N8807
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 118 OF 2019

THE STATE

V

PAUL PARAKA

Waigani: Berrigan J
2021: 5th March and 23rd April

CRIMINAL LAW – PRACTICE AND PROCEDURE – PERMANENT STAY OF INDICTMENT - Motion to quash or permanently stay the indictment presented by the Public Prosecutor pursuant to s. 526 of the Criminal Code – Abuse of process – Power to permanently stay a prosecution an extreme remedy of last resort only to be exercised where the accused has established that it is not possible for him or her to obtain a fair trial, or where it is necessary to protect the integrity of the criminal justice system. 

CRIMINAL LAW – PRACTICE AND PROCEDURE – PERMANENT STAY OF INDICTMENT – A permanent stay of a prosecution would be very rare on the basis of delay alone – Considerations - Prejudice is required.

CRIMINAL LAW – PRACTICE AND PROCEDURE – DUPLICITY OF CHARGE - Whether or not a charge is duplicitous is a question of degree to be determined by applying common sense in deciding what is fair in the circumstances.

The accused was charged with one count of misappropriating K162m belonging to the State.  It was alleged that monies were paid to the accounts of his law firm, Paul Paraka Lawyers (PPL), through the bank accounts of eight other law firms, in payment of legal bills for services which were never provided. 

The accused raised several grounds upon which he contended that the indictment was calculated to prejudice or embarrass him in his defence to the charge, and upon which the proceedings were an abuse of process and should be permanently stayed.  He contended that he is a victim of the misuse of the criminal process motivated by jealousy and political interference.  The Solicitor General had no standing to bring the complaint.  Taskforce Sweep (TFS) was inherently unlawful and unconstitutional.  TFS and its informant had no lawful authority to undertake the investigation.  The allegations are false and the Court’s process has been deliberately and unlawfully abused by the informant.  The proceedings are administrative in nature and without merit.  The Public Prosecutor is biased and has not exercised his powers objectively and impartially in accordance with his oath of office. The accused further contended that: the proceedings should be permanently stayed on the basis of delay; the Public Prosecutor failed to comply with the requirements under s 526 of the Criminal Code, and the charge itself is defective.     

Held:

(1)	There are two broad categories of cases in which the Court has the power to permanently stay criminal proceedings for abuse of process.  The first is where the court concludes that it is not possible for the accused to obtain a fair trial.  The second is where it would be unfair to try the accused, or where a stay is necessary to protect the integrity of the criminal justice system: R v Crawley [2014] EWCA Crim 1028; see also Wartoto v The State (2015) SC1411; Jago v District Court of NSW (1989) 168 CLR 23. 

(2) 	To permanently stay criminal proceedings is an extreme remedy, only to be exercised in the most exceptional circumstances, as a last resort. There is substantial public interest in the court exercising its jurisdiction to determine whether a person charged with a criminal offence is guilty.  A permanent stay interferes with that public interest and is equivalent to conferring immunity from prosecution: see Jago v District Court of NSW (1989) 168 CLR 23; State v Wohuinangu (1991) N966; In re Namah (2018) N7194; Crawley (supra); Wartoto (supra); Thompson v Kalaut (2011) N4265.

(3)	In the first category it is necessary for the accused to establish not only that there has been an abuse but that he is prejudiced in his defence such that a fair trial is not possible, bearing in mind the power of the court to impose lesser remedies or directions to control the proceedings, for instance through the exclusion of evidence, the issuance of warnings, or the granting of adjournments: Jago; Wohuinangu; Crawley.    

(4) 	In the second category, it is not necessary for the accused to show that he could not obtain a fair trial, however, he must show that the continuance of the proceedings would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and inevitably bring it into disrepute: Crawley; Williams v Spautz [1992] HCA 34; Thompson. 
(5) 	The charges are not administrative in nature.  The accused has not established that the investigation was politically motivated or the work of rogue officers. The Solicitor General was entitled to bring a complaint.  TFS was not inherently unlawful or unconstitutional.  Its investigation was not unlawful.  The informant remained at all times a member of the police force with the power to bring criminal charges subject to the direction and control of the Police Commissioner.  There was no directive by the Police Commissioner to withdraw the charges at the District Court.  More particularly, it has not been demonstrated that the informant acted for an improper purpose or with an ulterior motive, or that he believed the charges to be false.  It has not been established that the Public Prosecutor is biased or that he has not exercised his powers objectively, impartially and in accordance with his oath of office.  The merits of the case is a matter for trial.  The accused has not established that the indictment is calculated to prejudice or embarrass him in his defence to the charge.  The accused has not established that the continuance of the proceedings would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and inevitably bring it into disrepute.  On the contrary, there is significant public interest in determining whether or not substantial State funds have been misappropriated. 

(6)	A permanent stay of a prosecution would be very rare on the basis of delay alone:  Jago v District Court of NSW (1989) 168 CLR 12, applied State v Wohuinangu (1991) N966.    

(7)	In determining this issue regard should be had to: the length of the delay; reasons given by the prosecution for the delay; the accused’s responsibility and past attitude to delay; proven or likely prejudice; and the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crimes:  Jago; Crawley.  

(8)	There was no real delay between the date of the alleged offence and the date the accused was initially charged.  The accused failed to demonstrate actual prejudice as a result of the delay on the part of the police at the committal stage.  Delay since the magistrate’s refusal to commit is a consequence of the challenges brought by the accused before the National and Supreme Courts to the presentation of the indictment and the continuance of proceedings.  The delay is not unreasonable in the circumstances.  The accused has not demonstrated that there has been unreasonable delay, nor that he has been prejudiced by any such delay such that he is unable to obtain a fair trial.

(9)	The contention that there has been non-compliance with the requirements of s 526 of the Criminal Code has been dismissed previously and is an abuse of process.

(10)	The rule against duplicity prohibits the prosecution alleging two or more offences in a single charge.  Whether or not a charge is duplicitous is a question of degree, best determined by applying common sense in deciding what is fair in the circumstances:  Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 applying DPP v Merriman [1973] AC 584; State v Solis Ima (2020) N8676.

(11)	In this case the allegation concerns a number of different acts of a similar nature, namely the dishonest application of monies belonging to the State for which no legal services were provided.  Having regard to the common and continuing nature of the acts they might fairly be regarded as forming part of the same alleged criminal transaction or enterprise.  Accordingly, it was proper to charge them in a single count alleging misappropriation, over a period of five years.   Despite that I will exercise my powers under s 558(2)(b) of the Criminal Code to order the indictment to be amended on the basis that it may facilitate the conduct of the trial.  

(12)	The motions to quash, set aside, and permanently stay the indictment are dismissed. The matter will proceed to trial. 

Cases Cited:
Papua New Guinea

Somare v. Manek; Anderson Agiru v. Electoral Commission and the State (2002) SC687
Telikom (PNG) Ltd v. Rava (2018) SC1694
Pruaitch v Manek (2019) SC1884
The State v Paraka, Decision on Presentation of Indictment (2019) N8229 
The State v Paul Paraka, Decision on Application to Disqualify (2020) N8508
The State v Paraka, Decision on Further Amended Motion No 1 to Dismiss/Set Aside/Permanently Stay/Quash Indictment (2020) N8608
Wartoto v The State (2015) SC1411 
State v Wohuinangu (1991) N966
In re Namah (2018) N7194
Thompson v Kalaut (2011) N4265 
In Special Reference Pursuant to Constitution Section 19; Section 365 of the Income Tax Act (1995) SC482
John Alex v Martin Golu [1983] PNGLR 117
The State v Popo [1987] PNGLR 286
Reference No 1 of 1977 [1977] PNGLR 362
Kalinoe v Paul Paraka Lawyers (2014) SC1366
Gelu & Manoburn v The State (2003) SC716
The State v Runny Dau (2020) N8611
In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388
Application by Herman Joseph Leahy (2006) SC855
James Marape and Peter O’Neill v Paul Paraka (2014) N5740
Ano Pala v The State (2015) SC1515 
Telikom PNG Ltd v Digicel (PNG) Ltd & Others (2008) SC906 
Anderson Agiru v The State & Ors (2002) SC687
Golu v National Executive Council (2011) N4425
Sam Koim v the State & Ors (2016) N6558
Haluya v The State (2001) N2109 
The State v Jenny Peter (2005) N2813 
Francis Potape v The State (2015) SC1613 
Nai’au Limagwe and others v The State [1976] PNGLR 382
Ano Pala v The State (2015) SC1515
The State v Painke [1976] PNGLR 210
Herman Leahy v The State (2014) N5813 
State v Solis Ima (2020) N8676 
The State v Yawijah (2019) N7767
Brian Kindi Lawi v The State [1987] PNGLR 183 

Overseas Cases

R v Crawley [2014] EWCA Crim 1028
Jago v District Court of NSW (1989) 168 CLR 23
Williams v Spautz [1992] HCA 34
Walton v Gardiner (1993) 177 CLR 378
Goldsmith v Sperrings Ltd [1977] 1 WLR 478
R v S (SP) [2006] 2 Cr. App. R 23 
Att-Gen’s Reference (No 1 of 1990) [1992] QB 630
R v Giles [2000] VSCA 121
R v McCarthy, McDonald and Isaksen (unreported, NSWCCA, 12 August 1994) 
R. v. R. [2016] 1 Cr.App.R. 20, CA
Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
DPP v Merriman [1973] AC 584
R v Radley (1974) 58 Cr App R 394

References Cited

Sections 383A, 526, 534, 558 of the Criminal Code
Sections 11, 22, 23, 37, 42, 57, 155, 197, 198 and 199 of the Constitution
Section 8(4) of the Attorney General Act

Counsel

Ms. L. Jack with Ms. S Mosoro, for the State 
Mr. P. Paraka, in person 

DECISION ON MOTIONS TO QUASH/PERMANENTLY STAY INDICTMENT (No 2)

23 April, 2021

1.	BERRIGAN J:  The accused moves the balance of his Further Amended Notice of Motion No. 1 filed on 6 October 2020 to have the Court set aside/dismiss/permanently stay or quash the indictment presented by the Public Prosecutor pursuant to s. 526 of the Criminal Code.   The motion contains 4 remaining paragraphs, 6, 7, 8 and 10.  Paragraphs 1 to 5 and 9 were dismissed by me on 23 October 2020: The State v Paraka, Decision on Further Amended Motion No 1 to Dismiss/Set Aside/Permanently Stay/Quash Indictment (2020) N8608 (Decision of Further Amended Motion No 1).  The accused also moves his Motion No. 2 filed 12 August 2020, the hearing of which was deferred pending the determination of his motion for me to recuse myself for apprehended bias, and paragraphs 1 to 5 and 9 of his Amended Motion No. 1, which the parties agreed should be dealt with first.   

2.	Following the dismissal of paragraphs 1 to 5 and 9 of the accused’s Motion No 1, the balance of objections were adjourned to 12 November 2020 at the accused’s request.  The hearing was again adjourned at the request of the accused on that day as he had realised that various parts of the affidavit material upon which he intended to rely was illegible.  Given that the matter could not be ready the following day and having regard to my circuit obligations the matter was adjourned to 9 December 2020 for hearing.  On that day the accused was certified unwell for a period and the matter adjourned to 17 February 2021.  That date was vacated due to a health issue of my own and the matter was heard at the first available date on 5 March 2021.  Since then the Court has been in various degrees of lockdown, in accordance with the Controller’s Isolation Strategy, and the Court’s own protocols in response to particular cases within the institution.  Lawyers from the Office of the State Prosecutor have attended for the first time following a lockdown on 8 April 2021.      

BACKGROUND

3.	The State alleges, in an indictment presented by the Public Prosecutor pursuant to s 526 of the Criminal Code, that between the 1st day of February 2007 and the 31st day of December 2011, Mr Paraka misappropriated K162,860,194.96 belonging to the State, contrary to s 383A of the Criminal Code.   The history and acceptance of the indictment are set out in The State v Paul Paraka, Decision on Presentation of Indictment (2019) N8229. 

4.	According to the pre-trial review statement, it is alleged that the accused owned and operated a law firm, Paul Paraka Lawyers (PPL), which was engaged by the Attorney General and the Office of the Solicitor General to act for and on behalf of the State in civil litigation.

5.	It is further alleged that on 17 October 2006 the State withdrew its instructions from PPL and instructed PPL to cease acting by Monday 20 November 2006.  PPL submitted its bill to the Solicitor General’s Office, and after checking its records it was revealed that the matters listed by PPL in its bill of costs were never briefed out to PPL. Investigations were conducted into payments to PPL by the State.  Those investigations revealed that between 2007 and 2011 a total of K162,860,194.96 was paid to PPL. The payments were made by the Department of Finance without the clearance of the Attorney General as required by law.  Financial records showed that the payments were not made directly to PPL but through the accounts of eight other law firms as follows: 

Law Firm	2007 (K)	2008 (K)	2009 (K)	2010 (K)	2011 (K)	Total Paid (K)	
Sino & Company Lawyers	14,300,000	5,452,983.97	2,050,000	2,000,000	15,608,300	39,411,283.97	
Jack Kilipi Lawyers 	-	5,902,700	2,050,000	3,000,000	12,108,300	23,061,000	
Harvey Nii Lawyers	3,000,000	-	-	7,830,610	-	10,830,610	
PKP Nominees Ltd	3,500,000	15,336,205.94	10,380,672.28	18,993,000	20,500,000	68,709,878.22	
Sam Bonner Lawyers	3,500,000	-	-	-	-	3,500,000	
Kipoi Lawyers	-	-	-	3,990,000	-	3,990,000	
Korowi Lawyers	3,000,000	3,362,422.77	-	3,995,000	-	10,357,422.77	
Yapao Lawyers	3,000,000	-	-	-	-	3,000,000	
TOTAL	30,300,000	30,054,312.68	14,480,672.28	39,808,610	48,216,600	162,860,194.96	

6.	It is alleged that the accused caused the law firms to receive the payments, remove their commission and then transfer the monies to two accounts in the name of PPL, over which the accused had control.  According to the records of the Solicitor General, neither the accused’s law firm nor any of the law firms identified provided any services during the relevant period.   The State says that the accused dishonestly applied to his own use and the use of others the total sum of K162,860,194.96 belonging to the State. 

