Section 22 says who may appeal and on what kind of question. Section 23(1) says what the Court must find before allowing the appeal. Both matter, and they answer different questions.
Section 23(1)
Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that —
(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or
(b) the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) there was a material irregularity in the course of the trial,
and in any other case shall dismiss the appeal.
Where one of the three is established, allowing the appeal is not discretionary — subject only to the proviso in section 23(2). And where none is established, the Court shall dismiss the appeal.
Paragraph (a)
The question is whether, under all the circumstances of the case, the verdict is unsafe or unsatisfactory. It is directed at the safety of the conviction rather than at any identified legal error.
It is the ground relied on where the evidence was thin, where identification was doubtful, where the case rested on a confession of questionable reliability, or where the reasoning does not support the conclusion.
An argument that the verdict is unsafe because the evidence did not support it is, in substance, a challenge on a question of fact alone. Section 22(c) requires for such a ground either the leave of the Supreme Court or the certificate of the National Court that it is a fit case for appeal.
Where the argument is that no evidence was capable of supporting an element of the offence, that is a question of law and lies as of right under section 22(a). The distinction is worth drawing carefully in the notice of appeal.
Paragraph (b)
Typical grounds under this limb: a misdirection on the elements of the offence; evidence wrongly admitted or wrongly excluded; the burden or standard of proof misapplied; a defence available on the evidence not considered; reliance on a statutory provision that does not bear the construction given to it.
A ground under paragraph (b) lies as of right under section 22(a) if it involves a question of law alone, and under section 22(b) if it is a question of mixed fact and law. Neither requires leave.
Paragraph (c)
The word is material. Not every departure from regular procedure will do; the irregularity must be capable of affecting the trial.
Examples: proceeding in the accused’s absence without warrant; a failure of the interpretation arrangements; the accused unrepresented where representation was required; a matter decided without hearing the accused — engaging section 59 of the Constitution, whose minimum requirement is to act fairly and, in principle, to be seen to act fairly; or a breach of the protections in section 37 of the Constitution.
Section 23(2)
Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.
So an appellant who makes out an error under paragraph (b) or (c) may still lose if the Court concludes the conviction was inevitable in any event. See the proviso.
Section 23(3)
If the Supreme Court allows an appeal against conviction, it shall, subject to this Act, quash the conviction and direct a verdict of not guilty be entered.
The words subject to this Act matter. Section 27 allows the Court, in special cases, to affirm the sentence or pass such sentence in substitution where the appellant, though not properly convicted on one charge or count, has been properly convicted on some other; and to substitute a verdict of guilty of another offence of which the appellant could have been found guilty on the charge, passing a sentence not being a sentence of greater severity.
An alternative to leave
For a ground involving a question of fact alone, or one that appears to the Supreme Court to be a sufficient ground of appeal, the appellant needs either the leave of the Supreme Court or the certificate of the National Court that it is a fit case for appeal.
The certificate is worth asking for. It is sought from the trial court, which knows the case, and it removes the need for a separate leave application in the Supreme Court.
Ask at the time of conviction or sentence, while the Judge is still seised of the matter and the reasons are fresh. An application made weeks later, after the file has closed, is a harder one.
Framing the grounds
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 notice must specify with particularity the grounds and the specific reasons why the judgment is alleged to be wrong in law. — Supreme Court Rules 2012.
Each ground should identify which limb of section 23(1) is relied on, and whether leave is needed under section 22(c). See drafting grounds.
Sources
- Supreme Court Act (Chapter 37) — ss 22, 23, 27, 29
- Supreme Court Rules 2012 — O 7 rr 9, 10
- Constitution of the Independent State of Papua New Guinea — ss 37, 59
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.