Miss an appeal deadline in the National Court and the right of appeal is gone. What is left is a discretion, and this is the case that defined it.
Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81; SC195
Supreme Court, Waigani — Kidu CJ, Kearney DCJ, Greville Smith, Andrew and Kapi JJ, 27 March 1981. Five judges, on a question of jurisdiction.
What happened
Avia Aihi was convicted of wilful murder and sentenced to life imprisonment. She wanted to challenge the sentence, but by the time her application reached the Court the 40-day period for appealing under section 27 of the Supreme Court Act 1975 had long expired. More than 14 months had passed by the time the second hearing took place.
The Court had to decide a preliminary question: did it have any jurisdiction to hear her at all?
What was argued
Three constitutional provisions were in play. Section 37(15) guarantees a person convicted of an offence the right to have the conviction and sentence “reviewed by a higher court or tribunal according to law”. Section 155(4) gives the Supreme Court an inherent power to make such orders as are necessary to do justice. Section 155(2)(b) gives it an inherent power to review all judicial acts of the National Court. The applicant said one or other of these overrode the statutory time limit.
What the Court decided
1. Section 27 of the Supreme Court Act, requiring notice within 40 days, validly regulates the right to review of sentence “according to law” guaranteed by section 37(15). “According to law” refers to the whole body of law, statute included.
2. The right to appeal, or to apply for leave, is lost on failure to comply with section 27.
3. Section 155(4) does not empower the Court to waive non-compliance with the time limit.
4. (Greville Smith and Kapi JJ dissenting.) Section 155(2)(b) nevertheless invests the Court with an unfettered discretionary jurisdiction to hear an appeal or an application for leave although the right to appeal has been lost. That discretion is to be exercised only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity. The onus is on the applicant.
The majority held that section 155(2)(c), which gives the Court “such other jurisdiction and powers as are conferred on it by this Constitution or any other law”, is a separate and distinct grant from section 155(2)(b). And the Court found no distinction between “appeal” and “review” as those words are used in section 37(15) and (16).
What happened next
The jurisdictional ruling produced two more decisions. In Avia Aihi (No 2) [1982] PNGLR 44 the majority held that an applicant invoking section 155(2)(b) must show convincing reasons, and on a late application against sentence must both explain the delay and show legal grounds that would merit an appeal. In Avia Aihi (No 3) [1982] PNGLR 92 the Court reached the merits and upheld the life sentence, holding that proportionality governs life imprisonment, which is reserved for the worst type of case, but that the law does not confine it to “dangerous” offenders.
Did it make new law?
Yes. This was original constitutional interpretation, not the affirmation of a National Court ruling. The Court distinguished its own earlier decisions in Saki v The State [1980] PNGLR 33 and Evertz v The State [1979] PNGLR 174. The result was a jurisdiction that did not exist in that form before: review under section 155(2)(b) for a person who has lost the right of appeal. Order 5 of the Supreme Court Rules 2012 now gives that jurisdiction its procedure.
Why it matters
The 40 days are real. The Court cannot use section 155(4) to excuse a late appeal, and a late appeal is incompetent.
Review is a discretion, not a second appeal. The applicant must show exceptional circumstances, manifest substantial injustice or special gravity, and, after No 2, a satisfactory explanation for the delay together with arguable legal grounds.
Because the jurisdiction is discretionary, the threshold is higher than for an appeal under section 22 of the Supreme Court Act. Recent decisions describe the test as showing cogent and convincing reasons and clear legal grounds before the Court will review.
What it does not decide
Avia Aihi does not make review available whenever an appeal would have been, and it does not dispense with the need to show error in the decision under review. It concerned a criminal sentence: the extension of section 155(2)(b) review to civil matters and to election petitions came in later cases.
Recent cases applying it
- Awas Junior v The State [2026] PGSC 93; SC2927 — described Avia Aihi as the “foundational authority”; exceptional circumstances shown, review upheld and 36 years substituted in a sorcery-accusation killing.
- Api v The State [2026] PGSC 80; SC2924 — adopted the Avia Aihi tests as restated in Neora; review of a 20-year murder sentence.
- Teperi v The State [2026] PGSC 73; SC2915 — “followed” Avia Aihi; the threshold is higher than an ordinary appeal, but cogent reasons were shown and a wilful murder conviction was set aside for want of proof of the cause of death.
- Neora v The State [2026] PGSC 72; SC2914 — the applicant must show cogent and convincing reasons and exceptional circumstances; review of a 23-year murder sentence dismissed.
Sources
- Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81 (Kidu CJ, Kearney DCJ, Greville Smith, Andrew and Kapi JJ, 27 March 1981)
- Avia Aihi v The State (No 2) [1982] PGSC 8; [1982] PNGLR 44
- Avia Aihi v The State (No 3) [1982] PGSC 9; [1982] PNGLR 92
- Constitution — ss 37(15), 37(16), 155(2)(b), 155(2)(c), 155(4)
- Supreme Court Act (Chapter 37) — ss 17, 22; Supreme Court Rules 2012, Order 5
- Awas Junior v The State [2026] PGSC 93; SC2927; Api v The State [2026] PGSC 80; SC2924; Teperi v The State [2026] PGSC 73; SC2915; Neora v The State [2026] PGSC 72; SC2914
The judgment refers to section 27 of the Supreme Court Act 1975. The 40-day requirement now appears as section 17 of the Supreme Court Act (Chapter 37).
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