GROUNDS
7.	The accused raised multiple grounds upon which the indictment should be quashed and/or the proceedings permanently stayed.  I do not intend to set out the grounds here.  I will consider the grounds according to the categorisation contained in the submissions filed by the accused.

8.	The accused refers to the 32 grounds as “formal defects”.    I don’t agree with that terminology.  A “formal defect” is one which by its nature is apparent on the face of the indictment.  Putting that aside, in summary, the accused contends that the indictment:

(a)	is affected by formal defects apparent on its face;
(b)	is calculated to prejudice and/or embarrass him in his defence;
(c)	should be quashed pursuant to s 558 of the Criminal Code;
(d)	should be declared null and void under ss 11, 23 and 57(3) of the Constitution; and
(e)	should be permanently stayed under ss 11, 23 and 57(3) of the Constitution for breach of his Constitutional rights.

9.	The accused’s submissions are lengthy, in support of which he has filed 11 affidavits containing voluminous material.  Essentially, there are four main areas of contention:  the lawfulness and conduct of TFS; delay; s 526 of the Criminal Code; and nature of the charge itself. 

10.	Despite clear directions, and the time allowed, the State failed to file its submissions prior to the hearing.  Mr Paraka objected to the filing of submissions in court and I refused to accept its written submissions in the circumstances.  Oral submissions were made reading from the written submissions but they were general in nature.  The State did not respond to the particular factual or legal issues raised by the accused.       

S 558 of the Criminal Code  

11.	Section 534 of the Criminal Code provides that an indictment is not open to objection by reason of certain formal defects, which are set out in sections 534(1)(a) to (d).  Furthermore, any objection to an indictment on the basis of a formal defect apparent on the face of the indictment must be taken by motion to quash the indictment before the accused pleads to it:   

FORMAL DEFECTS.

(1) An indictment is not open to objection–
(a) by reason of the designation of any person by a name of office or other descriptive title instead of by his proper name; or
(b) for omitting to state the time at which the offence was committed, unless the time is an essential element of the offence; or
(c) for stating imperfectly the time at which the offence was committed; or
(d) for stating the offence to have been committed on an impossible day, or on a day that never happened or has not yet happened.
(2) An objection to an indictment for a formal defect apparent on its face must be taken by motion to quash the indictment before the accused person pleads to the indictment.

12.	Section 558 of the Criminal Code provides that a person may, before pleading, apply to quash an indictment on the basis it is formally defective, or because it is calculated to prejudice or embarrass him in his defence to the charge: 

MOTION TO QUASH INDICTMENT.

(1) The accused person may, before pleading, apply to the court to quash the indictment on the ground that–
(a) it is calculated to prejudice or embarrass him in his defence to the charge; or
(b) it is formally defective.
(2) On a motion under Subsection (1), the court may–
(a) quash the indictment; or
(b) order it to be amended in such manner as the court thinks just; or
(c) refuse the motion.

Abuse of Process and Permanent Stay   
13.	The accused submits that the proceedings are an abuse of process on various grounds and should be permanently stayed.  

14.	It is a basic principle of our system of criminal justice that it is for the prosecution, not the Court to decide whether a prosecution should be commenced, and if commenced, whether it should be continued.  This is reflected in the powers given to police and the Public Prosecutor under the Constitution.

15.	The Court has an overriding duty, however, to do all things necessary to ensure the proper administration of justice.

16.	This duty gives rise to an inherent power in the National and Supreme Court to intervene at any stage of a proceeding to prevent an abuse of their process. Somare v. Manek; Anderson Agiru v. Electoral Commission and the State (2002) SC687; Telikom (PNG) Ltd v. Rava (2018) SC1694.  The Court considered the power in detail in Pruaitch v Manek (2019) SC1884.

“[T]he court’s inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity.”

17.	The power is particularly important in the context of criminal proceedings to ensure an accused’s fair trial rights, protect the interests of justice, and safeguard public confidence in the administration of justice: Decision on Presentation of Indictment (2019) N8229 at [50].

18.	In Wartoto v The State (2015) SC1411 at [87] et seq Kirriwom J summarised the effect of a number of cases in other jurisdictions in which prosecutions have been stayed to demonstrate the nature and purpose of the power in a criminal context:

“In all these Australian and English cases, the discussions are centred around the exercise of the court's inherent powers to protect its processes from abuse by staying of criminal prosecutions where injustices will result with the continuation of such prosecutions. The case authorities referred to examined different circumstances that exposed the court system and its processes to possible abuse for ulterior purposes or motives and discussion also centred on whether there ought to be an open or restricted policy on the use of this exceptional power of the court to stop a prosecution on the basis of abuse of process.
In Walton v Gardiner (supra), the issue that went from the Court of Appeal to the High Court was whether long delay in the prosecution can amount to injustice and an abuse of process.
In Williams v Spautz (supra), the issue before the Court for determination was whether the court process was being used for ulterior purpose and public interest consideration in the administration of justice.
In Rogers v R (supra) the issue before the court was whether confessions ruled involuntary and inadmissible at the trial and sought to be tendered as evidence at a later trial for other offences amounted to unfair prosecution and abuse of process and prosecution be stayed?
Jago v District Court of NSW (supra) is another case whether the issue of delayed prosecution was raised as amounting to injustice and abuse of process that could be cured by court ordering permanent stay of prosecution.
In NSW Food Authority v Nutricia Australia Pty Ltd (supra) one of the issues before the Court was to do with improper interference with legal proceedings once commenced by imposition upon the accused to provide answers or produce documents through interrogatories the answers to which will incriminate him. Can that amount to contempt of court if the rules of court made no provision for the use of interrogatories? The context in which abuse of process was raised in this case is that it was unfair and unjust to compel the defendant to answer interrogatories and produce documents when he was already before the court and his answers or documents he produced will be used against him. The court dismissed two of six such notices but allowed four to remain resulting in the appeal.
The central issue in Connelly v Director of Public Prosecutions (supra) and Director of Public Prosecutions v Humphrys (supra) was whether issue estoppel, a procedure developed and applied in civil jurisdiction can be applied in the criminal process to stop a prosecution of an accused on a plea of autre fois acquit as amounting to an abuse of process. A related issue was whether a judge has discretion to stop a prosecution of an accused person where a plea of autre fois acquit is raised?”.

19.	It is evident from a review of authorities such as the ones referred to above that it is neither possible nor desirable to define in absolute terms what might constitute an abuse of process.  Each case must be determined according to its own facts and circumstances.  

20.	It also appears, however, that there are two broad categories of cases in which the Court has the power to stay proceedings for abuse of process.  As explained by the Court of Appeal in R v Crawley [2014] EWCA Crim 1028:

“These are, first, where the court concludes that the accused can no longer receive a fair hearing; and, second, where it would otherwise be unfair to try the accused or, put another way, where a stay is necessary to protect the integrity of the criminal justice system. The first limb focuses on the trial process and where the court concludes that the accused would not receive a fair hearing it will stay the proceedings... The second limb concerns the integrity of the criminal justice system and applies where the Court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself.”

21.	It is possible that there will be overlap between the two categories.

22.	It must be emphasised, however, that the power to permanently stay criminal proceedings is an extreme remedy, or a remedy of “last resort”, only to be exercised in the most exceptional circumstances:  Jago v District Court of NSW (1989) 168 CLR 23, applied State v Wohuinangu (1991) N966; In re Namah (2018) N7194; Crawley (supra).  

23.	It is of fundamental importance that the courts should exercise, rather than refrain from exercising, their jurisdiction to determine whether a person charged with a criminal offence is guilty. A permanent stay interferes with that public interest and is equivalent to conferring immunity from prosecution: Williams v Spautz [1992] HCA 34.

24.	In determining whether to stay a proceeding, the court must balance the public interest in ensuring that those charged with serious crimes should be tried against the competing public interest in maintaining confidence in the criminal justice system: Walton v Gardiner (1993) 177 CLR 378; Jago v District Court of NSW (1989) 168 CLR 23.  When considered in this way, it necessarily follows that a permanent stay will only ever be required in very exceptional circumstances. 

25.	The burden of establishing that the bringing or continuation of criminal proceedings amounts to an abuse of the court's process is on the accused. The standard of proof is the balance of probabilities.

26.	In the first category, the focus is on whether it is possible for the accused to obtain a fair trial, bearing in mind the power of the court to impose lesser remedies, and give directions to control the proceedings, for instance through the exclusion of evidence, the issuance of warnings, or the granting of adjournments.   In this category it is necessary for the accused to establish not only that there has been an abuse but that he is prejudiced in his defence such that a fair trial is not possible.   

27.	The principles to be applied in relation to this category are considered in further detail in relation to the accused’s submission on delay at Ground 14, below.  

28.	In the second category, it is not necessary for the accused to show that it is not possible for him to obtain a fair trial.  He or she must show, however, that the continuance of the proceedings would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and inevitably bring it into disrepute: Crawley; Williams v Spautz. 

29.	Cases where such abuse of process might arise include, but are not confined to, those cases where the proceedings are unjustifiably oppressive, or where there has been bad faith, unlawfulness or misconduct on the part of authorities.    

30.	In Williams v Spautz [1992] HCA 34 the High Court held that when proceedings are commenced for an improper purpose, a court does not need to be satisfied that a trial would be unfair. The abuse of process by conducting proceedings for an improper purpose is an adequate basis for ordering a stay.  It will not be an abuse of process if the prosecutor has a legitimate grievance which he or she would wish to pursue even if he or she was also not motivated by the improper purpose. The accused arguing for a stay must demonstrate that the proceeding would not have been commenced, but for the ulterior purpose (Goldsmith v Sperrings Ltd [1977] 1 WLR 478). 

31.	In Williams v Spautz, following dismissal from University, Professor Spautz threatened, instituted and maintained private prosecutions of charges of conspiracy and criminal defamation against former colleagues.  The trial judge found that the predominant purpose of Dr Spautz in instituting and maintaining the criminal proceedings was to exert pressure upon the University of Newcastle to reinstate him and/or to agree to a favourable settlement of his wrongful dismissal case.  

32.	In Thompson v Kalaut (2011) N4265 Davani J dismissed criminal proceedings on the basis that the prosecutor was aware that the allegations were “utterly false”.  In doing so she outlined the exceptional nature of the remedy at paragraphs 101:

“This case is clearly one of abuse of process where the plaintiff was arrested on charges based on facts known to the Police Prosecutor and whoever lodged the complaint, as being incorrect and false.
As the authorities suggest and have held, the power to stay proceedings must be exercised sparingly and only in exceptional circumstances. It is a discretion that is exercised to prevent anything which savours of abuse of process. It is a power that is jealously preserved or guarded and is exercised only in very rare cases and "sparingly". It is exercised only in the most unusual cases and its use can be justified. The exercise of that power should not be a random one and will be exercised to protect the abuse of its process…

33.	Thompson should not be taken as authority for the proposition that the Court should enter into a consideration of the merits outside the trial process. As Kirriwom J explained in Wartoto at [94] and [95], the merits of a case are a matter for trial.   

“The appellant in this case is invoking the court's inherent powers to permanently stay this prosecution as being an abuse of process of the court because the evidence is such that it will not return a conviction. Thus it is futile allowing the criminal prosecution to continue when it can be ended now on the materials before the court. It was and is argued before us that the prosecution simply cannot secure a conviction on the evidence before the court and the court must prevent the abuse of its process by permanently staying this prosecution. If this is the appellant's case, the issue here is, can prosecution of someone based on scarce or mere scintilla of evidence amount to an abuse of court process?

Case authorities relied on by the appellant do not support such a proposition. They are only concerned with long delays connected with prosecution, prosecution associated with ulterior motive or purpose, frivolous and vexatious prosecution, double jeopardy and the like but not one having the effect of hijacking a criminal trial from its normal conventional track on the basis of lack or insufficient evidence or on technical ground.”

34.	Countless cases are defended at trial on the basis that allegations are false.  It is in that forum, in accordance with the rules of evidence and procedure that those matters can be properly adjudicated.  In Thompson it was the misconduct of authorities that was determinative. The essential point was that the prosecutor was aware that the allegations were false.  It follows that it would have been an affront to the integrity of the justice system for the Court to allow the proceedings to continue in those circumstances.

Sections 11, 23, 37 and 57 of the Constitution 

35.	The accused relies on ss 11, 23, 37 and 57 of the Constitution in support of various submissions. 

36.	Their application with respect to each particular ground is not always made clear.  In brief terms I note the following matters.   

37.	Section 11 makes clear that the Constitution is the Supreme law. 

11. Constitution, etc., as Supreme Law.
 
(1) This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.
(2) The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.

38.	Pursuant to s 37 every person is entitled to the full protection of the law.

37. Protection of the law.
 
(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.
(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.
(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.
(4) A person charged with an offence—
(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and
(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and
(c) shall be given adequate time and facilities for the preparation of his defence; and
(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and
(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and
(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.
(5) Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.
(6) Nothing in Subsection (4)(f) invalidates a law which imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of a person charged with an offence are to be paid their expenses out of public funds.
(7) No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.
(8) No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.
(9) No person shall be tried for an offence for which he has been pardoned.
(10) No person shall be compelled in the trial of an offence to be a witness against himself.
(11) A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.

39.	Section 37(1) of the Constitution creates a right to protection of the law.  That right is not limited to cases in which the person is in custody or charged with an offence: In Special Reference Pursuant to Constitution Section 19; Section 365 of the Income Tax Act (1995) SC482. 

