Neither the Supreme Court Act nor the Rules state a test for leave in terms. What they do is prescribe what the application must show, and that is the practical starting point.
The two substantive requirements
(b) The application must show that an appeal lies with leave.
(c) It must state the nature of the case, the questions involved and the reason why leave should be given.
Paragraph (b) is jurisdictional: does the Act permit an appeal, with leave, from this judgment on these grounds? If it does not — a consent order, or a sentence fixed by law — no amount of merit will help.
Paragraph (c) is discretionary: given that leave is available, should it be granted here?
The core of it
The consistent theme is that leave is granted where the proposed appeal raises a point that is reasonably arguable — not one that is bound to succeed, but one that is not hopeless.
That threshold appears throughout Papua New Guinea practice. In the analogous context of leave for judicial review, NTN Pty Ltd v The Board of the PTC [1987] PNGLR 70 identified whether there is an arguable case as a matter relevant to the discretion, applying Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617.
The Court is not conducting the appeal at the leave stage. It is asking whether the appeal is fit to be heard.
A leave application that reproduces the full argument invites the Court to decide the merits on incomplete material, and obscures the only question actually before it.
State the questions, show they are arguable, and say why they matter. Save the argument for the appeal.
What weighs in favour
- A clearly identified error. A specific finding, ruling or exercise of discretion, and why it is said to be wrong — not a general complaint about the outcome.
- Consequences that are substantial and hard to undo. An interlocutory ruling that effectively decides the proceeding, or that causes irreversible prejudice, is a stronger candidate than one that can be corrected later.
- A point of general importance. A question that will recur, or on which the law is unsettled, is worth the Court’s attention beyond the parties.
- No other remedy. Where the applicant cannot get relief any other way, that tells in favour.
- Promptness. An application filed early in the 40 days reads very differently from one filed on day 39.
A discretionary decision with no identified error of principle. Where the judgment below was an exercise of discretion, the applicant must confront the standard in The State and Davis v Barker [1977] PNGLR 386: the appellate court will substitute its own discretion only where the judge acted on a wrong principle, allowed extraneous or irrelevant matters to guide the decision, mistook the facts, or failed to take a relevant matter into account — and the decision was clearly wrong, or injustice might otherwise be done.
A ground that is really a disagreement about the facts. Order 7 Rule 10 makes it not sufficient to allege that a judgment is against the evidence or the weight of the evidence; the notice must specify with particularity the grounds relied on.
Delay without explanation, and a proceeding that could still be corrected below.
Leave in criminal appeals
A convicted person may appeal against conviction on a ground involving a question of fact alone with the leave of the Supreme Court, or on the certificate of the National Court that it is a fit case for appeal — and also on any ground that appears to the Supreme Court to be a sufficient ground of appeal.
That last limb is notably broad. It is not confined to law, or to fact; the question is whether the ground appears sufficient.
An appeal against sentence always requires leave under section 22(d), unless the sentence is fixed by law, in which case no appeal lies at all.
Under Order 7 Division 23, added in 2021, where a person appeals or applies for leave to seek review in criminal proceedings, the Duty Judge shall inquire whether they have a lawyer and, if not, direct the Registrar to notify the Office of the Public Solicitor. See representing yourself.
Making the strongest application
- Name the provision under which leave is available. Rule 4(b) requires it.
- Frame the grounds as questions. Rule 4(c) asks for the questions involved, and questions read as arguable in a way that assertions do not.
- Say what turns on it. Consequence is what distinguishes an appeal worth hearing from a complaint.
- File both documents if the position is unclear. Where it is arguable whether leave is needed, file the Form 7 application and the Form 8 notice within the 40 days.
- Diarise 21 days from any grant for the notice of appeal — Order 7 Rule 6.
Sources
- Supreme Court Rules 2012 — O 7 rr 3–6, 10, Div 23
- Supreme Court Act (Chapter 37) — ss 10, 14, 17, 22
- NTN Pty Ltd v The Board of the PTC [1987] PNGLR 70
- The State and Davis v Barker [1977] PNGLR 386
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.