Legal Index: S
The slip rule, stay pending appeal, summary judgment and sentencing — reopening a Supreme Court decision, suspending a judgment, the two elements of Order 12 Rule 38, and the principles that decide how long a sentence should be.
The slip rule
The narrow route by which the Supreme Court may reopen one of its own decisions.
Trawen v Kama [2010] PGSC 15; SC1063 (Supreme Court)
The Court set out five propositions.
(1) What it is for. A slip rule application is to correct a glaring error or mistake in a judgment or order — either clerical, an accidental omission, or a misapprehension of fact or law. The Court followed Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No 2) (2004) SC752.
(2) Not under section 155(2)(b). A slip rule application cannot be made under section 155(2)(b) of the Constitution, because that subsection concerns the Supreme Court’s inherent power to review judicial acts of the National Court, not its own decisions.
(3) Nor under section 155(4). Section 155(4) likewise does not provide an opportunity for a slip rule application to reopen a Supreme Court decision.
(4) Same bench. The application must be made before the same Supreme Court constituted by the same judge or judges who heard and determined the appeal or review.
(5) No leave required. The very nature of a slip rule application precludes the necessity for leave.
It is not a second appeal, and not a way to reargue a point that was decided against you. The threshold word is glaring.
The requirement that the same bench hear it is the practical constraint that defeats most applications: where a member of the original court has retired, died or is otherwise unavailable, the application may simply not be able to be constituted. In Trawen itself the applications were referred back to the Chief Justice to determine, including the question of costs.
Litigants sometimes attempt the same end through Constitution section 155(2)(b) or 155(4). Proposition (2) and (3) close both routes.
Stay pending appeal
Whether a judgment should be suspended while an appeal against it is heard.
McHardy v Prosec Security and Communication Ltd [2000] PGSC 31; [2000] PNGLR 279 (Supreme Court)
The Court set out to correct the way the discretion had been framed. Because the Supreme Court is the highest court of unlimited jurisdiction in the country, vested with an inherent discretionary power to do justice, and must exercise that power on proper principles — justly, reasonably, and according to natural justice to all parties — it can state what factors are relevant when the discretion is exercised.
But it was careful about the status of any such statement. The factors cannot be exhaustive. They necessarily vary from case to case and from time to time. They are guidelines to assist the Court and the parties, and are not to be treated as hard and fast pre-conditions.
The Court expressly rejected the older formulations. To hold that the test is whether there are “special” or “exceptional circumstances”, or that there is a “good reason”, or that it is an “appropriate case”, is restrictive. What matters is to articulate the factors and circumstances that may be relevant in the particular case.
McHardy is often cited as though it laid down a checklist to be worked through. That reading is the one the judgment itself warns against.
The correct approach is to identify the factors that actually bear on this judgment and this appeal — and to address why justice requires a stay, rather than reciting a formula. An applicant who argues only that there are “exceptional circumstances” is using a test the Supreme Court has said is too narrow.
Note that a stay does not follow from the appeal itself: under section 19 of the Supreme Court Act an appeal does not operate as a stay unless the court orders it.
Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082 (Supreme Court) — cites McHardy and decides a point that disposes of applications before their merits are reached.
There is no express provision in either the Supreme Court Act or the Supreme Court Rules as to the manner of applying for a stay. The proper manner is by an application using Form 4 of the Rules of Court. An application for stay made by notice of motion is incompetent and may be struck down.
The applicant must also state the nature of the application and the grounds in the application itself.
Summary judgment
Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112 (Supreme Court — Kapi DCJ, Sheehan and Brown JJ)
Summary judgment is sought under Order 12 Rule 38 of the National Court Rules 1983, which allows the Court to direct entry of judgment where there is evidence of the facts on which the claim is based, and evidence from the plaintiff or a responsible person that in their belief the defendant has no defence.
The Court identified two elements in the rule:
(a) evidence of the facts proving the essential elements of the claim; and
(b) evidence from the plaintiff or some responsible person that, in their belief, there is no defence.
On the second element the Court drew the distinction that decides most applications. Where the defendant has filed no defence and led no evidence, the plaintiff need only show a belief that there is no defence. But where a defence has been filed or evidence given by the defendant, the plaintiff must go further and show that on the facts and/or the law the defendant has no defence.
On the facts the guarantor had varied the principal contract as a director of the debtor company while fully aware of his liabilities as guarantor, and there was no issue to be tried.