40.	The majority in that case (Amet CJ with whom Los J agreed cf Kapi DCJ) found that s 37(1) is “a substantive right standing by itself and is capable of being enforced”.   Per Amet J:

“I also consider that s 37(1) means that if a particular action or conduct against or in relation to or affecting a person is not permitted by or according to the law, then that person may claim that his “right to the full protection of the law” has been breached. It also means that if there is a law/principle of law, regulation, rule etc. that governs or regulates particular conduct or action, and that law is breached or not complied with, the person aggrieved by that conduct or action can claim that his “right” to “the full protection of the law” has been breached, and under ss 57 and 58 he can seek “protection” from the Courts, in the form of damages or an order compelling the offending party to comply with the requirements of the particular law that affords “full protection” to the person aggrieved.
This is also entirely consistent with the following statement by Bredmeyer J. in Ume More’s case:
“That means that a person affected by a law has the right that the law be applied properly in relation to him, and that officials appointed by law or under the law have the duty to act in accordance with the law.”
I would add again that if officials, such as police, custom officers, taxation officers and numerous others who have statutory duties to perform under various laws, or indeed anyone also in a legal relationship who has a legal duty to comply with the law or apply the law properly in relation to another person, fail to comply with the law or to apply the law properly the person affected or aggrieved may seek enforcement of that S.37(1) right by a s 57 or 58 application.”

41.	A failure to properly comply with a law, or apply it to an accused, would entitle him or her to invoke s 37(1) and seek relief under s 57 of the Constitution.  

42.	Furthermore, it is well established that a person’s fundamental and qualified rights under the Constitution are protected and enforceable by s 57 of the Constitution.  Where a breach of a right is established, s 57 creates a power in, and indeed a duty on, the court to make such orders as are “necessary or appropriate” to enforce or protect those rights. Those rights are separate and independent of statute and common law: John Alex v Martin Golu [1983] PNGLR 117; The State v Popo [1987] PNGLR 286; Reference No 1 of 1977 [1977] PNGLR 362. The fundamental rights under the Constitution are supreme: s 11, and the power to enforce them cannot be derogated from: s 57(6).  

57. Enforcement of guaranteed rights and freedoms.
 
(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.
(2) For the purposes of this section—
(a) the Law Officers of Papua New Guinea; and
(b) any other persons prescribed for the purpose by an Act of the Parliament; and
(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,
have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.
(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).
(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).
(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.
(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.

43.	It does not follow that a breach of a right under the Constitution automatically entitles an accused person to a permanent stay of proceedings pursuant to s 57(3) of the Constitution.  It is my view that in determining whether it is “necessary or appropriate” to permanently stay proceedings in the event of a failure to comply with a person’s rights under the Constitution, the Court should have regard to the principles outlined in the authorities discussed above.  

44.	For the most part, breaches of rights under the Constitution can be cured by appropriate orders or directions at trial.  For instance, a trial judge may decide in the exercise of discretion to exclude a record of interview obtained in breach of s 42(2) of the Constitution in an appropriate case.  

45.	In my view it is not necessary to have recourse to s 23 of the Constitution for the purposes of permanently staying a proceeding, given the inherent powers of the National Court, and the powers under s 57, although it would appear to provide power to do so.  Again, the same considerations would apply.  Whether or not a sanction is warranted would depend upon the circumstances of a particular case. 

23. Sanctions.
 
(1) Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may—
(a) impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10 000.00; or
(b) in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,
or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.
(2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.
(3) Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).

AREA 1 – LAWFULNESS AND MISCONDUCT OF TFS

46.	I will deal with Grounds 1 to 13, 15 to 25, 28, 30 and 31 here.

GROUND 1: “THE CRIMINAL ALLEGATIONS WERE PURPORTED BREACH OF A FALSE SUPREME COURT ORDER THAT DOES NOT EXIST:  CRIMINAL INDICTMENT FALSE AND DEFECTIVE”  

Submissions 

47.	The accused contends that for politically motivated reasons and as a result of professional jealousy, the accused’s enemies conspired with the former Justice Minister in 2006 to unlawfully terminate PPL’s legal brief-out and bill payments by the State.  In response PPL instituted separate legal proceedings before the National Court.  The first, OS No 829 of 2006, Paul Paraka trading as Paraka Lawyers v Joshua Kalinoe & Ors challenged the Chief Secretary’s decision to direct the Finance Secretary to stop the bill payments.  The second, OS No 876 of 2006 Paul Paraka trading as Paul Paraka Lawyers v Hon Bire Kimisopa, MP & Ors challenged the former Justice Minister’s decision to terminate brief outs to PPL.

48.	The National Court in the first proceedings granted leave for judicial review and ordered the payment of about K6.5m to PPL in respect of 944 legal bills in the interim.  The State appealed and on 22 November 2006 the orders for payment were stayed by the Supreme Court.   

49.	The National Court in the second proceedings granted leave for judicial review and stayed a number of decisions pending determination of the review, including the decision of the Justice Minister to establish a departmental inquiry into brief-outs to law firms, including PPL, and the decision of the Justice Minister to terminate brief-outs and the payment of legal fees.  The court order prohibited the departmental inquiry taking place, restrained the Justice Minister from interfering with the functions of the Attorney General and the Solicitor General, and vested payment of any legal fees in the absolute discretion of the Attorney General.  The accused submits that those orders remain on foot to this day as the substantive proceedings in the National Court are still pending.  On 2 March 2007 the National Court in the same proceedings ordered that a further K6.4m was to be paid by the Department of Finance to PPL in respect of 552 legal bills.  The State appealed and the orders were stayed. 

50.	On 10 July 2014 the Supreme Court quashed the National Court orders directing the payment of monies in both cases and remitted the substantive proceedings back to the National Court for expedited hearing:  Kalinoe v Paul Paraka Lawyers (2014) SC1366.   The Supreme Court decision did not affect the other orders made in the National Court proceedings, nor did it affect the legal clearances given by the Attorney General in respect of the payment of 30,000 invoices for over 6000 brief-out matters which were not the subject of the proceedings.  The legal bills the subject of the criminal allegations before this Court were not the subject of any stay orders by the Supreme Court.  

51.	On 6 July 2014 the former Attorney General, Ano Pala, provided legal advice to the Police Commissioner to the effect that the legal bills the subject of criminal allegations against the accused were not the subject of any stay orders by the Supreme Court, and that all other legal bills had been lawfully paid, that the criminal allegations were false and without basis and that the State had the option of instituting taxation and recovery proceedings.  

52.	The accused further submits that K80m had been lawfully paid by the Department of Finance in respect of 4,740 legal bills between February 2012 and 2013 for legal work undertaken by PPL and authorised and cleared by the Attorney General.  

53.	Several witnesses in the police brief refer to the court orders, and if the payment of legal bills was in breach of the National or Supreme Court orders then the proceedings should have been dealt with either as contempt proceedings or by way of civil recovery proceedings. Accordingly, the allegations in the District Court were false, without basis, and unlawful and consequently the committal proceedings were in breach of ss 37(1), (2), (7), (11) and 23 of the Constitution, and the indictment is in breach of the accused’s right to full protection of the law under s 37(1) of the Constitution.  In addition, the charges are prejudicial, an embarrassment to the accused, and defective and should be quashed pursuant to s 558 of the Criminal Code.  The charges are also null and void under s 11 of the Constitution and should be permanently stayed pursuant to ss 23 and 57(3) of the Constitution.

Consideration 

54.	I have set out the submissions under this ground in some detail, in part because there are particular aspects of it that the accused returns to later in his submissions.  The submissions can be dispensed with, however, on the simple basis that the matters raised go to the merits of the case and, as such, are matters for trial.  

55.	It appears that the accused is seeking to rely on Thompson to have the case stopped on the basis that the allegations are patently false.  The fact that interlocutory orders were made in civil proceedings for the payment of bills, or even whether those orders were stayed by the Supreme Court, is not determinative of the issues before this Court.  

56.	The legal and factual issues in the civil proceedings, which at a substantive level have not been determined in any event, are different from those before this Court sitting in its criminal jurisdiction.  In addition, it does not appear on the accused’s own submission that the civil proceedings concerned the same bills the subject of the prosecution in this case.  

57.	Furthermore, putting aside the fact that the Supreme Court held that the National Court had no power to make such orders, the fact that the Court granted power to the Attorney General to pay any legal fees in his absolute discretion is not determinative of whether or not there was any criminality on the part of the accused.  

58.	Similarly, whilst the former Attorney General’s view, or more particularly, the factual matters underpinning that view may be very relevant to the issues in dispute, those are matters for trial.   The letter does not express a definitive view about the legality of the payments but seeks to draw certain information to the attention of the Police Commissioner for consideration.  The State alleges that the payments in this case were made without the clearance of the Attorney General as required by law.  The letter refers to clearances in 2007.  It is unclear whether the Attorney General’s letter concerns bill payments the subject of the criminal proceedings.  On its face, the Attorney General’s letter relates to allegations about payments of K71.8m between 2012 and 2013.  The allegations before me are concerned with payments between 2007 and 2011.  The administrative clearance of payments, if established, is not of itself necessarily determinative of the criminality of the accused in any event. Those are matters for consideration at trial with other evidence in accordance with well-established legal principles and the rules governing evidence and procedure.

59.	Essentially the accused is attempting to argue the merits of the case prior to the trial. Again, as Kirriwom J explained in Wartoto v The State (2015) SC14111 at [110] and [111]:

“At this juncture on the sufficiency of evidence in our criminal justice system, that is a serious issue to be raised at the appropriate time in the trial. It sometimes happen where evidence is so lacking in material facts that the prosecution of the case will not result in a conviction, the Public Prosecutor has a discretion to decline to lay charges against the accused. But where the trial proceeds, the defence can apply for an acquittal at the close of the prosecution case by way of no case to answer submission. Issue of sufficiency of evidence in a criminal case is dealt with in either of these two ways and not any other way.

This application that the appellant pursued before Salika DCJ would have been properly made in the Committal Court before the District Court Magistrate who could then have taken into consideration that submission when determining whether a prima facie case was established or not. Whether or not there was evidence for a conviction to lie is a question for criminal trial proper to determine which the laws and rules of court have made adequate provisions for.”

60.	Finally, as I have previously said, the fact that the evidence might also give rise to an allegation of contempt before the Supreme Court does not preclude the State bringing proceedings under the Criminal Code for misappropriation:  see (Decision of Further Amended Motion No 1) at [99] to [102].

61.	Ground 1 is dismissed.  

GROUND 2: “SOLICITOR GENERAL’S CRIMINAL COMPLAINT UNLAWFUL & ALLEGED PRIME MINISTER’S DIRECTIVE LETTER FALSE”

GROUND 5: “EXECUTIVE GOVERNMENT DIRECTIVE – ATTORNEY GENERAL’S LEGAL ADVICE AND OPINION” 

Submissions
62.	The accused contends that all police complaints must have merit and must be lodged by properly authorised individuals or government officials.  Busy bodies and mischief makers must not be entertained, as they may be motivated by ulterior motives. 

63.	TFS and its informant, Detective Inspector Pius Peng, lied when they said that they acted on the complaint of the former Solicitor General, Neville Devete, dated 14 March 2012, and a letter of the Prime Minister, Hon. Peter O’Neill, dated 13 May 2013 as neither of those things were formal complaints and both contained false allegations.  In particular, the Solicitor General was not authorised by the Attorney General to make the complaint, and TFS had no power to act on the letter as it was not directed to it but to the Fraud Squad.  Similarly, the Prime Minister’s letter was a direction to Ministers and not a direction to TFS.  TFS acted unlawfully and without lawful authority to rely on the Solicitor General’s letter and the Prime Minister’s letter as constituting directives to carry out criminal investigations. 

64.	Furthermore, only the Attorney General has the legal authority to brief out cases to law firms including the Solicitor General: s 7(i) of the Attorney General Act and Gelu & Manoburn v The State (2003) SC716.  The Solicitor General had no authority other than to act as an “advocate” in litigation matters on behalf of the State, and could not in law perform any other function like making a complaint to police.  He had no legal standing and if he had a genuine complaint he should have raised it with the Attorney General who could have taken what action he saw fit.  As such his letter of complaint to the police was null and void and therefore the charges in the District Court and the indictment are also defective and null and void.

65.	In addition, the Attorney General is responsible for providing legal advice on any legal matters affecting the State and its government which is absolute and final, pursuant to s 8(4) of the Attorney General Act:

(1) The Attorney-General, as the principal legal adviser, shall tender legal advice and opinion to the National Executive following a request to do so and shall of his own initiative give such advice where it appears to him necessary or appropriate for legal advice to be given on a matter.
(2) The Attorney-General may tender or offer legal advice or opinion to the National Executive Council on a matter coming before the Council.
(3) The Attorney-General may tender or offer legal advice or opinion to a Minister on a matter relating to the portfolio of that Minister.
(4) On matters affecting the conduct of the business of the State where legal issues arise or might arise, legal advice shall be provided by the Attorney-General, either in his capacity as principal legal adviser to the National Executive or under Subsection (2) or (3) to the exclusion of all other lawyers unless the Attorney-General, in his absolute discretion, authorizes the giving of legal advice by any other person.

66.	On 6 July 2014 the Attorney General advised TFS that it was undertaking an unlawful criminal investigation into the PPL legal bills issue and advised the Police Commissioner to cease the investigation on his findings that the allegations were false.  This advice superseded the Solicitor General’s false complaint and was legally binding, and furthermore renders all the statements from the witnesses at the Solicitor General’s office a nullity.

Consideration

67.	There is nothing on the face of the complaint by the Solicitor General nor the Prime Minister’s letter to suggest that they are false.  The Solicitor-General’s letter of 14 March 2012 is addressed to the National Fraud and Anti-Corruption Directorate.  It does not specifically refer to PPL, or legal bills for that matter, but raises concerns about the payment of very large judgement debts by officers within the Department of Finance, which he is aware he has not endorsed for payment.  The letter is copied to the Attorney General, The Secretary for the Department for Justice and Attorney General and the President of the Law Society.   

68.	The Prime Minister’s letter of 13 May 2013 is addressed to several Ministers.  It too raises in general terms concerns about very large amounts of money been paid in legal fees and out of court settlements.  It specifically calls for:

 "...a High Level Investigation must be conducted into the legality of the payments and settlements. The investigation team should be made up of Taskforce Sweep and Police Fraud Squad, with the support of the Australian Federal Police and Interpol."

69.	There is nothing unusual in these materials prompting an investigation by an anti-corruption taskforce, like TFS.  It would be very strange if they did not.  

