Prisoners who did not appeal in time write to the Supreme Court every year asking for a review. Since 2005 those applications have been decided against a three-part test stated in a case from Kimbe.
Mark Bob v The State [2005] PGSC 11; SC808
Supreme Court, Kimbe — Salika, Cannings and Gabi JJ, 4 November 2005. SCR 76 of 2003, application for leave to seek review.
What happened
Mr Bob was convicted of attempted unlawful killing and armed robbery and sentenced to nine years. Conviction and sentence were pronounced the same day. Four days later he escaped from custody and remained at large for more than nine months. Shortly after being recaptured he applied to the Supreme Court for review of his conviction, alleging a miscarriage of justice at trial.
What was argued
Appearing for himself, Mr Bob said his trial had miscarried and asked the Court to look at the conviction despite the lapse of time. The State said he had lost his right of appeal by his own conduct, offered no proper explanation, and had shown no arguable error.
What the Court decided
1. A person convicted in the National Court who wants the conviction or sentence reviewed must either give notice of appeal within 40 days under the Supreme Court Act or apply for leave to seek review under section 155(2)(b) of the Constitution.
2. The 40-day period starts to run immediately after the date on which sentence is imposed.
3. On an application for leave under section 155(2)(b) the Court considers three criteria, all of which should support the grant of leave: (i) it is in the interests of justice; (ii) there are cogent and convincing reasons and exceptional circumstances, for example manifest substantial injustice or a case of special gravity; and (iii) there are clear legal grounds meriting a review.
4. In deciding whether there are cogent and convincing reasons, the relevant matters are the reasons for not appealing in time and the merits of the case sought to be argued. Danny Sunu v The State [1984] PNGLR 305 followed.
5. Mr Bob had spoiled his chances by escaping, staying at large for nine months, not surrendering, and applying very late. He satisfied none of the criteria. Leave refused.
Did it make new law?
Bob drew its test from Supreme Court authority: Avia Aihi v The State [1981] PNGLR 81, Danny Sunu, and the 1987 Central Banking reference. No National Court decision was affirmed. What it added was a compact, numbered formulation that a single judge can apply to the steady flow of prisoner applications, and a clear statement that the reasons for delay and the merits are both weighed under the second criterion.
Why it matters
Appeal within 40 days of sentence. The clock does not wait for written reasons, for a lawyer, or for a transfer between institutions.
Explain the delay and show an error. An application that says only “I am innocent” fails the second and third criteria. The Court looks for a concrete legal ground and a credible account of why no appeal was filed.
Conduct counts. Escaping from custody, or waiting years, will weigh heavily against the interests of justice.
What it does not decide
Bob concerns leave, not the standard applied once a review proceeds; that remains the higher-than-appeal threshold described in the Avia Aihi line and, for sentence, the Norris tests. It also does not address applicants who did appeal and lost, whose further applications are governed by Popuna v Owa (2017) SC1564.
Recent cases applying it
- Saa v The State [2023] PGSC 162; SC2518 and Nane v The State [2023] PGSC 161; SC2516 — Cannings J applied the three criteria to applications to review 25-year wilful murder sentences filed years out of time; leave refused.
- Hetinu v The State [2023] PGSC 110; SC2457 — not in the interests of justice where the applicant simply failed to seek leave within 40 days of sentence.
- Taul v The State [2023] PGSC 109; SC2456 — leave refused where an appeal had already been dismissed and no clear legal grounds were shown.
- Gum v The State [2021] PGSC 36; SC2095 and Mai v The State [2019] PGSC 61; SC1823 — Bob cited on leave to review.
Sources
- Bob v The State [2005] PGSC 11; SC808 (Salika, Cannings and Gabi JJ, 4 November 2005)
- Supreme Court Act (Chapter 37) — ss 22, 29; Constitution — s 155(2)(b)
- Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81; SCR No 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulations [1987] PGSC 4; [1987] PNGLR 433
- Saa v The State [2023] PGSC 162; SC2518; Nane v The State [2023] PGSC 161; SC2516; Hetinu v The State [2023] PGSC 110; SC2457; Taul v The State [2023] PGSC 109; SC2456; Gum v The State [2021] PGSC 36; SC2095; Mai v The State [2019] PGSC 61; SC1823
Danny Sunu v The State [1984] PNGLR 305 is cited as it appears in the judgment and was not separately opened for this brief.
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