Tsang also held that an application for leave to appeal against an interlocutory judgment must be filed within the 40-day limit, and that a supplementary notice of appeal filed outside it was incompetent. The case is cited for both propositions, and they are unrelated to each other.
See summary judgment and Legal Index: D on the Court’s reluctance to end a case unheard.
Sentencing — the worst-case principle
When the maximum penalty available for an offence should be imposed.
Goli Golu v The State [1979] PNGLR 653 (Supreme Court)
In sentencing for wilful murder, the maximum penalty of life imprisonment should be reserved for the most serious instances of the offence.
The Court stated the governing principle more broadly: in sentencing, the punishment awarded should be strictly proportionate to the gravity of the offence. It approved Veen v The Queen (1979) 53 ALJR 305.
Applying that, the life sentence under appeal was out of reasonable proportion to the circumstances of the crime; a long fixed-term sentence was appropriate, and an effective sentence of thirteen years’ imprisonment with hard labour was substituted.
Ure Hane v The State [1984] PGSC 4; [1984] PNGLR 105 (Supreme Court) — took the principle a step further. When considering whether the maximum should be imposed for wilful murder, the court should, so far as the law allows, categorise the “worst type” cases for which life imprisonment is reserved, and then decide whether the particular offender falls within that category.
The Court expressed the test memorably: the crime must warrant the penalty, not the offender. On the facts the trial judge had misdirected himself in finding the murder among the worst type of cases, and the sentence was manifestly excessive; fifteen years was substituted. The judgment cites Goli Golu.
Simbe v The State [1994] PGSC 18; [1994] PNGLR 38 (Supreme Court) — supplies the necessary counterweight to categorisation. The range of sentences for murder was four years to life imprisonment, and each case must be decided on its own facts. No error was found in a sentence of 14 years, or in the reasons for it, and the appeal was dismissed.
Homicide — sentencing tariffs
Manu Kovi v The State [2005] PGSC 34; SC789 (Supreme Court — Injia DCJ, Lenalia and Lay JJ)
The Court addressed the need for consistency in developing a sentencing tariff for homicide offences and set out new tariffs for wilful murder, murder and manslaughter, organised into categories reflecting the seriousness of the case and whether it was a trial or a plea.
On mitigation, the Court distinguished ordinary from special mitigating factors, noting that ordinary factors will usually carry less weight, and that in a serious crime of violence the gravity of the killing may outweigh mitigating factors and render them insignificant.
On aggravation, the Court listed the factors that recur: a deliberate intention to harm; use of a dangerous or offensive weapon; pre-planning and premeditation; the duration of the attack; multiplicity of injuries to vulnerable parts of the body; the degree of force used; group involvement; other cruel or inhuman acts; the special position of the victim in the community; and the victim’s vulnerability through age or disability.
The appellant’s own sentence of life imprisonment was held to be within range and the appeal was dismissed.
They are not in conflict, but they pull against one another, and a sentencing submission usually has to engage all three ideas.
Goli Golu supplies the ceiling: proportionality, with the maximum reserved for the worst cases. Ure Hane supplies a method: categorise the worst cases and ask whether this one belongs there. Kovi supplies the modern structure: tariff ranges by offence and category, in the interests of consistency. Simbe supplies the caution that none of this displaces the facts of the individual case.
A tariff is a guide, not a rule. A submission that treats Kovi as a tariff table to be applied mechanically, without addressing the particular facts, misuses it.
Sexual offences — sentencing
Aubuku v The State [1987] PGSC 3; [1987] PNGLR 267 (Supreme Court)
The Court adopted the sentencing principles set out by Amet J in The State v Kaudik [1987] PGNC 38; [1987] PNGLR 201, themselves drawn from R v Billam [1986] 1 WLR 349, and applied them to rape.
On the facts, a sentence of 10 years imposed on a police officer who raped a woman held in custody at a police station, threatening her with a knife, was held not excessive. The aggravating features the Court treated as significant — abuse of a position of authority, a victim in custody, and the use of a weapon — continue to shape sentencing in this area.
Sentencing law moves with the statute. Penalties for sexual offences were substantially revised by amendments to the Criminal Code after these decisions, so the principles in Aubuku survive while the ranges must be read against the current provisions.
The same caution applies to the older homicide cases: Goli Golu and Ure Hane are still cited for principle, but Kovi is the starting point for range.
See what happens at sentencing and Criminal law.