70.	There is no doubt that a complaint made to police must be genuine.  Severe penalties apply to those who seek to pervert the course of justice, either by bringing false accusations, or conspiring to conceal a crime:  see Division 5 of the Criminal Code.  

71.	There is no requirement, however, that a person who makes a complaint must be “properly authorised” to report a crime.  A person does not require legal standing to report a suspected crime to police, regardless of whether or not allegations concern State monies.  There is a moral obligation on any person who witnesses a crime or suspects that a crime has taken place to report it to police.  This is essential to bringing criminals to justice, and maintaining the rule of law, regardless of the type of crime, or by whom or where it is allegedly committed.  It was for this reason that The Whistleblowers Act, 2020 was recently passed to protect employees who make complaints about suspected offences, including within State institutions.

72.	To suggest that one of the country’s most senior lawyers, responsible for representing the State in legal proceedings, was not permitted to report concerns he might have had about the suspected abuse of very large amounts of State monies is misconceived.   If the Solicitor General had genuine concerns then he was not only entitled, but obligated, not just morally but in accordance with the responsibilities of his office, to report the matter to police.  

73.	According to the accused the payments were authorised by the Attorney General.  That is in dispute. The State says the payments were not authorised by the Attorney General.  The administrative clearance, or otherwise, of the payments is not determinative of the criminality of the accused in itself in any event. Those are matters for trial.  

74.	The accused has not shown an ulterior motive on the part of the Solicitor General.  As explained above, however, in determining whether a proceeding is an abuse of process because it has been brought for an ulterior purpose, it is the motive of the prosecuting authority, in this case the informant or the Public Prosecutor, that is relevant and not the motive of the complainant in making the complaint: see [33] and [34] above and R v Giles [2000] VSCA 121 at [34] to [36].  The motives of a complainant are properly considered by the Court at any trial together with the other evidence.

75.	Furthermore, whilst the information contained in the former Attorney-General’s advice was a relevant consideration for authorities when investigating the claims, it was by no means binding on the police, nor was it binding on the State.  

76.	As explained in The State v Runny Dau (2020) N8611, the investigation of a criminal matter and the laying of charges against a defendant at the District Court stage is a matter entirely within the powers of the police.  No person has power to intervene in that regard, other than the Police Commissioner, discussed further below, not even the Public Prosecutor.  This follows from Section 197(2) of the Constitution, which provides (emphasis mine): 
“... insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force.”
[See also the discussion in In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388.]

77.	Furthermore, it is the Public Prosecutor that controls the exercise and performance of the prosecution function of the State at the National Court, not the Attorney General:  s 176 and 177 of the Constitution; and see the multitude of cases, including Application by Herman Joseph Leahy (2006) SC855 at [141].  

78.	In his affidavit of 19 November 2019, the Public Prosecutor stated that he had considered the evidence available before deciding to proceed against the accused in accordance with his powers under s 526 of the Criminal Code.  There is no evidence before me to challenge that evidence. 

79.	Nor does the opinion of the Attorney General render the statements of witnesses contained in the brief as to matters of fact “null and void”.   Evidence deposed to within those statements might be disputed but that is an entirely different matter, which goes to the substance of the allegation, and is a matter for trial.  Again, the clearance of the payments, if established, may be highly relevant to the allegations to be established by the State at trial but it is in that forum, together with the other evidence, and the rules of evidence and procedure that the matter should be considered. 

80.	The District Court proceedings were not unlawful or unconstitutional for the reasons outlined by the accused. The indictment is not null and void, prejudicial, embarrassing or open to be quashed.  

81.	Grounds 2 and 5 is dismissed.

GROUND 3: “NATIONAL COURT RESTRAINING/PROHIBITIVE ORDERS” 
Submissions

82.	The accused submits that the National Court restrained/prohibited any “State investigations” into brief-outs and payments to PPL by the Department of Justice and Attorney General by virtue of the following order in OS No. 876 of 2006, Paul Paraka v The State & Ors:

“The Departmental Inquiry into the Attorney General’s Office on matters of brief-out and payment of legal fees is prohibited from continuing, pending the determination of the substantial judicial review.” 

83.	The State has not appealed those orders, which remain on foot whilst the National Court proceedings are still pending, some 14 years later.   As such, the informant has breached the order and the police brief is “null and void and of no effect”, is in breach of s 155(6) of the Constitution and in breach of the accused’s right to protection of the law under s 37(1) of the Constitution.  He seeks a declaration that the indictment is therefore defective and null and void, and should be permanently stayed, pursuant to ss 11, 23 and 57(3) of the Constitution.

Consideration

84.	The police were not a party to the proceedings and were not bound by the order, which stopped an internal inquiry by the Department.  The police were not prevented from conducting an investigation into the same subject matter.  The order does not render the police brief “null and void”, nor the charges laid at the District Court, nor the indictment presented before this Court “defective”.  The accused has failed to identify any prejudice or embarrassment, nor any basis for the indictment to be permanently stayed by virtue of the above order.

85.	Ground 3 is dismissed. 

GROUND 4: “ALLEGED PAYMENT DONE UNDER A VALID NATIONAL COURT ORDER” 

Submissions
86.	The accused submits that all legal bills paid to PPL were cleared by the Attorney General/Solicitor General pursuant to the National Court orders of 29 December 2006 and 6 February 2007 in OS No. 876 of 2006, and that this was affirmed in the decision of Kariko J in James Marape and Peter O’Neill v Paul Paraka (2014) N5740.  In the latter case Kariko J accepted letters from Acting Attorney General, John Kumara, that the 2716 legal bills delivered between December 2006 and 23 January 2007, the subject of the proceedings before him were genuine, reasonable and should be paid.  The State has not appealed against the orders in Os No. 876 of 2006, Paul Paraka v Hon. Biri Kimisopa or the orders of Kariko J to date in James Marape and Peter O’Neill v Paul Paraka, and they are therefore binding on it. Payments made under valid clearances and court orders cannot be the subject of criminal proceedings.

Consideration 

87.	Firstly, it is unclear whether the bills in either case are related to the bills or payments the subject of the criminal proceedings before me.  The accused’s submissions under Ground 1 suggest that the orders in OS No. 876 of 2006 did not apply to any payments in this case.  The proceedings before Kariko J concerned allegedly fraudulent payments of more than K71m made by the Department of Finance in 2012 and 2013 from bills delivered in 2007.  The charges against the accused in this case concern payments during the years 2007 to 2011.

88.	Moreover, the proceedings before Kariko J were civil proceedings and concerned the issues for determination before that court, in particular whether the police should be stopped from arresting Mr Marape and Mr O’Neill, and whether instead orders should be made for taxation to determine the validity of the legal bills, on the basis that if the bills were valid there could be no illegality in the payment of the bills.   

89.	Both applications were refused by Kariko J.  Whilst he found that there was nothing to suggest that the letter from the Acting Attorney General was not genuine or accurate, he also found that there was no evidence that the investigations were “the work of rogue policemen” or “politically motivated”.  As he observed at [55]: 

“In my opinion therefore, there is a prima facie case that in the interests of justice or the public interest, the balance of convenience favours the refusal of the interim restraining order sought, as it is not in the interests of justice or the public interest that lawful investigatory authorities should be prevented from performing their functions.”

90.	In addition, he found that there were no special circumstances warranting taxation pursuant to the Lawyers Act.  As he explained: 

“[T]axation of costs is an exercise to assess whether items have been properly charged on a bill of costs and whether the cost for each item is reasonable and not to determine whether a bill of costs is valid.”

91.	The learned trial judge was not concerned with the same issues before this court.  Nothing in either OC No. 876 of 2006 or James Marape and Peter O’Neill v Paul Paraka prevented the police from investigating or charging the accused.     

92.	The orders in those cases do not render the prosecution in either the District or National Court in this case a nullity, or the indictment defective, prejudicial, embarrassing or defective and liable to be quashed.   

93.	Ground 4 is dismissed.

GROUND 7: “TAXATION PROCEEDINGS” 

Submissions
94.	The accused submits that the dispute over the legal bills should have been resolved by taxation as stated by the Attorney General and that the informant had no lawful authority to pursue a separate parallel criminal proceeding without authority from the Police Commissioner or the Attorney General.  Four judges have expressly stated that the actions by TFS were “wrong, unlawful and without basis”.  

Consideration

95.	I repeat my comments regarding the Attorney General’s letter above.  I will deal with the Police Commissioner’s power over TFS in further detail below.   In general terms, however, civil and criminal proceedings are conducted in separate jurisdictions.  They deal with different legal and factual issues, to different standards, and for different purposes, depending upon the nature of the proceeding.  The fact that the legal bills might have been subject to taxation proceedings does not preclude the bringing of criminal proceedings.  None of the decisions in the civil proceedings are binding on this Court. 

96.	I have already dealt with the findings of Kariko J.  

97.	The Supreme Court decision in Ano Pala v The State (2015) SC1515 does not assist the accused.  The Supreme Court found that a warrant of arrest was defective on various grounds, including that it alleged that the applicant in that case “Conspired with Peter O’Neil, Geoffrey Vaki, James Marape, Paul Mawa, Robert Leo, Sam Bonner, Ralph Saulep and Tiffany Twivey to defeat the course of justice in Paul Paraka investigations by filing proceedings in OS No. 115 of 2014 Hon James Marape& Hon Peter O’Neil v. Paraka trading as Paul Paraka Lawyer to legitimatize bills paid to Paul Paraka Lawyers by way of declaration of taxation”.

98.	As the Supreme Court held the unlawful act alleged in that case, namely “filing proceedings in OS No. 115 of 2014” was not an unlawful act. “Indeed it is an act incapable of being a criminal act. The purpose of the filing is alleged to be “to legitimatize (sic) bills paid to Paul Paraka Lawyers by way of declaration or taxation”. 

99.	The Supreme Court expressed no view as to whether or not taxation proceedings should have been brought, nor as to whether or not criminal proceedings in general terms should be brought.  Rather, it was making clear that the offence alleged in the warrant was not known to law and thus the warrant was defective on its face.  Furthermore, as the Court observed in passing, the outcome of any such taxation proceedings would not be conclusive as to criminality in any event.  

100.	I reject entirely any submission that the National Court sitting in its criminal jurisdiction is prevented from hearing a criminal allegation whilst the National Court in its civil jurisdiction “is yet to make a full determination of the lawfulness of the legal bills payments (through the taxation proceedings)”.

101.	Civil proceedings are not precursors to criminal proceedings.  Civil and criminal proceedings are conducted in separate jurisdictions.  They deal with different legal and factual issues, to different standards, and for different purposes.   

102.	The suggestion that the police, or the Public Prosecutor, are precluded from pursuing criminal proceedings whilst the taxation proceedings are still on foot, at all, let alone after more than 12 years, is fundamentally flawed.  As is the suggestion that civil taxation proceedings take precedence over criminal proceedings, and the submission that the proceedings should be struck out for involving a multiplicity of proceedings because the State is “maintaining two different proceedings in respect of the same subject matter seeking completely different and contradictory outcomes”: Telikom PNG Ltd v Digicel (PNG) Ltd & Others (2008) SC906 and Anderson Agiru v The State & Ors (2002) SC687.  

103.	The indictment is not seeking to bring a claim at civil law. It is alleging criminal conduct on the part of the accused, a matter ultimately concerning different legal and factual issues for determination from any taxation proceedings, regardless of whether or not they concern similar subject matter. 

104.	Ground 7 is dismissed. 

GROUND 8: UNLAWFUL ACTIONS OF SWEEP TEAM & DISTRICT COURT IN USURPING POWERS OF OTHER LAWFUL AUTHORITIES

105.	For similar reasons, I reject the accused’s submission that by laying criminal charges TFS “effectively asked” the District Court and the National Court to undertake the process of reconciling legal bills under ss 62 to 65 of the Lawyers Act, and to review the National Court orders in OS No. 876 of 2006, invalidate the legal clearances given by the Attorney General,  and determine whether legal bills were paid in contempt of a Supreme Court order, determine whether bills were paid out of public funds, which is a function of the Auditor-General pursuant to ss 214 and 216 of the Constitution and consider whether the accused is guilty of misappropriation, which is a function of the Auditor General under s 5 of the Audit Act.   

106.	The charging of a criminal matter does not involve an usurpation of civil procedures or functions.   It is a separate legal proceeding brought to establish an alleged offence.  Whether or not it involves similar subject matter, evidence or considerations to any of the above matters is beside the point.   As for the powers of the Attorney General under s 5 of the Audit Act, I dismissed this ground in The State v Paraka, Decision on Further Amended Motion No 1 to Dismiss/Set Aside/Permanently Stay/Quash Indictment (2020) N8608 (Decision of Further Amended Motion No 1) at [88] to [98].  For the accused to raise this again is an abuse of process on his part. 

GROUNDS 6, 9, 10: TASKFORCE SWEEP 
GROUND 6: EXECUTIVE GOVERNMNET DIRECTIVE – POLICE COMMISSIONER’S DIRECTIONS
GROUND 9: INVESTIGATIVE TASKFORCE SWEEP (ITFS) 
GROUND 10: EXECUTIVE GOVERNMENT DIRECTIVE – ABOLISHMENT OF SWEEP

Submissions
107.	In summary, the accused submits that TFS was an unconstitutional and illegal body and its actions were therefore null and void.  TFS was not set up under s199 of the Constitution and the informant had no legal standing to conduct criminal investigations and/or lay charges. TFS only had power to conduct administrative investigations into allegations of corruption. It could not conduct criminal investigations and lay charges.

108.	The informant was not an integral member of the police force and was under the direction, command and control of the TFS Chairman, Sam Koim, a civilian.  The informant acted in breach of s 197 and 198 of the Constitution and his actions, and the criminal charges and the police brief are therefore null and void.   The informant refused to take instructions from the Police Commissioner.  He did not act objectively and impartially in undertaking the criminal investigation.  The charges and the police brief were biased.  TFS, Sam Koim and the informant collaborated, connived and acted unlawfully in undertaking illegal investigations into PPL’s legal bill payments under the auspicious of a non-legal administrative body. Realising that TFS was acting unlawfully, NEC abolished it.   The charges were laid after NEC abolished TFS.  The charges were initiated at the District Court unlawfully in contravention of the Police Commissioner’s directive and as such the proceedings were unlawful, and the indictment prejudicial, embarrassing and defective.   The prosecutions are null and void and of no effect.   The Public Prosecutor unlawfully relied on, and the police brief is, an invalid and biased police brief and the indictment is therefore a nullity, the indictment is prejudicial, embarrassing and defective, and the proceedings should be permanently stayed.

