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Emmanual v State [2018] PGSC 12; SC1668 (3 May 2018)

SC1668

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 35 OF 2012

TONY EMMANUAL
Appellant

AND:

THE STATE
Respondent

SCRA NO. 34 of 2012

EDWARD YAU
Appellant

AND

THE STATE
Respondent

Mt Hagen: Salika DCJ, Tamate & Anis JJ
2018: 2^nd & 3^rd May

PRACTICE & PROCEDURE - Applications for leave to appeal against sentences - notice of appeal - second schedule form 1 - Order 1 rule 8(c) of the Supreme Court Rules 2012 discussed - Section 32(1) of the Supreme Court Act Chapter No. 37

PRACTICE & PROCEDURE - applications for leave to appeal against sentences and notice of appeal against conviction filed before the final decision on sentences

Case cited:

Mark Bob v. The State (2005) SC 808

Counsel:

Mr R. Pariwa, for the Appellant
Mr P. Bannister, for the Respondent

3rd May, 2018

1. BY THE COURT: The appellants are co-prisoners. They were charged and found guilty of the offence wilful murder contrary to section 299 of the Criminal Code Act Chapter No. 262 (Criminal Code). Prisoner Tony was initially sentenced to 50 years IHL and prisoner Edward was also initially sentenced to 40 years IHL. They received their first sentences on 19^th November 2012. Later and on 20^th March 2013, the National Court recalled the matter whereby reduced sentences were imposed on both prisoners. This time prisoner Tony was sentenced to 40 years IHL whilst prisoner Edward was sentenced to 30 years IHL.

2. Before this Court on 2^nd May 2018, it was noted that both prisoners had also filed separate applications for review pursuant to section 155(2)(b) of the Constitution. They were SC Rev. No. 31 of 2013 and SC Rev. No. 32 of 2013. Upon query by the Court as to which proceedings the appellants would pursue, counsel confirmed the appellants' consent and instructions to withdraw their reviews. Leave was granted and both reviews were discontinued.

3. The hearing proceeded based on the above two (2) appeals. Initially, both prisoners were unrepresented so they filled out and filed separate forms called Second Schedule Form 1. The said form is authorised under Order 1 Rule 8(c) of the Supreme Court Rules 2012 (SC Rules) to assist individuals in criminal proceedings who intend to file notices of appeal or applications for leave to appeal, in the Supreme Court. The forms are required to be distributed by the Registrar upon request under section 32(1) of the Supreme Court Act Chapter No. 32 (SC Act).

4. For prisoner Tony, his form 1 was filed on 3^rd December 2012. The form appears at page 4 of his Appeal Book. He has appealed against sentence so for this purpose the said form 1 had been regarded as an application for leave to appeal and subject to leave being granted, had also been treated and dealt with as a substantive notice of appeal. The Court has heard both submissions in relation to leave as well as in relation to the appeal and has reserved its decision to a date to be advised.

5. As for prisoner Edward, his form 1 was also filed on 3^rd December 2012. His form 1 appears at page 4 of his Appeal Book. He has appealed against both conviction and sentence. For this purpose, his form 1 had been regarded as a notice of appeal as well as, as an application for leave to appeal, in relation to his challenges on conviction and sentence. Again, this Court has heard submissions from counsel and has reserved its ruling to a date to be advised.

6. This is the Court's ruling.

Preliminary issues

7. Counsel for the defence raised a preliminary issue regarding sentences and how that may affect the appeals. We will address that now. The initial sentences the two prisoners challenge in their respective applications for leave to appeal, as stated in our opening above, were made by the National Court on 19^th November 2012. The National Court had since recalled and reconvened its sentence hearing, on 20^th March 2013. On that day, the National Court amended its decision on sentences for the two co-prisoners. For prisoner Tony, the National Court imposed a reduced sentence of 40 years IHL. As for prisoner Edward, the National Court also imposed a reduced sentence of 30 years IHL. So there were reductions of 10 years each for both prisoners for their crime of wilful murder.

8. The question asked at the appeal hearing was, where does that now leave the appeals of the two prisoners in so far as their sentences are concerned?

9. It is not disputed that both applications for leave to appeal against sentences herein, were filed to challenge the original sentences imposed by the National Court. These can simply be confirmed from the forms that the two prisoners had filled out and filed in their respective appeal books. Prisoner Tony is appealing against the original sentence decision dated 19^th November 2012 where he was sentenced to 50 years IHL. And prisoner Edward is also appealing against the original sentence decision dated 19^th November 2012 where he was sentenced to 40 years. As we know it, these sentences are no longer applicable.

10. In our view, we find that the change of circumstances, that is the variation of the sentences imposed by the National Court upon the two prisoners, has affected the standing of the two applications for leave to appeal against the sentences. We note that the two leave applications against sentences were filed well before the time the National Court had reconvened to vary its sentences upon the two prisoners, which was on 20^th March 2013. The correct approach, in our view, should have been for the two prisoners to fill out and file new form 1s under the SC Rules after the date of their final sentences, which happened on 20^th March 2013. Computation of time for appeal against their sentences, in our view, starts on 20^th March 2013 and not 19^th November 2012. See case of Mark Bob v. The State (2005) SC 808. Because this error was not corrected, both prisoners are now faced in a situation where their leave applications on sentences are based on outdated or invalid sentence date, which had happened in the future or ahead of the actual or final sentence date. They also rely on facts or events that have since passed. The obvious example is this. The challenges in their present applications for leave to appeal against sentences relate to their initial sentences, which have since been reduced by the National Court. Are they still going to challenge their sentences of 50 years and 40 years respectively? Obviously not, we would say.

11. We therefore find the two leave applications to appeal against sentences incompetent, bad and without merit and we dismiss them.

12. Prisoner Tony's appeal ends here.

Appeal against conviction

13. Prisoner Edward's notice of appeal against conviction was filed on 3^rd December 2012. The respondent herein argues whether prisoner Edward's notice of appeal was filed within the 40-day period for appeal. We will also look at that now before deliberating further.

14. We ask ourselves this. When did the time for appeal start to run for the two co-prisoners? The undisputed fact of course is that the final decision of the National Court was made on 20^th March 2013. Case law is settled that computation of time for appeal begins after the date of sentence. We refer to the Supreme Court case Mark Bob v. The State (supra). The Court held that the 40-day appeal period starts to run immediately after the date on which the sentence is imposed. The Court held that the same applies to appeals against convictions; that time is computed from the date of sentence.

15. Prisoner Edward's notice of appeal now before the Court was filed on 3^rd December 2012. The notice of appeal therefore and in our view was filed before the final decision of the National Court. It is therefore incompetent and must be dismissed. We remark that had prisoner Edward's appeal was an appeal against conviction only, we may not have reached the conclusions as we have now.

Order

16. We dismiss the entire appeal proceedings filed herein.

__________________________________________________________
Office of the Public Solicitor: Lawyers for the Applicants
Office of the Public Prosecutor: Lawyers for the Respondent