“The proviso” is the name practitioners give to section 23(2). It sits behind section 23(1) and can defeat an appeal in which the appellant has made out a ground.
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.
Section 23(1) opens with subject to Subsection (2), and then provides that the Court shall allow the appeal if it thinks the verdict is unsafe or unsatisfactory, that there was a wrong decision on any question of law, or that there was a material irregularity in the course of the trial.
The proviso qualifies that obligation. Establishing a ground creates an entitlement to have the appeal allowed — unless the Court is satisfied that no miscarriage of justice actually occurred.
Three phrases that carry the work
“May dismiss” — the proviso is permissive. Even where no miscarriage occurred, the Court is not obliged to dismiss.
“Considers” — a positive state of satisfaction is required. It is not enough that the Court is unsure whether the error mattered.
“Actually occurred” — the word actually directs attention to what happened in the case, not to what might in theory have happened. It is a real-world inquiry into the effect of the error on this trial.
The typical case
The proviso is applied where the error is real but could not have changed the result. Evidence wrongly admitted where the remaining evidence was overwhelming. A misdirection on an issue that did not arise on the facts as found. An irregularity in procedure that caused no unfairness in the event.
It is not applied where the error goes to the fairness of the trial itself. A denial of natural justice, a case the accused was never given the opportunity to answer, or a defect affecting the tribunal is not cured by a strong prosecution case — because the miscarriage lies in the process, not only in the outcome.
Where the ground made out is that the verdict is unsafe or unsatisfactory under section 23(1)(a), it is difficult to see how the Court could simultaneously consider that no miscarriage of justice has actually occurred.
In practice the proviso does its work on paragraphs (b) and (c) — a wrong decision on law, or a material irregularity.
What an appellant should address
The proviso will be argued by the respondent in any appeal where a ground looks likely to succeed. An appellant should deal with it in chief.
Show the error was capable of affecting the verdict. Identify what the tribunal of fact would have had to consider without the error, and why the conclusion is not inevitable.
Attack the strength of the remaining case. The proviso depends on the residue of the evidence being sufficient. Where the impugned evidence was central, say so with reference to the reasons.
Where the error is procedural, characterise it as going to fairness — engaging section 37 or section 59 of the Constitution, whose minimum requirement is to act fairly and, in principle, to be seen to act fairly.
Point to the standard. The Court must consider that no miscarriage actually occurred. Doubt operates against applying the proviso.
Relying on the proviso
A respondent relying on section 23(2) should say so in the written submissions filed under Order 11 Rule 13 of the Supreme Court Rules 2012, and support it with references to the appeal book by page and line as Rule 14(1) requires.
An assertion that the case was overwhelming, unsupported by references to the evidence, is not an argument the Court can act on.
Where it does not apply
Sentence appeals. Section 23(2) is expressed to apply to the appeal in the context of section 23(1), which governs appeals against conviction. Section 23(4) deals with sentence appeals separately and has no equivalent proviso: if the Court is of opinion that another sentence is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution.
Public Prosecutor appeals. Section 24(2) gives the Court a discretion to vary the sentence and impose such sentence as it thinks proper, without reference to miscarriage of justice.
References. A reference under section 26 asks for the Court’s opinion on a point of law and, by subsection (5), does not affect the trial in relation to which the reference is made or any acquittal in that trial. There is no appeal to dismiss.
Where the proviso does not save the conviction
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.
But section 27 provides for special cases: where the appellant, though not properly convicted on some charge, or on some count or part of the charge, has been properly convicted on some other, the Court may affirm the sentence or pass such sentence in substitution as it thinks proper and is warranted in law; and where the appellant could on the charge have been found guilty of some other offence and the Court is satisfied as to the facts proving that offence, it may substitute a verdict of guilty of the other offence and pass a sentence not being a sentence of greater severity.
Sources
- Supreme Court Act (Chapter 37) — ss 22, 23, 27
- Supreme Court Rules 2012 — O 11 rr 13, 14
- 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.