INSIGHT INTO STATE vs TIENSTEN, KAVO and POTAPE


By BRYAN KRAMER

Part 4 - Process of Appeal

This article is the last of a four part series providing insight into the recent criminal conviction sentencing and appeal process of three Members of Parliament, Paul Tiensten, Havilo Kavo and Francis Potape. Part 1-2 covered conviction process. Part 3 explained the process of sentencing and this final part will cover the process of appeal. 

Following this post I will start publishing articles dealing with the business end of corruption that's crippling our great country.

1) How to get away with Corruption in PNG
2) How to rig an election in PNG
3) How to circumvent the Judicial System
 Each article will expose how it's done and how to end it.

So what is an Appeal?

Under our judiciary system every decision made by a Court of Law is subject to appeal or review. This process of appeal or review involves a higher court reviewing the decision of a lower court to ensure it was fair and just in the circumstances of the case. Hence decisions by the District Court are reviewed by the National Court and National Court decisions reviewed by Supreme Court. The Supreme Court being the highest court and the final court of appeal. An appeal process is available against criminal or civil dispute cases with each following a slightly different process.
So why do the Courts allow a person found guilty of a crime a second chance to appeal his conviction, only to drag on the process further??

In criminal cases once a person is convicted (found guilty) and sentenced to prison by National Court they have a right to appeal or have the decision reviewed by Supreme Court. This right to appeal is guaranteed by the Constitution.

Section 37(15) of Constitution (Protection of Law) says that "every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court."

A person's guilt is determined by a single judge and as human beings we all sometimes make mistakes whether a genuine error or by undue influence. Therefore the appeal process is to safeguard against innocent persons being wrongfully convicted or sentenced to an unjust prison term.
For this reason Supreme Court appeals are determined by no less than three Judges. This makes it more transparent where three judges are less likely to make an error, be influenced, or be in doubt about their decision. There have been several cases where National Court decisions have been overturned by the Supreme Court, however most of the time National Court rulings are upheld.
To appeal a National Court decision is no easy cause, unlike at the trial where you are challenging the Public Prosecutor's case against you, in an appeal you are challenging the Court's own decision and this is something the Court does not take lightly.

The decision whether or not appeal a Court's decision is very much determined by whether you believe you have a strong case to succeed. Otherwise it will be a waste of time and risk being ordered to pay costs of the other party including your own lawyer. There is also the risk if the Supreme Court decides to change an earlier verdict where you were acquitted to guilty or increase your sentence were it believes it was insufficient.

Although an appeal is guaranteed by the Constitution it must follow the strict legal process or risk being dismissed (thrown out).

So what is an appeal process?

When a person is being tried in the criminal court they are referred to as "Defendant" (defending their innocence) During the process of appeal they are referred to as "Appellant."
When filing an appeal the Appellant must first decide whether to appeal his conviction (guilty verdict) or sentence (prison term) or both. Where a person accepts he is guilty of the offence but believes his sentence was too harsh he may file an appeal against his sentence in an effort to have it reduced.

Where a convicted person believes he was wrongfully convicted he will appeal the conviction. He needn't worry about appealing his sentence because without a conviction there can be no sentence, that is to say if your found innocent and your conviction overturned then you can't be imprisoned and needn't worry about appealing your sentence. However most will appeal both, conviction and sentence in that if they cannot overturn their conviction then there is a chance to at least convince the Court to reduce their sentence.

So what grounds can you file an appeal against a conviction?

Appealing or challenging a conviction is proving that there is an error on the face of the record or error of judgement by the National Court Trial Judge.
Section 22 of Supreme Court Act states appeals against criminal conviction on grounds that involve:
(1) points of law; where you believe the Trial Judge misinterpreted the law or applied the wrong principle of law against you.
(2) points of mixed fact and law; where you believe Trial Judge applied the wrong facts to the law to find you guilty.
(3) A question of fact; relate only to the facts alone where you believe the Court made an error in finding of the facts. Appeals on grounds against facts alone require leave (permission) from the Supreme Court.
Points of fact relate to whether the National Court judge took into account matters which it should not have taken into account; (bad evidence) or failed to take into account matters which it should have taken into account (ignored good evidence) or clearly given not enough weight or too much weight to a matter it properly took into account (gave preference to bad evidence over good evidence).
So what are grounds to appeal against a Sentence?

To appeal against National Court sentence you are challenging the trial judge’s discretionary powers to determine the appropriate sentence. To prove this you must demonstrate that when compared to other similar cases the sentences in those cases were significantly less. Or when sentencing the Judge failed to take into consideration important facts or took into consideration facts he shouldn't have that he may have relied on when determining your sentence.

So is there a time-limit for filing an Appeal?

Yes. An appeal must be filed within 40 days of the judgement by National Court. If you are appealing your conviction you must file a Notice of appeal within 40 days of the date the National Court hands down your conviction. The notice should state the grounds for the appeal, whether on points of law or mixed fact and law or facts alone.

An appeal against a sentence must be filed within 40 days of the date of the sentence was handed down. The process is slightly different where you must first obtain leave (permission) from the Court to justify that you have an arguable (reasonable) case to challenge your sentence. This process involves filing an Application for Leave to Appeal a Sentence. A single Supreme Court judge Court will first hear your application and review your reasons to determine whether they will grant you permission to appeal it or dismiss your application for being a waste of the Courts time. If leave is granted then it will be required to file a Notice to Appeal a Sentence.

