SC2329

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP NO. 5 OF 2022

PHILIP KAMAN
Applicant

-V-

THE STATE
Respondent

Waigani: Manuhu J, Kariko J, Murray J
2022: 22nd November & 13th December

PRACTICE & PROCEDURE – application for review under Section 155(4) Constitution – inherent power of the Supreme Court – application to review decision of Supreme Court dismissing an appeal against conviction and sentence– application following dismissal of slip application – Supreme Court cannot review final decision of another Supreme Court – abuse of the process – application incompetent

The applicant appealed to the Supreme Court against his conviction and sentence by the National Court on a charge of misappropriation. The appeal was dismissed, and so too a slip application that he filed thereafter. Still aggrieved by the decision dismissing his appeal, the applicant sought a review of that decision pursuant to s 155(4) of the Constitution. 

Held:

(1)	A dismissal of an appeal by the Supreme Court is a final determination and cannot be appealed against or reviewed except by way of a “slip” application; Popuna v Owa (2017) SC1564 referred to. 

(2)	Section 155(4) of the Constitution does not grant jurisdiction to a differently constituted Supreme Court to review the final decision of another Supreme Court; SCR No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 17 and Application by Joseph Kintau (2011) SC1125 referred to.

(3)	The application was dismissed as incompetent.

Cases Cited:

Amet v Yama [2010] PNGLR 87
Application by Joseph Kintau (2011) SC1125
Avia Aihi v The State (No.1) [1981] PNGLR 81
Avia Aihi v The State (No. 2) [1982] PNGLR 44 
David Kaya and Philip Kaman v The State (2020) SC2026
Kaman v State (2022) SC2242
Merriam v The State [2000] PNGLR 10
Popuna v Owa (2017) SC1564 
SCR No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 17
Tai v ANZ Banking Group (PNG) Ltd (2018) SC1681
Telikom (PNG) Ltd v Kila Rava (2018) SC1694 
Waghi Savings and Loan Society Ltd v Bank South Pacific Ltd (1980) SC185
William Powi (Acting Administrator of SHP) v Southern Highlands Provincial Government (2006) SC844

Legislation:

Constitution

Counsel:

The applicant in person
Mr D Kuvi, for the Respondent

APPLICATION

This is an application for review of a final decision of the Supreme Court. 

13th December, 2022

1.	BY THE COURT: Philip Kaman has applied to this court for review of the decision of the Supreme Court (Batari J, Mogish J, Berrigan J) on 19 October 2020 which dismissed his appeal against conviction and sentence by the National Court on a charge of misappropriation. See David Kaya and Philip Kaman v The State (2020) SC2026.

2.	Following the dismissal of his appeal, the applicant filed a slip rule application, but he was refused leave in respect to that. See Kaman v State (2022) SC2242, Batari J.

3.	He remained aggrieved by the decision dismissing the appeal, and he filed this application seeking a review of that decision. 

THE APPLICATION

4.	The applicant pleads these main relief (with emphasis added):

1.1	………..

1.2	………. the applicant seeks a Declaratory Order pursuant to Section 155(4) of the Constitution that the decision of the appellate Court dated 19th October 2020 is unsafe and unsatisfactory amounting to a miscarriage of justice and is therefore set-aside.

1.3	Alternatively, the applicant seeks a Declaratory Order pursuant to Section 155 (4) of the Constitution that the decision of the appellate Court dated 19th October 2020 is unsafe and unsatisfactory for the purposes of Section 23(1)(a) of the Supreme Court Act and is therefore set aside.

5.	That is, the applicant seeks a review under s 155(4) of the Constitution of the decision dismissing his appeal, and for declaratory orders to be made that the decision was unsafe and unsatisfactory; a miscarriage of justice; and that it be quashed.   

COMPETENCY 

6.	A proceeding is competent if the jurisdiction of the court has been correctly engaged by the party initiating the proceeding: Waghi Savings and Loan Society Ltd v Bank South Pacific Ltd (1980) SC185. 

7.	In the exercise of its inherent powers, the court may at any stage of a proceeding, question whether its jurisdiction has been validly invoked (Amet v Yama [2010] PNGLR 87).

8.	At the commencement of submissions, the applicant was asked to confirm the jurisdictional basis for the application, and we heard from parties on the issue. 

SUBMISSIONS

9.	Mr Kaman cited s 155(4) of the Constitution as the basis for his application. He acknowledged that he had exhausted his right of appeal and accepted that he could not rely on s 155(2)(b) of the Constitution for the review sought. However, he still maintained he had been done an injustice by the decision of 19 October 2020 and submitted that his grievance could be addressed by this court exercising its inherent power pursuant to s 155(4). 

10.	Mr Kaman claimed that the Supreme Court wrongly denied him the right to be heard on a critical ground of his appeal, and this injustice needed to be corrected through the present application. To support this contention, Mr Kaman relied on several case authorities to submit that:  

•	There exists “cogent and convincing reasons and exceptional circumstances” to allow him the review (Avia Aihi v The State (No. 2) [1982] PNGLR 44 and Merriam v The State [2000] PNGLR 10); and
 
•	The “interest of justice” favours the review (Aihi v The State (No. 2) (supra) and Merriam v The State (supra); and 

•	He will suffer “much damage and prejudice” which justifies the review sought (William Powi (Acting Administrator of SHP) v Southern Highlands Provincial Government (2006) SC844). 

