Section 9 is short and unusually protective. It puts the appellant’s presence at the centre of a criminal appeal and makes the appellant, not the Court, the person who decides whether to waive it.
The provision
Except with the consent of the appellant, the hearing of an appeal to the Supreme Court 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 and the Court orders him to be removed and the hearing of the appeal to continue in his absence.
It applies to an appellant in custody. The mischief addressed is a person who cannot get to court because they are detained.
Consent is a complete answer. An appellant may consent to the appeal proceeding in their absence, and many do — particularly where the appeal turns on a point of law and counsel is instructed.
The only other exception is disruptive conduct, and the test is high: conduct rendering the continuance of the proceedings in his presence impracticable, followed by an order of the Court for removal.
Waiving the right
Consent is the appellant’s to give. Where counsel proposes to proceed in the client’s absence, the client should be told what the hearing will involve, that they need not consent, and what the consequence of consenting is.
Record it — in writing, or on the transcript at the outset of the hearing. A consent that cannot be demonstrated is a difficulty for everyone if a question later arises.
Transport from a corrective institution to Waigani is not always straightforward, and a hearing may otherwise be adjourned. Under Order 13 Rule 12(3) the hearing of a matter shall proceed on the date and time fixed in the Hearing List, and an adjournment requires sufficient cause, in writing, on affidavit, filed 3 clear days before — Order 13 Rule 13.
Where the appeal is on a point of law and counsel is fully instructed, consenting may be the practical choice.
Section 31(2)
The expenses of the appearance of an appellant, when in custody, on the hearing of his appeal or on any proceedings preliminary or incidental to the appeal shall be paid out of the Consolidated Revenue Fund to an amount allowed by the Court, subject to any provision as to rates and scales made by the Rules of Court.
The same subsection covers the expenses of witnesses attending on the Court’s order and of examinations or references under section 8(1)(d).
Section 31(1): on the hearing and determination of an appeal, no costs shall be allowed to either side.
Getting the appellant there
Where proceedings under the Rules are pending, the court or a Judge may, subject to the Act, make such orders as are considered necessary for the custody or release on bail or otherwise of a person in custody; the custody, preservation and production of exhibits or other property; the suspension or payment of any fine; and the suspension or variation of any order relating to restitution of property. — Supreme Court Rules 2012.
Section 5(1)(e) also allows an order admitting an appellant to bail to be made by a single Judge, and by section 5(2) such an order shall be deemed to be a direction or order of the Supreme Court.
Where production is needed, raise it at the Directions Hearing under Order 13 Rule 8 rather than assuming arrangements will be made.
If you are on bail
An appellant at liberty is not within the terms of section 9, and is expected to attend in the ordinary way.
Attendance still matters. Order 13 Rule 12(5) allows the Court at the hearing to summarily hear and determine any matter where the appellant fails to comply with directions issued at a Directions Hearing or Status Conference, and Rule 12(6) allows a party’s application to summarily dismiss for failure to comply with directions.
Where attendance is genuinely impossible, apply to adjourn under Order 13 Rule 13 — in writing, on affidavit, to the bench, 3 clear days before the date — or instruct counsel and, if in custody, consider consenting under section 9.
Order 7 Rule 62
(1) Where a person appeals or applies for leave to seek review in any criminal proceedings, the Duty Judge shall in each case inquire as to whether the appellant or applicant has a lawyer.
(2) If there is no lawyer, the Duty Judge shall direct the Registrar to notify the Office of the Public Solicitor that at the next mention a senior lawyer from the Office of the Public Solicitor is required to appear and notify the Court whether the Public Solicitor will provide legal aid, advice and assistance.
(3) The Duty Judge shall also make a preliminary assessment of the case and consider whether it would be appropriate to give a direction to the Public Solicitor under section 177(2)(b) of the Constitution.
Rule 62 does not wait for the appellant to ask. It requires the Duty Judge to inquire in each case, and to set the process in motion where there is no lawyer.
An unrepresented appellant in custody should say so at the first mention. See appearing in person.
Sources
- Supreme Court Act (Chapter 37) — ss 5, 8, 9, 31, 32
- Supreme Court Rules 2012 — O 7 r 62; O 11 r 8; O 13 rr 8, 12, 13
- Constitution of the Independent State of Papua New Guinea — s 177(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.