Consideration 

109.	It is not the case that TFS was established as a separate and unlawful police force in contravention of s 199 of the Constitution.  Nor are the authorities relied upon by the accused authority for that.  As explained by Gavara-Nanu J in Golu v National Executive Council (2011) N4425:

“The decision by the NEC to appoint the investigation team was in my opinion made within its powers. The claim that the appointment of the investigation team amounted to direction and control of the Police Force and the Public Prosecutor and a member of the court or judge has no basis. When one looks at the instrument of appointment for the members of the investigation team, there is nothing to support this claim. There is no evidence before the Court that the NEC acted beyond its powers or breached either Constitutional laws or statutory laws when appointing the investigation team and setting its Terms of Reference.”

110.	Makail J in Sam Koim v the State & Ors (2016) N6558 did not, in dismissing an application for judicial review rule that Sweep was not a legal body such that its actions were null and void.  The Court found that it lacked strict legal status of its own, that is a very different thing.  It was created by NEC decision and, as such, NEC also had the power to disband it:  see [85], [86] and [135].   
  
111.	There was nothing inherently unlawful about TFS.  It was not a separate police force.  It was not confined to conducting “administrative investigations”. It was as its name suggests, a dedicated anticorruption task force, established and funded by NEC, bringing together members seconded from various State agencies, for the purpose of investigating allegations of corruption, until a permanent anti-corruption body could be established.  

112.	Anti-corruption taskforces are not uncommon in jurisdictions similar to ours.  They bring officers with expertise and experience in State organisations together with police officers familiar with the requirements of criminal investigations and who are able to lay complaints in accordance with their police powers, where appropriate.  

113.	I agree entirely with Makail J when he said in Koim (supra) at [140]:

“A criminal investigation can be undertaken in respect of individuals and corporations, and arrest warrants applied for, by members of the police force whether or not those members of the police force are operating under the label of “Investigation Task Force Sweep Team”. The decisions under review did not remove any members of the TFS from their position as police officers, nor did it prevent the police force pursuing an individuals or corporations identified by the TFS.”

114.	Similar comments were made by Dingake J in Paul Paraka v Principal Magistrate Cosmos Bidar, Magistrate M Gauli, Timothy Gitua, Pius Peng, Gari Baki, Kerenga Kua, Steven Davis, Peter O’Neill, Betty Palaso, Benjamin Harry, Rimbink Pato, BSP, Sam Koim, Bernard Barum, Faith Barton & The State (2018) N7443 at [43]:

“On a proper consideration of the material at my disposal it seems to me that ITFS was merely an interdepartmental task force of existing officers of the State, clothed with the power to exercise the powers attached to them as officers or functionaries of the State. There can therefore be no arguable case to be made that they could not lawfully prefer charges against the applicant.”

115.	As for the allegations that TFS acted unlawfully, it is the case that NEC decided to disband TFS on 18 June 2014.  There is no evidence before me, however, that NEC abolished it because it believed it was acting unlawfully.  The NEC decision relied upon by the accused refers to the progress made to establish the Independence Commission against Corruption and a policy submission, the content of which is noted but is not produced.

116.	It is also the case that the Acting Police Commissioner, Geoffrey Vaki, one day following his appointment, on 17 June 2014, swore an affidavit expressing concern about a lack of detailed evidence in a brief provided to the former Police Commissioner dated 5 May 2014.  The Acting Police Commissioner expressed the view that Mr Koim’s assertions about PPL not submitting bills to the Solicitor General or the Department of Justice were “false” as there were numerous clearance letters detailing invoices provided by the then Solicitor General.  

117.	The Acting Police Commissioner went on to make clear at paragraph 8 and 9, however, that the investigation into PPL’s legal bills and payments by the State was continuing:

“I say that the position of the Royal Papua New Guinea Constabulary that the investigations into the Paul Paraka Lawyers bills to and payments from the State are continuing.  It would assist the investigation for the Court to make a determination of the bills either by way of declaration or taxation. Before any prosecution can be obtained this is an essential element that needs to be obtained.

I therefore support the application for the determination of this issue. I also would consent to Orders that any arrests in this matter against [Marape and O’Neill] be restrained pending the outcome of these proceedings.  I do consent to this on the basis that the ongoing police investigations into the matter of the payment of the legal bills of Paul Paraka Lawyers continues unaffected, including interviews.”

118.	On 6 July 2014 the Attorney General advised the Commissioner that in his view the payments “are not or may not be illegal”.    

119.	On 8 July 2014 TFS obtained a stay of the NEC decision to disband it.

120.	It was not until 31 July 2014 that Detective Constable Pius Peng, a member of TFS, charged the accused with the charges underpinning this proceeding.  He remained at all times a member of the police force.

121.	Pursuant to s 140 of the Police Act DC Peng continued to hold the general duties and powers of a constable at common law, including the powers to detect crime and bring an offender to justice: see Paraka (Motion No 1) at [96] and [97]; see also Injia J in S v William (1995) N1380.  

122.	Any police officer may bring criminal charges subject to the direction and control of the Police Commissioner. 

123.	Whilst he was not required to seek express approval from the Commissioner to bring criminal charges, DC Peng was subject to the direction and control of the Police Commissioner,  who is at liberty to issue directions to members of the Police Force regarding the conduct of criminal investigations, including applying for arrest and bench warrants, and laying and withdrawing charges: Re Powers, Functions, Duties and Responsibilities of Police (2014) SC1388.  

124.	There is, however, no evidence of any direction by the Police Commissioner to withdraw or discontinue the District Court proceedings the subject of the s 526 indictment.  

125.	A Supreme Court Reference was brought by the Attorney General in 2014 to clarify the powers of the Police Commissioner.  Submissions were heard from the Prime Minister, the Attorney General, the Police Commissioner, the State,  Chief Supt Damaru and Chief Insp Gitua, and Sir Toami Kulunga.  

126.	The Supreme Court’s decision in Re Powers, Functions, Duties and Responsibilities of Police was given on 2 October 2014.  It made clear the general power of the Police Commissioner to direct the withdrawal of criminal charges.    

127.	Despite that the charges in this particular case remained on foot at the District Court until the magistrate refused to commit on 18 December 2018, almost four and a half years later. 

128.	The only evidence of any direction by Commissioner Baki are standing orders issued in April 2016 reminding all officers of their obligation to take directions from him, and suspended the operations of the National Fraud and Anti-Corruption Directorate, to restore discipline and uphold the integrity of all matters being investigated by the Directorate.

129.	The accused wrote to the Police Commissioner on 17 and 18 August 2016 asking him to instruct his officers to withdraw all criminal charges and terminate all criminal investigations against the accused and his co-accused.  In response the Police Commissioner advised the accused on 30 September 2016 that as the matters were before the Courts, “it would be improper and not appropriate for me to instruct police to withdraw the charges and terminate all criminal investigations against yourself and co-accused at this point in time”. 

130.	In late August 2018, however, it appears that Police Commissioner Baki reconsidered his position, at least so far as the former Prime Minister was concerned, and decided to terminate the case against him. 

131.	On 12 September 2018 the accused wrote to the Police Commissioner again, referring to his decision to discontinue proceedings against the former Prime Minister and asking him to “take some definitive corrective steps in bringing an end to all the Paraka related investigations within the next fourteen days”, failing which the accused would institute various legal proceedings against the Police Commissioner and others.   

132.	Despite this the Police Commissioner took no action to stop the proceedings against the accused.  Instead the charges remained on foot until the magistrate stopped the proceedings on the basis that they were an abuse of process.  

133.	The accused submits that having obtained the stay on 8 July 2014, members of TFS brought proceedings against various people including Commissioner Baki and former Commissioner Vaki, former Prime Minister O’Neill, his lawyer, Tiffany Twivey, Attorney General Ano Pala, District Court Magistrate Pindipia and Justice Sakora, and that all these proceedings were subsequently dismissed at committal or quashed.  It does appear that various proceedings were commenced and that in some cases they were dismissed at committal. It is also the case, however, that some were put to an end following committal to the National Court by the Public Prosecutor in accordance with his powers under the Criminal Code.   In this case, however, the Public Prosecutor has exercised his power under s 526 of the Criminal Code to proceed.

134.	It is the case that the Police Commissioner sought leave in OS (JR) No. 453 of 2017, Gari Baki v Sam Koim, Chairman, Chief Inspector Timothy Gitua, Sergeant Aaron Eliza, Sergeant Pius Peng, Senior Constable Sopata comprising TFS, NEC and the State for judicial review of NEC’s decision to establish TFS, and declarations that it was unconstitutional and invalid for breach of s 197 and 198 of the Constitution, and a declaration that the operation and functions of TFS was unconstitutional, unlawful, invalid and of no effect.  He sought orders quashing the decisions establishing TFS and permanent injunctions restraining TFS by themselves or through their agents or other government agencies from further inquiring into any fraud and corruption complaints registered with TFS, and restraining any proposed civil or criminal action against any person, and an order that all information and evidence collected be returned to the Office of Commissioner.  

135.	The application was dismissed for being delayed but in his affidavit the Police Commissioner expressed a number of concerns including that:  TFS no longer comprised a multiagency taskforce but was comprised only of the Chairman and five police officers; the Chairman was directing and controlling police officers; TFS was not reporting to the Commissioner of Police before making arrests; TFS was receiving complaints from the public directly rather than through NEC; its Chairman was discussing confidential investigations in the media; it was under staffed and lacked capacity; it was becoming a permanent establishment; it lacked the capacity to deal with the 256 complaints it had received; and it was taking over the functions of the Police Fraud Squad.  He also expressed concern that NEC directly funded TFS and that there was a disparity in, and the duplication of, allowances paid to members of TFS, and the potential for that to influence impartiality in the conduct of investigations, although no details of these matters were provided.  The Police Commissioner’s views were expressed in 2017 and well after the charges were laid in 2014.

136.	It is also the case that members of TFS brought proceedings.  Its Chairman, Sam Koim, commenced proceedings on 30 June 2014 against former Prime Minister O’Neill, former Minister for Justice, Ano Pala, and the NEC for the latter’s decision to disband TFS on 18 June 2014, including on the basis that the decision was made for an improper purpose not long after a warrant of arrest was issued for the former Prime Minister.  Chief Inspector Timothy Gitua challenged Commissioner Baki’s decision to dismiss him from the RPNGC on 28 September 2015 on disciplinary grounds. Chief Superintendent Mathew Damaru also complained about disciplinary charges brought against him on 16 April 2016.  Sam Koim, Mathew Damaru and Timothy Gitua expressed the view that these were attempts by the Police Commissioner to interfere with their investigations.  
  
137.	It is perhaps unsurprising in general terms that a Police Commissioner as the most senior police officer in the country would seek to regain immediate control over the investigation of serious and high profile corruption matters in accordance with his Constitutional function and responsibility.  It is equally unsurprising in general terms that a taskforce specially created by NEC direction, which had been operating for a number of years and was investigating a number of serious allegations of corruption would resist attempts to curtail its operations.  

138.	Neither of these matters, nor the evidence before me, establishes that TFS was operating as a rogue or vigilante group of police officers and others.  Concerns on both sides were aired and determined in legal proceedings.   

139.	More particularly, the accused has failed to show misconduct on the part of the informant. There is no evidence before me to establish that he sought to coerce any witness, or that he tampered or interfered with evidence.  The accused has not established that the informant was biased in the conduct of the investigation, that he was motivated by an ulterior purpose, that he believed the allegations were false, or that the investigation is tainted or compromised.    

140.	The accused has failed to establish that continuance of the proceedings would offend the court’s sense of justice and propriety, or would inevitably bring the administration of justice into disrepute.   

141.	Grounds 6 and 9 are dismissed.

GROUND 10: “GOVERNMENT DIRECTIVE – NEC ABOLISHMENT OF SWEEP TEAM”

142.	As a matter of common sense, the fact that NEC disbanded or abolished TFS does not mean that the informant, DC Peng, ceased to exist.  It did not render by that fact the evidence gathered during the course of its investigations null and void.  It did not render the charges unlawful or null and void.  The accused has failed to demonstrate how that fact renders the indictment defective, prejudicial or embarrassing, or how he has by that fact been denied full protection of the law. 

143.	Ground 10 is dismissed.

GROUND 11: “TWO SETS OF CRIMINAL CHARGES IN THE DISTRICT COURT: ABUSE OF PROCESS: POLICE BRIEFS A NULLITY”

Submissions 

144.	There were two sets of charges brought against the accused in relation to the payment of PPL legal bills, the first were laid by CI Gitua (on 22 October 2013 and 9 January 2014), and the second by DC Peng (on 31 July 2014). The accused challenges the Peng proceedings on four bases under this ground.  

145.	Firstly, there was no official complaint about the particular payments the subject of the charges.  The Prime Minister’s letter did not make any specific reference to PPL and the Ministers it was directed to did not meet and collectively request an investigation.  The charges brought by CI Gitua were based on the complaint by the Solicitor General.  

146.	Secondly, the indictment is defective because the Peng police brief is “unrelated, irrelevant and unlawfully copied and pasted” from Gitua’s police brief.  Thirdly, the Peng brief is dependent on the outcome in Gitua’s case.  Fourthly, therefore the Public Prosecutor is bound in this case by the decision at the District Court on 10 June 2020, striking out the latter case for insufficient evidence and abuse of process.     

Consideration 

147.	Whether or not there was a specific complaint in relation to the allegations now before the Court is beside the point.  As above, there is nothing unusual about TFS’ decision to investigate the matters raised in the letters. 