If the event you won't be able to file a notice in time because you are waiting on documents then you may file for an extension of time provided its filed before 40 day deadline.
So what happens if you fail to file within 40 days?

If you fail to file an appeal against your conviction or sentence or seek an extension within 40 days then you must file an Application for Leave to Review. Because the Court gave you the right to appeal within 40 days if you failed to file it then you forfeit the right and have to file an Application for Leave (permission) first explaining to the Court why they should give you a second chance.
The process is slightly different in that instead of by way of Notice to Appeal its by way of Review Leave application is again heard by a single Supreme Court judge to consider whether or not to grant you leave (permission) to Review your conviction or sentence. If leave is granted you can file a Notice to Review Conviction or Sentence.

If a single judge of Supreme Court hears your leave application and refuses you leave then the last option is to invoke section 10 of Supreme Court Act and to have your leave application heard by Supreme Court three man bench who will determine whether you should have been allowed leave; failing that your appeal case is over.

All three MP's were convicted and sentenced by the National Court and all three filed an appeal in the Supreme Court against their conviction and sentence within 40 days deadline.
Paul Tiensten's appeal was dismissed while Kavo and Potape's appeals are still to be heard and determined.

Before an appeal is heard by the three man bench it will first pass through a number of preliminary or administrative hearings preparing it for substantive (main) hearing.

The first hearing is referred to as the Directional Hearing which is before a single Supreme Court Judge. At the hearing the Court will review the Notice of Appeal and ensure the process was properly followed. The Court will give directions to parties to prepare their case and ensure that relevant court documents complied in an "Appeal Book" are filed and served on each party including the Court. Such documents will include copies of the National Court judgement, copies of the evidence heard at the trial etc.

At the preliminary hearings the other party being Public Prosecutor may also make an application to the Court to dismiss your appeal if it believes it is incompetent; lacking sufficient grounds or failed to follow the correct procedure (filed out of time etc). This is done by filing a Notice of Objection to Competency.

Once an Appeal has passed all the administrative processes surviving any competency challenge the Supreme Court will list it for substantive (main) hearing before three Supreme Court judges.
I explained in my previous articles to convict someone of misappropriation the State (Public Prosecutor) must prove each and every element of the offence to the criminal standard of proof being beyond reasonable doubt. The elements of an offence relate to points of law and where the technicalities of law lie. To sustain a conviction every element must be proven beyond reasonable doubt otherwise the charge will fail or be overturned by Supreme Court. This explains where a person gets off on a technicality when one of the elements are not proven or in doubt.
For the offence of Misappropriation there are three main elements.

Where a person;

(1) "dishonestly applies "
(2) "property including funds belonging to another under his possession or control"
(3) "to his use or the use of another person"

In Tiensten's case he appealed his conviction relying on both points of mixed facts and law. His lawyer Greg Sheppard argued that the National Court Judge erred in law finding that Teinsten dishonesty applied funds under his control to his use or another.

In that the footnote by Paul Tiensten to pay Travel Air owned by Eremas Wartoto, was not a direction and could not amount to the charge of dishonest application of the money. He argued it would be rather a recommendation, request or a consent from the political head for section 32 officers, being the Acting Secretary for National Planning, who as the departmental head, has the financial powers to consider and make such payments, which they did. He argued Tiensten was wrongly charged with dishonest application of funds he did not apply.

In the end Supreme Court upheld the National Court's conviction and sentence against Tiensten as being satisfactory.
Kavo is also appealing his conviction on points of mix facts and law. His lawyer is contesting that the Trial Judge made an error in law on the element of "dishonestly applied." In that it was not a conclusive finding of fact that Kavo acted dishonestly or had a fraudulent intent to apply the funds of K131,338 that was owed to him. In that Kavo was entitled to the funds but took it from the wrong basket.

The National Court Trial Judge found that Kavo paid himself from K10m trust funds which was not intended to be used to pay his allowances. Therefore he ought to have known by doing so was dishonest thus finding him guilty of misappropriation.

After Kavo filed his appeal he also filed an urgent application to be granted bail pending the determination of his appeal by the Supreme Court. While many didn't agree, being granted bail is a Constitutional right, again to ensure innocent people aren't wrongfully imprisoned and allowed out on bail pending their substantive appeal.

Chief Justice Salmo Inja heard Kavo's bail application and granted him bail on the grounds had a good prospect of success of his appeal and secondly the likely delay in his appeal being determined.
Kavo's directional hearing was heard this month (February) with the substantive hearing in April 2015. Following a substantive hearing the Supreme Court may take between two to three months to hand down its decision, while other cases have taken up to six to nine months. So Kavo's appeal may not be determined until June 2015.

Francis Potape also recently filed an urgent application for bail, however Supreme Court refused him bail and he remains in prison pending his substantive appeal.

If a Supreme Court finds that the trial judge erred in law or a miscarriage of justice it may in the circumstance quash (overturn) a conviction or order a re-trial of the whole case.
If you have any further queries in relation to the appeal process or note any points that aren't factually correct please do not hesitate to comment below.

Follow Bryan Kramer on Facebook