Most people convicted in the National Court are in custody by the time they think about an appeal, and many have no lawyer. The Act and the Rules are built to let them start the appeal from inside the prison, on a single form, and to have a lawyer found afterwards.
The prison’s duty
(1) The Registrar shall furnish the necessary forms and instructions in relation to notices of appeal, or notices of application for leave to appeal, in criminal proceedings to (a) any person who asks for them; and (b) officers of courts; and (c) officers in charge of corrective institutions, rural lock-ups and police lock-ups. (2) The officer in charge of a corrective institution, rural lock-up or police lock-up shall cause (a) the forms and instructions to be placed at the disposal of detainees desiring to appeal; and (b) any such notice given by a detainee in his custody to be forwarded on behalf of the detainee to the Registrar.
Order 1 Rule 8(c) of the Supreme Court Rules 2012 provides that the forms referred to in section 32(1) are those in the Second Schedule. There are two. Both are on the Supreme Court Forms page.
Second Schedule Form 1: the notice of appeal
1. Name of appellant (Apil tauna ladana) (Nem bilong man ilaik apil). 2. Offence (Oi emu kerere) (Trabel bilong yu). 3. Date convicted. 4. Place of National Court sittings (e.g. Waigani, Chimbu). 5. Sentence (Hamas kalabus yu kisim). 6. Date of sentence. 7. Set out the reason why you want to appeal (Raitim wanem yu laik apil). “I hereby give notice of appeal and notice of application for leave to appeal against the above decision on the grounds stated above. Further grounds as may be considered necessary may be added to this Notice following legal advice being given to me.” To: The Registrar, Supreme Court, PO Box 7018, Boroko. (Prisoner in person.)
The form does two things at once: it gives notice of appeal on the grounds that lie as of right under section 22(a) and (b) of the Act, and it applies for leave under section 22(c) and (d) for grounds of fact and against sentence. The prisoner’s own reasons, however brief, stop time running, and a lawyer can later add grounds by supplementary notice under Order 7 Rule 25. See the supplementary notice of appeal.
Time
Section 29(1) requires the notice of appeal or application for leave to be given within 40 days after the date of conviction, and section 29(2) allows the time to be extended only on application made within those 40 days. The notice must reach the Registrar within the period, so the prisoner should hand the form in early and keep a dated copy. Section 29(3) suspends a death sentence until the period and any appeal have run. See the time limit for a criminal appeal.
Second Schedule Form 2: if the 40 days have passed
“You can appeal against conviction or sentence to the Supreme Court if you lodge your notice of appeal within 40 days of sentence. If you are too late to lodge an appeal, and if you wish to have the Supreme Court review your conviction or sentence you must apply to a Judge for leave.” The form asks the applicant’s name, the crime, the dates, the place and the Judge, whether conviction or sentence or both is to be reviewed, why no notice of appeal was lodged within 40 days, why the application was not made until now, and why the Supreme Court should reconsider the case.
Order 5 Rule 2 provides that an application for leave to review by a prisoner who is not legally represented may be made in this form. It invokes the Court’s power under Constitution section 155(2)(b) to review the National Court where no appeal lies because the time has gone, and the two questions about delay reflect the test: a satisfactory explanation for the delay and a case with merit. See applying for review when out of time.
Getting a lawyer
Constitution section 37(4)(e) entitles a person charged with an offence to be represented by the Public Solicitor if entitled to legal aid. The directions hearing under Order 13 Rule 8 has legal representation as its first item. A prisoner who has filed Form 1 should also write to the Public Solicitor directly. See where to get help and representing yourself in the Supreme Court.
Attending the hearing
Except with the consent of the appellant, the hearing of an appeal shall not take place in the absence in custody of the appellant unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable.
The expenses of the appellant’s appearance are met from public funds under section 31(2)(b), and section 31(1) provides that no costs are awarded either way on a criminal appeal. See whether you must attend your criminal appeal.
Bail and the sentence meanwhile
Filing the notice does not suspend the sentence, but it opens the door to bail pending appeal under section 10(1)(c) of the Act and section 11 of the Bail Act, and it suspends any compensation or restitution order under section 30. See bail pending appeal and what happens to the sentence while the appeal is pending.
Sources
- Supreme Court Act (Chapter 37) — ss 9, 10, 22, 29, 30, 31, 32
- Supreme Court Rules 2012 — O 1 r 8(c); O 5 r 2; O 7 r 25; O 13 r 8; Second Schedule Forms 1 and 2
- Constitution — ss 37(4)(e), 155(2)(b)
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.