148.	It is not clear to me how the brief can be both “unrelated” to and “dependent” on the Gitua brief at the same time.  Putting that aside, even assuming that the cases arise from similar conduct, the charges in each case concern different timeframes and monies, i.e. the Gitua brief concerns the payment of legal bills totalling K71.8 m between February 2012 and May 2013, whilst the charges before the District Court, and the indictment now before this Court, concerns the period 2007 to 2011 and the amount of K162 million.  Given that the allegations arise from similar conduct, it is not surprising that there is some overlap in the material contained on the respective briefs of evidence.

149.	The decision of the District Court on the Gitua brief is not “binding” on the Public Prosecutor in this case (or at all subject to the proper exercise of his powers under s 526 of the Criminal Code).

150.	The accused also complains that the charges in this case are not supported by the evidence, which relates to the Gitua brief.  Whether or not there is sufficient evidence is a matter for the trial.  

151.	The accused further submits in effect that the briefs and/or charges were arbitrary split and should have been dealt with together at committal.  An application to consolidate the proceedings was dismissed by Magistrate Gauli in 2014.  His appeals to the National and Supreme Court were unsuccessful. 

152.	In general terms, there is nothing improper about police bringing separate charges at different times against the same accused for similar conduct, subject to considerations of oppression and fairness.  There are numerous reasons why this might occur.  There is only one proceeding currently before the National Court.  The accused has failed to establish how he will be prejudiced in his defence to the charge in the indictment as a result of the decision by police to bring separate charges, or how the proceedings against him are oppressive.  

153.	Ground 11 is dismissed. 

GROUND 12: “PENG’S SECONDARY CASE WAS UNAUTHORISED AND REACTIONARY TO THE ABOLISHMENT OF THE SWEEP TEAM BY THE NEC”

154.	The accused submits that Peng’s case was not genuine but borne out of frustration following the disbanding of TFS.  As above, there is no evidence to support this assertion.  

155.	Ground 12 is dismissed.

GROUND 13: “DENIAL OF NATURAL JUSTICE; PRIOR HEARING RULE”

156.	The accused submits that he was denied an opportunity to be heard on the allegations, in particular he says that the principal allegation is that the legal bills were paid despite a purported Supreme Court order staying payment, which is a false allegation.  

157.	It appears from the pre-trial review statement that the accused was given the opportunity, and did participate in a record of interview on 27 July 2014, prior to being charged.  The accused does not dispute this, rather his submission appears to be that the allegations are administrative in nature and that the accused should have been given an opportunity to address them in an administrative context, and that an interview with police should never have taken place.  The allegations before me are clearly criminal. 

158.	Even if the accused had been denied the opportunity to participate in an interview that would not mean that the proceedings could not proceed.  Ultimately the question would be whether in all the circumstances the accused could obtain a fair trial.  

159.	In this case, however, the accused was given an opportunity to be heard at the record of interview.  To my mind that is the end of the matter.  The accused also had more than four years at the committal stage during which he failed to avail himself of the opportunity to address the evidence.  Instead he sought to have the proceedings stopped as an abuse of process. 

160.	The accused has failed to identify on what basis he is prejudiced in his defence to the charges he now faces.  He remains protected by the law, including his presumption of innocence and his right to a fair trial.    

161.	Ground 13 is dismissed.

GROUND 15: “JOINDER OF CHARGES/SEPARATE CHARGES IN DISTRICT COURT”

162.	The submissions here are essentially the same as those under Ground 11.  I repeat my comments.  Ground 15 is dismissed.

GROUND 16: “EXECUTIVE GOVERNMENT DIRECTIVE – TERMINATION OF INFORMANT BY POLICE COMMISSIONER” 

163.	It is submitted that the indictment is defective because it was based on an unlawful brief prepared by DC Peng under the supervision of GI Gitua, who was terminated by the Police Commissioner on 28 September 2015.

164.	DC Peng was the informant in relation to the case now before this Court.  As above, the accused has failed to establish that he acted for any improper purpose. 

165.	Ground 16 is dismissed. 

GROUND 17: “EXECUTIVE GOVERNMENT DIRECTIVE – COMMISSIONER’S FURTHER DIRECTIONS – INTERNAL DEPARTMENTAL INQUIRY”

166.	The accused contends that the Police Commissioner directed the informant to terminate all allegations against the accused as they were false and the criminal investigations were unlawful.  

167.	There is no evidence of this.  I repeat my comments with respect to Grounds 6 and 9. Ground 17 is dismissed.  

GROUND 18: “EXECUTIVE GOVERNMENT DIRECTIVE – NATIONAL COURT PROCEEDINGS BY POLICE COMMISSIONER”

168.	The accused contends that the proceedings brought by the Police Commissioner demonstrate that the informant acted in breach of express directives against the investigation of PPL. 

169.	I repeat my comments with respect to Ground 6 above.  Ground 18 is dismissed.  

GROUND 19: “EXECUTIVE DIRECTIVE – SUPREME COURT REFERENCE BY EXECUTIVE GOVERNMENT”

170.	The accused submits that following the decision in In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388 the Police Commissioner “finally directed” TFS and the informant to cease investigations into the allegations against PPL because they were false and that the informant had no lawful authority to conduct the criminal investigations. 

171.	The accused has failed to establish that there was any such direction.  I repeat my comments with respect to Grounds 6 and 9 above.  Ground 19 is dismissed.  

GROUND 20: “EXECUTIVE GOVERNMENT DIRECTIVE – COMMISSIONER’S FURTHER DIRECTIONS – INTERNAL DEPARTMENTAL INQUIRY”

172.	The accused submits that following In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388, the Police Commissioner and the Internal Police Vetting Committee put an end to all PPL investigations which were formally closed on 24 August 2018.

173.	There is no evidence of any committee, or of any formal decisions, before me.  

174.	The accused relies on newspaper articles, which on the contrary report that the case against Mr O’Neill had been closed but that investigations into PPL would continue with fresh evidence provided by him.  Of course, those newspaper articles are of no evidentiary value in any event. 

175.	I repeat my comments with respect to Grounds 6 and 9.  Ground 20 is dismissed.  

GROUND 21: “UNLAWFUL ACTIONS OF THE SWEEP TEAM”

176.	The accused submits that TFS obtained a stay of the NEC decision to disband it on 8 July 2014 and proceeded to make several arrests thus demonstrating that they were operating independently of the Police Commissioner.  TFS may well have been operating independently of the Police Commissioner, however, that is by no means clear on the evidence, which shows that investigations into PPL were ongoing under both Commissioner Vaki and Baki.  Moreover, as above, the accused has failed to establish that TFS or the informant acted improperly. 

177.	Unlike those matters which were dismissed at committal, or terminated at the National Court stage by the Public Prosecutor, the Public Prosecutor in this case has exercised his powers under s 526 of the Criminal Code, in accordance with his power to control the prosecution function of the State, to proceed with case against the accused. 

178.	Ground 21 is dismissed.  

GROUND 22: “BREACH OF SUPREME COURT ORDERS”

179.	The accused contends that the allegations actually concern a breach of a Supreme Court stay order and that this is a civil contempt of court matter and not a criminal offence known to written law, contrary to s 37(2) of the Constitution. 

180.	I have dealt with this objection previously: see Decision of Further Amended Motion No 1 at [99] to [101].  Whether or not the conduct also constitutes a breach of a court order is not to the point, although that may be a relevant piece of evidence against the accused.  

181.	The accused has not been charged with breaching a Supreme Court order. The accused has been charged with an offence of misappropriation contrary to s383A of the Criminal Code, that is the dishonest application of monies belonging to the State. That is an offence known to the written law, and for which there is a prescribed penalty.  Whether or not the evidence is sufficient to established that offence to the requisite standard is a matter for trial. 

182.	The indictment is not inconsistent with s 37(2) and 160(2) of the Constitution, nor is it defective, nor should it be quashed on that ground. 

183.	Ground 22 is dismissed. 

GROUND 23: “IMPROPER EXERCISE OF POLICE DISCRETION – ABUSE OF PROCESS”

184.	The accused submits that as the case was administrative in nature, to proceed otherwise has constituted an abuse of the entire criminal process.

185.	The authorities relied upon by the accused bear no resemblance to this case.  

186.	Haluya v The State (2001) N2109 was a clear case of malicious prosecution by police officers for the same offence which had been dismissed by the District Court several months earlier.  

187.	The State v Jenny Peter (2005) N2813 is of even less relevance. In that case the accused had concealed the birth of her still born child.  At her trial, almost six years later, the trial judge expressed the view that she should not have been prosecuted at all.  It was a village problem that should have been sorted out with compassion and concern rather than the rigour of the criminal law and was a case warranting the proper exercise by prosecuting authorities of their discretion not to prosecute.  

188.	There can be no comparison between that case and the present one involving the alleged dishonest application of a huge sum of State monies by one of the country’s most senior lawyers over a period of five years for services never provided.  It is hard to imagine a more serious allegation of misappropriation involving a lawyer.

189.	Ground 23 is dismissed.

GROUND 25: “ADMINISTRATIVE MATTERS TO RESOLVE; MATTERS NOT A CRIMINAL OFFENCE” 

Submissions

190.	 The accused refers to Francis Potape v The State (2015) SC1613 in support of his submissions that this matter should be dealt with administratively in the public interest.  As the Supreme Court observed in that case at [46]:

“Not every wrong known to law is a crime. With regard to wrongs known to public law which involve wrongs committed by public officials in the course of discharging their statutory functions, there are different types of wrongs that are attendant with their own practices and procedures designed to ascertain guilt and which provide due process and a fair trial. Each have different standards of proof and for which different redress or sanctions are available at law, commensurate with the nature and seriousness of the wrong and degree of culpability. The more serious the wrong, the higher the degree of culpability, the higher the standard of proof, the more stringent the procedural requirements designed to afford fair trial and the more severe the sanction. We suggest four categories of wrongs which are set out below in order of seriousness, as follows:
o	(1) Criminal offences- Of the wrongs known to public law, a criminal offence is the most serious of them all and it is punishable by a fine (enforceable by term of imprisonment) or term of imprisonment. The source of this wrong is the written law which prescribes the
offence and penalty and the procedures by which guilt is ascertained. Only the Courts of law have the power to deal with breaches of the penal laws.
o	(2) Quasi-criminal offences -Breach of statutory duties for which there is a strong element of compulsion to obey or perform those duties. Prosecution lies before a statutory tribunal or authority. Some of these wrongs may be criminal in nature or character but
fall short of a defined offence. The standard of proof in respect of some of those breaches is close to the criminal standard of beyond reasonable doubt. Breach of provisions of the Leadership Code is an example. The penalty ranges from a reprimand, an administrative fine or loss of public office through to dismissal from office.
o	(3) Disciplinary offences- Then there are those purely disciplinary wrongs which are punishable by an administrative fine, restitution, demotion, transfer or dismissal from public office. The standard of proof is much lower and closer to the civil standard.
o	(4) Civil wrongs- actions in tort and contract that are largely found at common law. The tort of misfeasance in public office is amongst those actions available in tort: see Dunlop v Woolahra Municipal Council [1982] 2 AC 172, Henley v Mayor of Lyne (1928) 1030 ER
995. Some examples of actions founded on breach of statutory duties that give rise to a private action in tort or contract are found in the Wrongs (Miscellaneous Provisions )Act
(Ch 297 ). The remedy lies in private law by way of declaratory relief, injunctions and damages or restitution. The standard of proof is on the balance of probabilities.
It would be wrong for the Courts of law to find or impute criminality to wrongful actions that fall under the second, third and fourth categories and invoke the full force of the criminal law to punish wrongs which are lacking in criminality. It calls for great care on the part of the Court when assessing the evidentiary material placed before the Court in a criminal offence involving an element of fraud or dishonesty to ensure that the case falls into the first category and that the prosecution proves each element of the criminal offence beyond reasonable doubt before a guilty verdict is returned for the offence.”
Consideration 

191.	The accused’s insistence that the subject matter of this case falls within the fourth category of civil wrongs outlined above, does not make it so.  

192.	The conviction in Potape was not overturned because the underlying allegation was administrative in nature but because there were irregularities in the conduct of the trial.  On the contrary the allegation was a criminal one, to be determined at trial.  In ordering a retrial the Supreme Court said: “while a retrial may be an ordeal for the applicant, his individual interests are outweighed by the public interest that requires a proper determination whether public monies have been misused.”

193.	It is alleged that the accused misappropriated more than K160 million in State monies over a period of five years for legal services his law firm did not provide.  That is clearly a criminal allegation.  Whether or not the State’s evidence is sufficient to establish the charge to the requisite standard is a matter for trial. The public interest requires a proper determination of whether pubic monies have been misused.

GROUND 28: “POLICE BRIEF CONTAINED ALLEGATIONS THAT WERE IN BREACH OF SECTION 37(7) OF THE CONSTITUTION”

Submissions

194.	It is difficult to understand this ground.  It appears to be premised on the argument that the conduct was not criminal but administrative, or if the appropriate charge was misappropriation then the police should have charged it at the time. 

Consideration

195.	Section 37(7) provides that:

“No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.”

196.	The well recognised purpose of s 37(7) is to ensure that criminal responsibility is governed by the law as it applied at the time of the acts giving rise to the charge:  Nai’au Limagwe and others v The State [1976] PNGLR 382. 

197.	The offence of misappropriation has been known to law since it was inserted into the Criminal Code in 1981.  The only amendments to it since then have concerned the penalty, which were made in 2013 and accordingly would not apply in this case, even if the accused were to be convicted, a matter which remains to be determined.  Whether the State’s evidence is sufficient to establish the charge to the requisite standard is a matter for trial.

198.	The allegation of misappropriation is not “null and void”.  Neither s 11 nor s 37(3) have any application, nor should the indictment be quashed for being prejudicial, embarrassing or defective, nor should it be permanently stayed.

