the applicant’s contention was that the Appellant/Respondent was "convicted" on the 5th July, 2000 when the magistrate made a determination of guilt. On the other hand the respondent’s counsel contended that the "conviction" occurred when the magistrate passed sentence on the 8th August, 2000.

I therefore directed both counsels to file supplementary submissions in regard to that issue. Both counsels have filed written submissions.

In his supplementary submissions, Mr Ninai submitted that the expression "convicted" and "conviction" mean a determination of guilt by the court. He submitted that the learned magistrate convicted the appellant on the 5th of July, 2000 when it found it guilty of the several offences. Mr Ninai relies on several authorities in support of his propositions. These are, R v Brigitta Assamakan dated 23rd July, 1962 and Re Passingan Taru [1982] PNGLR 292. He particularly relies on the decision of the Supreme Court in Akui Singgi v The State [1985] PNGLR 260. There the Supreme Court considered the meaning of the words "convicted" and "conviction". He submitted that case Supreme Court has already decided that "convicted" and "conviction" mean a determination of guilt. Thus he submits that in the present case the conviction of the appellant occurred on the 5th July, 2000 and not on the 8th August, 2000.

He submits that as the appellant’s Notice of Appeal was filed on 18th August, 2000, it was filed out of time. He therefore submits that the appeal is incompetent and ought to be dismissed.

Mr Wadau submits that a conviction of a person is a finding of guilt of the offence committed. He submitted that in law a conviction is pronounced when a person charged with an offence is found guilty. In his submissions he concedes that conviction occurs when a determination of guilt is made by the court. He refers to authorities in England and elsewhere but in my view these are not helpful nor relevant.

At this juncture it is appropriate to set out the relevant provisions of the Act. These are ss. 219 (1) and 220 (2). Section 219 (1) reads:

"219. APPEAL TO THE NATIONAL COURT

(1) Subject to Subsections (2) and (3), a person aggrieved by a conviction order or adjudication of a court, including an adjudication or order dismissing an information or complaint, may appeal to the National Court from the conviction, order or adjudication, in accordance with this part."

Section 219 (1) prescribes a right of appeal by an aggrieved person affected by a "conviction, order or adjudication" by a court.

The other relevant provision is s. 220 (2) which is in the following terms:

"220. INSTITUTION OF APPEAL.

(2) An appellant shall give notice of its intention to appeal by lodging, within one month after the day the decision is pronounced, a Notice of Appeal with the Clerk of Court by which conviction, order or adjudication was made."

Section 220 (2) prescribes the time limit within which to lodge an appeal. It prescribes that the "appellant shall give its Notice of Intention to appeal by lodging within one month after the day the decision is pronounced...".

The expression "conviction" or "convicted" is not defined in the Act. It is also not defined in the Interpretation Act (Ch. No. 2). However, these expressions have been judicially defined by the Supreme Court in Akui Singgi v The State [1985] PNGLR 260. In that case the appellant appealed from a decision of then Chief Justice accepting a nolle prosequi and discharging the accused upon an indictment. The nolle prosequi was presented after the State called two witnesses. The counsel for the defence objected to the nolle prosequi being accepted. However, the learned trial judge considered he was bound to accept it and discharged the accused from any further proceedings on the indictment under s. 527 (2) of the Criminal Code Act. The appellant (accused) then appealed against that order to the Supreme Court.

The Supreme Court considered the right of accused persons to appeal from an order of the National Court to the Supreme Court. In particular it considered criminal appeals under s. 22 of the Supreme Court Act (Ch. No. 37). After setting out the relevant provisions the court said at 261:

"We are firmly of the view that "convicted" and "conviction" in this section (that is s.22) mean a determination of guilt. Elsewhere it would be the return of a verdict of guilt by a Jury but in Papua New Guinea it is the determination of guilt by a judge. .."

In that case the Supreme Court said that "conviction" and or "convicted" means a determination of guilt.

I accept the submissions by the applicant. In my view the expression "conviction" or "convicted" has been judicially defined by the Supreme Court, in Akui Singi (supra). I am bound by that decision. It clearly demonstrates that "conviction" or "convicted" occurs on the determination of guilt by the court and not upon the passing of the sentence.

In the present case the conviction was made on the determination of the guilt of the Appellant/Respondent which occurred on the 5th July, 2000. The Appellants’ right to appeal commenced the following day, which is the 6th July, 2000. It had thirty (30) days from the 6th July, 2000 to lodge its Notice of Appeal against its conviction. The thirty day period from the 6th July, 2000 expired on the 6th August, 2000.

The Notice of Appeal was lodged on the 18th August, 2000. This was clearly outside the time prescribed by s. 220 (2) of the District Courts Act.
Accordingly I come to the conclusion that the appeal is incompetent in that it was lodged outside the time prescribed. Consequently, I uphold the application. I order that the Notice of Appeal and the Appeal be dismissed as being filed out of time.
The Applicant / Respondent shall have its Costs.

________________________________________________________________________

LAWYERS FOR THE APPLICANT : NUNAI LAWYERS
LAWYERS FOR THE RESPONDENT: YOUNG WADAU LAWYERS