Where the 40 days has gone, there is no extension to seek. The application is for leave to review, and it is a different animal from an appeal.
What must be shown
Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81: the discretion under Constitution section 155(2)(b) should be exercised only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, the onus being upon the applicant.
Two alternative gateways, then: manifest substantial injustice, or special gravity. An applicant should identify which is relied on, and may rely on both.
The lower threshold in Application by Herman Joseph Leahy [2006] PGSC 21; SC855 applies instead: an important point of law to be determined, and not without merit.
Be clear at the outset which situation you are in, because the two attract different tests. See what leave for review requires.
Three things the application must do
1. Explain the delay. Period by period, from the date of judgment or conviction to the date of the application. Unexplained gaps are fatal to a discretionary application.
2. Establish the exceptional circumstance. Why this case is not simply a case in which someone was late — what makes the injustice manifest, or the case grave.
3. Show the substantive point. The Court will not exercise the discretion for a hopeless case. Identify the error clearly.
An application that opens with the errors below, and deals with the delay in a closing paragraph, reads as though the applicant does not appreciate what is being asked. The Court is being asked to exercise an exceptional jurisdiction; the reason it should do so comes first.
What explains delay
- Custody. An applicant held in a corrective institution, without access to advice or to the Registry, is in a materially different position from one at liberty.
- Incapacity. Illness or injury, particularly where the proceeding concerned the very conduct that caused it.
- Remoteness. Distance from a registry, with no practical means of filing.
- Not knowing of the decision. Where the applicant was absent and was not told.
- A lawyer’s failure. Evidence is needed — what was instructed, and what was not done.
- Steps actually taken. Letters, requests for transcript, approaches to the Public Solicitor.
“I did not know about the 40 days” carries little weight on its own. Nor does unexplained inactivity, nor instructing a lawyer late without a reason for it.
Delay after discovering the problem tells particularly strongly against an applicant. An application brought promptly once the position was understood is in a far better position than one brought a year later.
The mechanics
Review of a National Court decision is governed by Order 5 of the Supreme Court Rules 2012 — Division 1 for general review, Division 2 for election petition reviews.
Order 11 applies to all matters brought under the Rules unless a contrary intention appears — so the requirements as to notice of appearance, address for service, service and written submissions all apply.
Where the manner or form of a step is not prescribed, Order 11 Rule 9 allows an application to a Judge for directions. Use it rather than improvising: in Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082 an application made by notice of motion where the Rules did not provide for it was held liable to be struck down as incompetent.
Drafting the grounds
Each argument must be (a) raised in one or more grounds of review; (b) raised in the National Court; and (c) a proper review point.
So the grounds must be pleaded, not merely argued; and for each, identify where it was raised below. A point that was never taken in the National Court will need separate justification.
Although Order 7 Rule 10 is framed for appeals, the same discipline applies. It is not sufficient to allege that a judgment is against the evidence or the weight of the evidence, or that it is wrong in law; the specific reasons must be given. A review application drafted in generalities gives the Court nothing to act on.
If it is a criminal matter and you have no lawyer
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.
If there is none, the Duty Judge shall direct the Registrar to notify the Office of the Public Solicitor that at the next mention a senior lawyer is required to appear and state whether legal aid will be provided. The Duty Judge shall also make a preliminary assessment and consider a direction under Constitution section 177(2)(b).
This applies to review applications, not only appeals. See representing yourself.
Sources
- Constitution — ss 155(2)(b), 155(4), 177(2)(b)
- Supreme Court Rules 2012 — O 5; O 7 r 10, Div 23; O 11 rr 1, 9
- Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81
- Application by Herman Joseph Leahy [2006] PGSC 21; SC855
- Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082
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.