199.	Ground 28 is dismissed. 

GROUND 24: “ABUSE OF THE WHOLE CRIMINAL PROCESS”
GROUND 30: “GROSS ABUSE OF POWERS/PROCESS – NO OFFENCES”
GROUND 31: “LAWFUL ACTIONS BY THE STATE TO STOP THE MADNESS BY THE SWEEP TEAM/INFORMANT”

Submissions

200.	The accused submits that the entire proceedings are an abuse of the whole criminal process.  He is a victim of the misuse of the criminal process motivated by jealousy and political interference. TFS had no lawful authority to undertake the investigations. The allegations are false and the court’s process has been deliberately and unlawfully abused by the informant and this is established by:  the Attorney General’s letter of 6 July 2014; the affidavit of Police Commissioner Vaki dated 17 June 2014; the actions taken by Police Commissioner Baki, including his action to institute a Departmental Inquiry into the actions of TFS and the institution of judicial review proceeding in 2017; the decision by NEC to disband TFS on 18 June 2014; the taxation proceedings brought by the State in 2014; the decision in Ano Pala v The State (2015) SC1515; the striking out of all grounds by the District Court for abuse of process; and the staying of a Departmental inquiry by the National Court in OS No 876 of 2006 on 6 February 2007.  The case has no merit.  The Public Prosecutor is biased and has not exercised his powers objectively and impartially in accordance with his oath of office. 

Consideration 

201.	I refer to the principles outlined above.  

202.	As discussed, to permanently stay criminal proceedings is an extreme remedy, which should only be exercised where the Court is satisfied that it is not possible for the accused to have a fair trial, or where it is necessary to protect the integrity of the criminal justice system. 

203.	It is this second category of abuse that the accused is effectively seeking to raise here.

204.	As above, I have considered the accused’s submissions in detail.  Neither the matters relied upon when considered alone or in their totality establish that the continuance of the proceedings would bring the administration of justice into disrepute.

205.	TFS was not an unlawful police force.  It was lawfully established by NEC decision.  One of its members, DC Peng, remained at all times a member of the police force with the power to charge.  

206.	The evidence relied upon by the accused does show that there was tension between the Police Commissioner and TFS from sometime in late 2014. 

207.	It appears from the material relied upon by the accused that the initial PPL investigation was supported by the former Police Commissioner, Sir Tom Kulunga.  Despite expressing a view that the allegations appeared false because a former Solicitor General had said that the payments had been cleared, his successor, Acting Police Commissioner Vaki, immediately following his appointment in June 2014, made it clear that investigations were ongoing.   As indeed did Police Commissioner Baki, who it appears made a deliberate choice not to direct the withdrawal of charges against the accused, whilst choosing to do otherwise in respect of others charged in connection with payments to PPL.  

208.	It has not been demonstrated that the investigation was politically motivated.  More particularly, it has not been demonstrated that TFS or the informant DC Peng had gone rogue, or was motivated by an improper purpose or an ulterior motive, or that he or other members of the investigating team coerced witnesses, or concealed or interfered with evidence. 

209.	It has not been established that the informant deliberately laid false charges against the accused.  On the contrary it appears that the legitimacy of payments to PPL is very much in dispute.  Again, it has not been established that the payments the subject of this case have been cleared.  Furthermore, the issue in this case is not whether the payments were cleared for administrative purposes.  That is not determinative of the issues in this case, which include whether and if the payments were made, and ultimately whether the accused dishonestly applied monies belonging to the State.   

210.	The District Court refused to commit the matter on the basis that there was an abuse of process.  The Public Prosecutor has exercised his powers under s 526 of the Criminal Code.  It has not been established that the Public Prosecutor is biased or that he has not exercised his powers objectively, impartially and in accordance with his oath of office.  

211.	The accused has not established that it would be unfair or oppressive to proceed to trial.  He has not established that it would bring the integrity of the justice system into disrepute.  On the contrary, there is significant public interest in determining whether substantial State funds have been misappropriated.  

212.	Grounds 24, 30 and 31 are dismissed.

AREA 2 – DELAY

GROUND 14:  UNREASONABLE DELAY IN SERVICE OF THE POLICE BRIEF AND BREACH OF SECTION 37(3) OF THE CONSTITUTION

213.	Section 37(3) of the Constitution requires that:

“A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.”

214.	Section 37(14) of the Constitution provides that:

“In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.”

215.	Whilst s 37(14) provides a standard or a guideline, ultimately what is reasonable will depend on the circumstances of any particular case:  The State v Painke [1976] PNGLR 210.    

216.	As discussed above, a permanent stay of a proceeding is an exceptional remedy.  It is clear that it would be very rare on the basis of delay alone:  Jago v District Court of NSW (1989) 168 CLR 12, applied State v Wohuinangu (1991) N966.    

217.	The obligation is to provide a fair trial not a perfect trial. A perfect trial is an unrealistic aspiration (Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; R v Glennon (1992) 173 CLR 592; [1992] HCA 16).  Furthermore, “[b]y the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness.” 

218.	In determining this issue regard should be had to: the length of the delay; reasons given by the prosecution for the delay; the accused’s responsibility and past attitude to delay; proven or likely prejudice; and the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crimes:  per Deane in Jago at 61. 

219.	A similar approach is taken in England, where on an application for stay on the ground of delay, a court should bear in mind the following principles:  i) even where delay is unjustifiable, a permanent stay should be the exception rather than the rule; ii) where there is no fault on the part of the complainant or the prosecution it will be very rare for a stay to be grated; iii) no stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held; and iv) on the issue of possible serious prejudice, there is a power to regulate the admissibility of evidence and the trial process itself should ensure that all relevant factual issues arising from the delay will be placed before the jury for their consideration in accordance with appropriate directions.  If, having considered all these factors, a judge’s assessment is that a fair trial will be possible, a stay should not be granted:  R v S (SP) [2006] 2 Cr. App. R 23 restating the principles set out in Att-Gen’s Reference (No 1 of 1990) [1992] QB 630.   

220.	Similarly, in Herman Leahy v The State (2014) N5813 the Court held that the "reasonable time" requirement imposes two obligations on the prosecuting authority: the prosecution must commence within a reasonable time after the accused is charged, and the prosecution's case must be completed within a reasonable time (Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033).  

221.	The learned trial judge again held that what is a "reasonable time" will vary from case to case. He went on to say that if there is an apparently inordinate delay in having a case commenced or completed, it is incumbent on the prosecutor to explain the delay and provide good reasons for it.

222.	I agree.  Whether the “necessary or appropriate relief” pursuant to s 57 of the Constitution requires a permanent stay, however, should be considered having regard to the same principles outlined in the cases above.   

223.	Delay of itself is not sufficient.  Actual prejudice is required.    

224.	Returning to the present case.  

225.	The accused submits that there has been an unreasonable delay because the charges were initially laid in 2014, seven years after the offences alleged to have occurred between 2007 and 2011.  There was an unreasonable delay on the part of the police in failing to serve the police brief for over three years from the time the charges were laid on 31 July 2014 until 9 May 2017.  The indictment under s 526 of the Criminal Code was not presented and accepted until 6 March 2020 and the trial is yet to commence.  Thus there has been a delay of six years since the time he was charged.  The totality of the delay on the part of the police, the Public Prosecutor is chronic and substantial and the State has shown no serious attempt to prosecute the case.  

226.	There is nothing unreasonable about the charging of the accused in 2014 with offences alleged to have occurred a few years earlier, between 2007 and 2011.  Crimes are often not discovered until long after they have occurred.  As a general proposition a person should not avoid prosecution because his crime was not uncovered for many years.  The implications of that for the interests of justice are obvious.  For similar reasons, allegations of historical sexual abuse are increasingly brought to trial as awareness of these crimes amongst the community increases and complaints made.  

227.	As for what happened at the District Court, Magistrate Gauli sets out in detail the history of the matter at [9] of his decision:

•	On 31 July 2014, as discussed above, Magistrate Bidar refused to join the charges brought in 942 to 956 of 2014 with the current proceedings.  
•	On 7 August 2014, Magistrate Gauli refused a similar application on the basis that Magistrate Bidar had already decided not to deal with the fresh charges.
•	On 3 September 2014 the matter returned, at which time the police hand up brief was not ready.  
•	On 3 October 2014 the accused filed a District Court appeal against Magistrate Bidar’s decision.
•	On 27 November 2014 the matter was registered as a National Court appeal and the committal proceedings were adjourned to 27 February 2015 pending the outcome of the appeal.  
•	On 27 February 2015 the accused filed a motion to stay the committal proceedings, which was refused and the matter was adjourned to 31 March 2015.  
•	On 31 March 2015 the proceedings were adjourned generally pending the hearing of the appeal in the National Court.  
•	On 14 December 2015 the accused filed a motion to stay the committal proceedings pending the hearing of the appeal before the Supreme Court.  The application was granted and the matter was adjourned generally.  
•	On 27 January 2017 the accused filed a motion to dismiss/strike out the committal proceedings because it lacked jurisdiction and was an abuse of process.  The matter was adjourned to 28 February 2017 for hearing on which day the accused and his legal representative failed to appear.  The motion was adjourned to the Registry.
•	On 9 May 2017 Magistrate Gauli dismissed the accused’s motion and the proceedings were adjourned to 5 September 2017 of the police to serve the hand up brief and the defendant to file his submissions on sufficiency of evidence.  “That very day (9/5/2017) Prosecutor served the copy of the PHUB file on defence council Mr. Kasito of Paul Paraka Lawyers in Court.  He was representing the defendant in court at the time.  And the proceedings adjourned to 5/9/17 for defence to file submission on sufficiency of evidence.  Since then no submission had been filed in court to date.”
•	On 5 September 2017 the accused started appearing for himself.  The proceedings were adjourned to 5 October 2017 pending the hearing of his application before the National Court.
•	On 5 October 2017 the accused applied to have the proceedings adjourned generally pending the hearing of his application before the National Court.  Application granted.
•	On 27 September 2018, almost one year later, the accused filed two notices of motion, one dated 5 September 2018 to dismiss/strike out or withdraw the charges; the other dated 26 September 2018 for copies of the documents in the court file to be made available to him.
•	On 12 October 2018 the 26 September motion was heard and granted.
•	On 9 November 2018 the 5 September motion was heard and adjourned to 10 December for ruling.

228.	No explanation has been provided for the delay on the part of the police in the service of the brief of evidence between 31 July 2014 and 9 May 2017.  It is also clear, however, that the delay at the committal stage was not caused by the delay in service of the police brief but as a result of the appeals to the District, National and Supreme Court by the accused.  The first of these was commenced in October 2014, and saw the committal proceedings adjourned generally and then stayed until 27 January 2017.  Once the matter returned to the District Court the first time the accused applied for it to be struck out for abuse of process.  The accused failed to return on the hearing date. The motion was refused on 9 May 2017 and adjourned to 5 September for the police to service the brief, which they did, and orders were made for the accused to make submissions on sufficiency of evidence, which he never did.  The matter was then adjourned generally whilst the accused pursued another application before the National Court.  When the matter returned a year later, the accused applied again to have the matter struck out as an abuse of process, which application was successful.  

229.	Furthermore, the accused has been in possession of the police brief since May 2017.  He has failed to demonstrate any prejudice caused to his defence at trial by the delay in the service of the police brief at the committal stage.  

230.	The history of the matter since then has been set out in Decision on Presentation of Indictment at [2] to [24]; The State v Paul Paraka, Decision on Application to Disqualify (2020) N8508 at [3] to [10]; and Decision of Further Amended Motion No 1 at [47] to [52].  For the reasons set out in the latter, there has been no delay on the part of the Public Prosecutor to date.  The Public Prosecutor advised the accused of his intention to present an indictment pursuant to s 526 of the Criminal Code on 25 April 2019.  Since then the accused has sought to stop these criminal proceedings, firstly in the National Court through the Human Rights Track and then before this Court by objecting to the presentation of the indictment, and seeking to have the indictment quashed or permanently stayed on the basis of objections raised in two notices of motion, whilst also seeking appeal/review before the Supreme Court.    

231.	As I said in Decision of Further Amended Motion No 1 at [49]:

“This case bears no resemblance to those relied upon by the accused.  In Leahy v Kaluwin (2014) N5813 there was a delay of 9 years, five months from the presentation of the s 526 indictment to the date of the human rights application to have the matter struck out.  Whilst the delay of 5 years was explained due to challenges brought by the accused in the Supreme Court, the Court found that the State had failed to do anything for four years thereafter, and had not attempted to even mention the matter let alone bring it to trial.”  

232.	The accused is entitled to the full protection of the law.  He has been afforded that protection and the opportunity to have heard and determined his objections to the indictment and the proceedings.  Having been afforded that opportunity he cannot now complain that the trial is yet to commence.  For obvious reasons it would not be in the interest of justice for an accused person who has taken every avenue from its earliest days at the District Court to stop the continuation of his trial to have his trial stopped because the result of that action has been to delay the proceedings.   

233.	Moreover, the accused has failed to show he is prejudiced in his defence by any delay.  The accused submits that the following witnesses have died:  BSP Legal Manager, John Maddison; Former Attorneys General, Lawrence Kalinoe, Francis Damen, and Fred Tomo; Former Solicitor General Zachary Gelu, and Former Chief Secretary Manasupe Zurenuoc.   

234.	The accused has not identified, in each case how the evidence of the witness is relevant to the issues in dispute and critically, why without it he will be unable to obtain a fair trial.  

235.	In R v McCarthy, McDonald and Isaksen (unreported, NSWCCA, 12 August 1994) in which case Gleeson CJ said at p 12:

“The substantial question to be addressed in cases such as this is whether it can be shown that it is not possible for the accused person to obtain a fair trial.  Time and time again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other die, or become ill, or lose their memory, or lose documents. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal lists in this State. However, the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that proceedings need to be stayed.”

236.	I appreciate that the evidence of the former Attorney Generals and Solicitor General time may be relevant to the issue of whether or not State monies were rightfully paid to PPL.  The loss of that evidence may affect the State case.  The accused has not demonstrated that the State’s case is “doomed to fail”, however.  Nor has he shown how the witnesses are essential to his defence.  

237.	It appears from the alleged facts that the State’s case is at least to some extent one built on records: financial records establishing payments to PPL and the business records at the Department of Justice establishing that there were no brief outs to PPL, or the intermediary law firms, during the relevant period.   The admissibility and reliability of those records are matters for trial.  As is evidence that files and records are missing from DJAG.   

