The criminal time limit mirrors the civil one in section 17, with one important difference in the event that triggers it.
The provision
(1) Subject to Subsection (2), where a person convicted desires to appeal or to obtain leave to appeal to the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, in the manner prescribed by the Rules of Court within 40 days after the date of conviction.
(2) The time within which notice may be given may be extended at any time by the Supreme Court on application made within 40 days after the date of conviction.
The date it runs from
Section 29(1) says within 40 days after the date of conviction. In many matters conviction and sentence are weeks apart, and an appellant who counts from the date of sentence will be out of time on the conviction appeal.
Note that section 22(d) — the appeal against sentence — is also governed by section 29, which speaks only of the date of conviction. The safe course where both are challenged is to work from the conviction date for everything.
For the purposes of this Act, where a person is acquitted on the ground of unsoundness of mind which was not set up by him, he shall be deemed to have been convicted, and any order to keep him in custody shall be deemed to be a sentence.
So a person detained after such a finding is treated as convicted and sentenced, and section 29 applies to them.
Subsection (2)
The time may be extended at any time — but on application made within 40 days after the date of conviction.
The words at any time govern when the Court may make the order, not when the application may be brought. The application itself has to be made within the 40 days.
This mirrors section 17 for civil appeals, and the same discipline follows: if the 40 days will not be enough — the transcript has not arrived, counsel has not been briefed — apply before day 40, not after.
Order 7 Rule 11
Upon filing the notice of appeal, the appellant for the purposes of ss 17 and 29 of the Act shall be deemed to have given notice of appeal in the prescribed manner. — Supreme Court Rules 2012.
The rule names section 29 expressly. So an appellant who files on day 40 has complied, even if service under Rule 13 follows later.
Section 32(2) requires the officer in charge of a corrective institution, rural lock-up or police lock-up to place the Registrar’s forms and instructions at the disposal of detainees desiring to appeal, and to cause any such notice given by a detainee in his custody to be forwarded on behalf of the detainee to the Registrar.
Hand the notice over early and keep a record of the date. What happens to it afterwards is out of the appellant’s hands.
Subsection (3)
In the case of a conviction involving a sentence of death or of corporal punishment —
(a) the sentence shall not be carried out until after the expiration of 40 days, or such further time as is allowed under the section, after the date of conviction; and
(b) if notice is given in accordance with subsection (1), the sentence shall not be carried out until after the determination of the appeal, or, where an application for leave to appeal is finally refused, of the application.
Section 19 provides that an appeal does not operate as a stay. Section 29(3) creates a statutory suspension for these two sentences, operating automatically without any application.
For every other sentence, an appellant who needs the sentence or an ancillary order suspended must apply. Order 11 Rule 8 allows the court or a Judge, in pending proceedings, to make orders for the custody or release on bail or otherwise of a person in custody, the suspension or payment of any fine, and the suspension or variation of any order relating to restitution of property.
Working out the last day
Fix the conviction date from the record, not from recollection. In a matter where verdict and sentence were given on different days, the transcript or the court record settles it.
Count the day after. The period is 40 days after the date of conviction, so the conviction date itself is not counted.
Do not rely on the reasons arriving. The period runs whether or not the written reasons or transcript are available. Order 7 Rule 36(b) contemplates the appeal proceeding on the notes of evidence taken by the primary Judge certified by his Associate where no transcript exists.
Diarise day 30. If an extension is going to be needed, the application must be made within the 40 days — and an application prepared in the last two days is one that may not be filed in time.
Out of time
An appellant past the 40 days who did not apply for an extension inside them has lost the right of appeal. The remaining possibility is an application for review under section 155(2)(b) of the Constitution — the jurisdiction recognised in Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81 for a person who has lost the right of appeal.
It is discretionary and exceptional. See section 155(2)(b) reviews and applying out of time.
Sources
- Supreme Court Act (Chapter 37) — ss 1(2), 17, 19, 22, 29, 32
- Supreme Court Rules 2012 — O 7 rr 11, 13; O 11 r 8
- Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81
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.