11.	Mr Kuvi for the respondent argued that the present application is unprecedented and not supported by the law. Furthermore, the applicant had exhausted his right of appeal under the law, and in the circumstances, the application must be considered frivolous and vexatious, and an abuse of the process of the court.  
	
CONSTITUTION (s 155)

12.	The National Judicial System is described by s 155 of the Constitution to consist of the Supreme Court, the National Court, and other courts established under s 172 (establishment of other courts).

13.	Both s 155(2) and s 155(4) deal with the Supreme Court and they provide:

(2)	The Supreme Court -
(a)	is the final court of appeal; and
(b)	has an inherent power to review all judicial acts of the National Court; and
(c)	has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.
…….
(4)	Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
	[Emphasis added]

CONSIDERATION 

14.	As noted earlier, the applicant relies on the inherent power of this court under s 155(4) and not s 155(2)(b) in applying for the review. 

15.	The applicant properly conceded that he is unable to rely on s 155(2)(b). Where the Supreme Court has dismissed an appeal, summarily or on the merits, it cannot be appealed against or reviewed except by way of a “slip” application; Popuna v Owa (2017) SC1564 (Gavara-Nanu J, Kariko J, Kassman J). The court further held that an application for review under s 155(2) of an appeal already determined by the Supreme Court constitutes an abuse of the process of the court. See also Telikom (PNG) Ltd v Kila Rava (2018) SC1694 (Injia CJ, Hartshorn J, Higgins J). The court also stressed the need for finality in litigation, and indeed public interest in the administration of justice demands this. See also Tai v ANZ Banking Group (PNG) Ltd (2018) SC1681.  

16.	Important to note is that s 155(2)(a) of the Constitution plainly states that the Supreme Court is the final court of appeal.

17.	In SCR No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170, a case where a convicted offender sought a review of his conviction and sentence after his appeal was dismissed, the Supreme Court (Kapi DCJ, Los J, Sheehan J) observed that this provision prohibits any further power of review. The court, per Kapi DCJ, stated that once a person has exercised his right of appeal under the laws:

No further right is given under the Act to have the decision of the Supreme Court reviewed by any other court or tribunal. Section 155(2)(a) puts the matter beyond doubt. That is where the buck stops as far as the judicial system is concerned.
[Emphasis added]

18.	The proposition was again stressed in Application by Joseph Kintau (2011) SC1125 (Batari J, Manuhu J, Yagi J). In that case, after the applicant’s appeal to the Supreme Court from a decision of the National Court was dismissed, he filed proceedings for:	
 
(1)	a review under s 155(2)(b) of the Constitution of the appealed National Court decision; and

(2)	a review under s 155(4) of the Constitution of the Supreme Court decision that dismissed the appeal. 

19.	Not only did the court state that any further or other right of appeal was prohibited, but it further confirmed after considering case authority that where the Supreme Court has determined an appeal, a differently constituted Supreme Court has no power to review that determination using s 155(4).  

20.	In Application by Joseph Kintau (supra), the applicant, like in the present matter, sought a review under s 155(4) of a final determination of the Supreme Court. He also relied on the case of Powi v Southern Highlands Provincial Government (supra) and the proposition that: "A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer such damage or prejudice and he has no remedy available under any other law." The argument was rejected as not affecting the clear constitutional principles that the Supreme Court is the final court of appeal, and it has no jurisdiction to review its own decision which has finally determined a matter. 

21.	The court also referred to these pertinent remarks of Kapi DCJ in Willie Kili Goiya v The State (supra) regarding the application of s 155(4):

In summary, these cases establish that the first limb of s 155 (4) gives the Supreme Court and the National Court power to make orders in the nature of prerogative writs and the second limb power to make other orders which are remedial, adjectival as well as procedural in nature. In so far as power is given to make these orders in reviewing exercise of power by the courts, this supervisory jurisdiction is exercised over inferior courts. That is the nature of prerogative writs. It cannot be used by the same court to review a decision of the same level of court. 
[Emphasis added]

22.	It is settled law that s 155(4) of the Constitution does not confer primary jurisdictional power, but grants power to the courts to make orders to protect and enforce an existing primary right conferred by law, and the courts are thereby required to tailor their remedial processes to suit the particular circumstances of the case: Avia Aihi v The State (No.1) [1981] PNGLR 81.  

23.	Based on the discussed legal principles, we reject the applicant’s arguments outlined in [10] above. 

24.	It is also our view that the cases of Avia Aihi v The State (No. 2) (supra) and Merriam v The State (supra) have no relevance to the issues at hand. The facts of those cases are very different to the current. In Avia Aihi (No.2), the applicant was allowed a review under s 155(2)(b) after time lapsed for the exercise of his right to appeal. In Merriam’s case, the applicant was permitted a review under s155(2)(b) even after his appeal was determined for reason that the main prosecution witness later recanted his evidence.  

ORDER

25.	We accordingly order that this application for review be dismissed for being incompetent.  
________________________________________________________________
Applicant in-person
Office of the Public Prosecutor: Lawyers for the respondent