Everything in Supreme Court practice turns on this period. It is short, it is strict, and the power to extend it dies with it.
Section 17
Where a person desires to appeal to or to obtain leave to appeal from 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 the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.
Section 29
(1) Where a person convicted desires to appeal or to obtain leave to appeal, he shall give notice within 40 days after the date of conviction.
(2) The time may be extended at any time by the Supreme Court on application made within 40 days after the date of conviction.
(3) Where the conviction involves a sentence of death or corporal punishment — the sentence shall not be carried out until the 40 days (or any further time allowed) has expired; and if notice is given, not until the appeal is determined, or the application for leave is finally refused.
Time runs from the date of conviction, not the date of sentence. Where sentence follows conviction by some weeks, that matters.
The extension is granted by the Supreme Court under section 29(2) — though section 10(1)(b) allows the power to extend to be exercised by a Judge in the same manner as by the Court.
The words that catch people
Both sections allow an extension. Both require the application for it to be made inside the original 40 days.
So the extension is not a remedy for having missed the deadline. It is a mechanism for asking, before the deadline, for more time than the Act allows.
Once day 41 arrives without either a notice or an extension application, there is no power to extend, and the right of appeal is gone.
What the Court has held
The statutory time limit validly regulates the right to review of conviction and sentence “according to law” guaranteed by Constitution section 37(15). The right to appeal or to apply for leave to appeal is lost on failure to comply.
Section 155(4) of the Constitution, which confers an inherent jurisdiction to make such orders as are necessary to do justice, does not empower the Court to waive non-compliance. (Greville Smith and Kapi JJ dissenting.)
Section 155(2)(b), however, invests the Supreme Court with an unfettered discretionary jurisdiction to hear an appeal or an application for leave although the applicant has lost the right — to 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.
A litigant out of time does not seek an extension. That door has closed. They apply for leave to review under section 155(2)(b), on a demanding test.
See missing the deadline.
The other deadlines in an appeal
| Step | Time | Source |
|---|---|---|
| Notice of appeal, or application for leave | 40 days from judgment (or conviction) | ss 17, 29 |
| Application to extend that time | Within the same 40 days, in Form 4 | ss 17, 29(2); O 7 r 1 |
| Notice of appeal after leave granted | 21 days from the grant | O 7 r 6 |
| Cross-appeal | Within the section 17 period or extended period | O 7 r 27 |
| Adding a new ground of appeal | Not after 40 days from the judgment | O 7 r 26 |
| Objection to competency | 14 days after service | O 7 r 15 |
| Retention of exhibits by the National Court | 40 days, plus a further 40 if leave is granted | O 7 r 30 |
| Notice and affidavit for further evidence | Not later than 21 days before the hearing | O 7 r 57 |
| Respondent’s answering affidavit on further evidence | Not later than 14 days before the hearing | O 7 r 58 |
| Reference on a point of law after acquittal | 40 days after the acquittal | s 26(1)(a) |
How to protect the appeal
- Diarise the date of judgment, not the date you received the reasons, and count 40 days from it.
- Do not wait for the transcript. Order 7 Rule 1(b)(i) expressly contemplates that neither a judgment nor a transcript may be available, and accepts a summary of the decision instead.
- File within the period on the material you have. A notice can be amended by supplementary notice before the appointment to settle — but not to add a new ground after the 40 days.
- If in doubt about leave, file both documents — a Form 7 and a Form 8 — inside the period.
- If you need more time, apply before day 40, in Form 4, with a supporting affidavit deposing as to why the additional time is required.
Sources
- Supreme Court Act (Chapter 37) — ss 10, 17, 26, 29
- Supreme Court Rules 2012 — O 7 rr 1, 6, 15, 26, 27, 30, 57, 58
- Constitution — ss 37(15), 155
- 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.