238.	The accused has not demonstrated that there has been unreasonable delay, nor that he has been prejudiced by any such delay such that he is unable to obtain a fair trial. Ground 14 is dismissed.

239.	I am concerned about one matter, however.  The State has indicated in its pre-trial review statement that it intends to call replacement witnesses to produce the business records formerly produced by three witnesses who are no longer available, namely BSP Legal Manager, John Maddison, Former Attorneys General, Dr Lawrence Kalinoe, and Joseph Supamop. 

240.	I cannot understand why the State has not done this already.  Obtaining a formal statement by an authorised person from the relevant organisation to comply with the relevant provisions under the Evidence Act in place of the original deponents should be a straightforward matter.  The statements should already have been obtained and provided to the accused.  

241.	Section 526 of the Criminal Code makes clear that the accused is entitled to be served with all statements a reasonable time before the trial in order to allow the accused to prepare his defence :   

“S 526 requires that material is served “within such time before the commencement of the trial as is reasonable in order to allow the accused person to prepare his defence.”  A trial commences not upon presentation of an indictment, but upon arraignment: s 557(2) of the Criminal Code.  Questions of reasonableness are matters for the trial judge at the relevant time.”

242.	That is not to say that the trial judge does not retain a discretion to allow the evidence to be called during a trial even if a statement is obtained late.  Usually, if this is allowed the accused is given an opportunity to review the statement before the trial proceeds.   But there should be no reason for that to happen here.  The State is well aware that it needs to obtain the additional statements and should have done so already.  I will make appropriate orders. 

243.	 I also note here that the parties were directed to file pre-trial review statements by 23 March 2020.  The State filed its pre-trial review statement on 20 March 2020.  The accused is yet to do so. I will make appropriate orders.

AREA 3 - GROUND 29:  LACK OF COMPLIANCE WITH PRE-CONDITIONS UNDER S 526(1) OF THE CRIMINAL CODE 

244.	The arguments raised under this ground are the same as that raised previously by the accused and dismissed by me in The State v Paul Paraka, Decision on Presentation of Indictment at [35] to [65].  The accused relies on the decision of Salika DCJ (as he then was) in State v Sambeok (2015), unreported.  The Chief Justice has since distinguished that case from this one:  Paraka v Kaluwin (2020) SC1988 at [22]. The accused has sought to raise objections to the presentation of the indictment on substantially the same basis a number of times.  There is nothing new in the arguments of the accused and they are an abuse of process.    

“The Courts must ensure that those charged with criminal offences do not simply procrastinate and seek to undermine the prosecution by creating hurdles to overcome all in the hope that, at some stage, a particular hurdle will cause it to fail”: R. v. R. [2016] 1 Cr.App.R. 20, CA.

245.	I repeat the following at [58] to [64] of my decision in The State v Paul Paraka, Decision on Presentation of Indictment:

In Wartoto (supra) Sakora and Kandakasi JJ, Injia CJ agreeing, said at [51] that (emphasis added): 

“[A]ny issue around irregularity, defect or otherwise an abuse of process, must be raised promptly at the appropriate level. If it concerns any abuse at the Police investigation or District Court committal stages, they must be first raised and resolved at those levels. Any matter beyond the reach of the District Court can be raised and sorted out with the Public Prosecutor at the first instance or failing that, the National Court when the matter enters the National Court in accordance with the process and procedure stipulated under the Criminal Code and Criminal Practice Rules of the Court. Finally, if the abuse is at the National Court level, again it must first be raised and dealt with at that level. If the issue is appropriately raised at the National Court level and the Court fails to deal with, it would properly be a subject for appeal or review. Finally, the Supreme Court would deal with any abuse or improper use of its process, including any appeals or reviews on point and abuse of the National Court process which could not be corrected at that level by the National Court.”

To my mind that is the situation here.  The accused applied to have the matter dismissed as an abuse of process and the magistrate refused to commit the accused on that basis.  The Public Prosecutor now seeks to exercise his powers pursuant to s 526 of the Criminal Code following that refusal to commit.

The accused argues that the only recourse for the Public Prosecutor is to appeal against the decision of the District Court or seek judicial review of it.  As the Supreme Court made clear in Leahy (supra), the Public Prosecutor’s exercise of power pursuant to s 526 is not subject to exhaustion of appeal rights or review powers: see [162].
 
At [163] the Supreme Court said:
“The interpretation advanced by the applicant would mean that if the District Court refused to commit a person for trial, the Public Prosecutor would have to prevail upon the Secretary for Justice to seek and obtain leave from the National Court to appeal against the refusal (Lawmiller Pawut v Lim Ben Bee [1996] PNGLR 26, National Court, Andrew J). The Public Prosecutor would then wait until the appeal was resolved. If it were dismissed, he would present an indictment to the same court that had just dismissed an appeal against the refusal to commit. This would be a bizarre state of affairs. It would be an unworkable scenario, not one that the Supreme Court should promote. It would further derogate the Constitutional independence of the Public Prosecutor.”

Furthermore, as appears from Wartoto, such issues arising in criminal matters should first be dealt with within that jurisdiction.  Again, that is what the Public Prosecutor seeks to do in this case.  

Moreover, the Supreme Court in Leahy (supra) recognised that s 526 provides an important check and balance on the exercise of power by the District Court: at [151].  S 526 allows the Public Prosecutor to present an indictment to the National Court notwithstanding the refusal by the District Court to commit a person for trial.  In this way s 526 “facilitates the exercise and performance of the prosecution function. It allows the Public Prosecutor to control it. It allows the Public Prosecutor to decide what cases are prosecuted in the National Court”: [141].  

As above, a decision to stay a prosecution for abuse of process essentially concerns questions of fairness, the interests of justice and the public interest.  Those are the very issues that the Public Prosecutor in exercising the prosecution function of the State is empowered, obligated and uniquely placed to determine when deciding whether, and on what charge, any accused should be brought before the National Court.  Thus an exercise of power by the Public Prosecutor pursuant to s. 526 following a refusal to commit for an abuse of process is entirely consistent with the decision in Leahy (supra) in my view.”

246.	The magistrate stopped the proceedings for being an abuse of process.  Regardless of the language used the effect of that decision was to refuse to commit the accused to the National Court.   The alternative interpretation would, as explained by the Court in Leahy at [163] and set out above, require the Public Prosecutor to apply to the Secretary for Justice to appeal the matter, wait for that appeal, and in the event it was successful, wait again for the police to set the same set of charges before the same court.  In the words of the Supreme Court “that would be a bizarre situation”. This is particularly so given that any such appeal would be focused on whether there was an error on the part of the magistrate in the process of making of the decision, rather than the decision itself, which goes to the fundamental issue of whether or not the accused could obtain a fair trial at the National Court, or whether it would bring the integrity of the criminal justice system into disrepute. 

247.	Thus, it was entirely appropriate in accordance with the principles outlined by the Supreme Court in Leahy and Wartoto for the Public Prosecutor to bring the matter to the National Court pursuant to s 526 of the Criminal Code, and in accordance with his responsibility under the Constitution to control the performance and exercise of the prosecution function of the State.  

248.	Furthermore, whether or not the prosecution of an indictable offence should be permanently stayed is properly a matter for the National Court.  

249.	Ground 29 is dismissed. 

AREA 4 – NATURE OF INDICTMENT

GROUND 26: “LACK OF SEPARATE COMMITTAL PROCEEDINGS”

Submission

250.	The accused submits that none of the 27 charges in the District Court referred to an amount of K162 million.  If there had been any evidence to support a charge of misappropriation in any amount the informants would have proceeded on that basis.  The Public Prosecutor has abused the court process by initiating a fresh charge of misappropriation in the sum of K162 million. 

Consideration 

251.	The police charged conspiracy to defraud, obtaining by false pretence and money laundering at the District Court.  In this case the Public Prosecutor has decided to proceed with a charge of misappropriation.  

252.	As has been made abundantly clear, the Public Prosecutor is entitled to bring an indictment in respect of “any offence that the evidence appears to warrant”, pursuant to s 526: see discussion in The State v Paul Paraka, Decision on Presentation of Indictment at [77] to [87].  It follows that there may be some divergence between the monies averred in charges at the District Court and those which ultimately form the subject of the charges at the National Court, for various reasons.  The amount of monies averred is not an essential element of any of the above offences. 

253.	In this case, however, it is clear that the indictment concerns the same monies the subject of the charges in the lower court.  The amounts alleged to have been misappropriated each year by the accused between 2007 and 2011, namely: K30,300,000; K30,054,312.68; K14,360,671.28; K39,808,610; and K48,216,600, are the same as those amounts in respect of which the accused was alleged to have conspired, obtained by false pretence and laundered for the respective years, the total amount in each case being K162,860,194.96.   

254.	The Public Prosecutor is not in breach of s 526(1) of the Criminal Code and the indictment is not defective, nor should it be quashed on the above ground, which is dismissed. 

GROUND 27: “INDICTMENT IS DEFECTIVE IN THAT IT CONTAINS A SINGLE CHARGE FOR CONTINUOUS PERIOD OF 5 YEARS THAT IS CONFUSING, DUBIOUS AND UNCERTAIN”

Submissions
 
255.	The accused submits that the indictment does not state what the K162 million the subject of the charge was for or how it was misappropriated by the accused. He contends that if the monies were paid to him by the State for a specific purpose, that should have been stated in the indictment, together with the monies misappropriated in a specific period, and how it was misappropriated.   He is entitled to defend each allegation on a yearly basis.  It is prejudicial and embarrassing for the allegations to be lumped together in a five-year period, and that is fraught with uncertainty, and therefore the indictment is prejudicial, an embarrassment, defective and ought to be quashed.  The charge is too general and is in breach of the elements as set out in Potape v The State (2015) SC1613.  It is not only defective but a sham and a nullity. 

256.	It is most disappointing that the State offered no assistance to the Court on this issue, which is a critical one given the exceptionally large amount of monies it has alleged to have been misappropriated in a single count of the indictment. 

Consideration 

257.	There is no evidence to establish that the indictment is a sham. The essential elements of the offence under s 383A of the Criminal Code have been set out in the indictment.  Potape is of no assistance to the accused.  It concerned procedural irregularities in the conduct of the trial with regard to the elements of the offence of conspiracy, the finding of fraud and the onus and standard of proof, not any defect in the indictment itself.

258.	Whilst not articulated in these terms, the accused is effectively raising the issue of duplicity.    

259.	The rule against duplicity is an important aspect of an accused’s right to a fair trial.  The accused must know the case alleged so that he or she can prepare and present a defence; the court must know the charges alleged so that it can determine the admissibility of evidence, direct the jury or as here, itself, and determine the appropriate punishment in the event of a conviction; and the court as fact-finder must know the precise charges in order to focus on the relevant fact-finding task and consider the possibility of defences operating at different times: Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26).

260.	There are two types of duplicity. Patent duplicity exists when a single charge in the indictment alleges the commission of two or more offences.  Latent duplicity arises when the evidence in respect of a single charge reveals the commission of two or more possible offences: Walsh v Tattersall (1996) 188 CLR 77, per Kirby J.

261.	I set out the applicable law in State v Solis Ima (2020) N8676 at [73] to [77]:

“The rule against duplicity can be traced back to the 17th century at a time when there was “severe technicality and precision with respect to pleadings generally”: Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 105.

The rule against duplicity prohibits the prosecution alleging two or more offences in a single charge: Walsh v Tattersall [1996] HCA 26;  (1996) 188 CLR 77 applying DPP v Merriman [1973] AC 584. The State v Yawijah (2019) N7767.

Where a charge is duplicitous the prosecution is expected to apply to amend the charge, see R v Radley (1974) 58 Cr App R 394. In some instances it may be necessary to prefer an additional charge. 

Whether or not a charge is duplicitous is always a question of degree: Walsh v Tattersall, supra. The question as to whether an accused has committed one or more offences is best determined by applying common sense in deciding what is fair in the circumstances: Merriman (supra). Per Lord Morris at p 593:
"It is furthermore a general rule that not more than one offence is to be charged in a count in an indictment...The question arises - what is an offence? If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down but I consider that clear and helpful guidance was given by Lord Widgery C.J. in a case where it was being considered whether an information was bad for duplicity: See Jemmison v. Priddle [1972] 1 Q.B. 489 at p. 495. I agree respectfully with Lord Widgery C. J. that it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must, of course, depend upon the circumstances.” 

And at p. 607 Lord Diplock said:
"The rule against duplicity, viz. that only one offence should be charged in any count of an indictment . . . has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment." 
In summary, the rule against duplicity prohibits the prosecution alleging two or more offences in a single charge: Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 applying DPP v Merriman [1973] AC 584. See The State v Yawijah (2019) N7767. The question as to whether an accused has committed one or more offences is best determined by applying common sense in deciding what is fair in the circumstances:  Merriman (supra).”

262.	The question is always one of degree, and as can be seen, may become apparent during the course of a trial.  Depending on the stage the trial has reached and questions of prejudice, the prosecution may cure duplicity by electing on which charge to proceed, providing particulars to remove any ambiguity, or amending the indictment, including by laying additional charges if appropriate: Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26; Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77; Stanton v Abernathy (1990) 19 NSWLR 656.

263.	In general terms a charge will not be duplicitous when the alleged conduct occurs so close in space and time that it may be viewed as a single composite activity, or where it is of a continuing nature: Walsh v Tattersall (1996) 188 CLR 77.  Factors to be considered include the connection of the events in point of time, the similarity of the acts, the physical proximity of the place where the events happened, and the intention of the accused throughout the conduct: Walsh v Tattersall (1996) 188 CLR 77 at 108 per Kirby J.  It will also depend upon the nature of the offence itself.

264.	For that reason, it is very common for a single misappropriation count arising from a number of acts comprising a course of conduct to span a number of years.  This is particularly so given that in many cases of misappropriation it is not possible to establish how the monies were spent, only that they were not spent for the purpose intended.  Brian Kindi Lawi v The State [1987] PNGLR 183 and the many cases that have followed it are classic examples of this. 

265.	The fact that a misappropriation count might cover multiple acts over a period of time is also apparent from s 532(1A) of the Criminal Code which provides that in an indictment against a person for misappropriation of property he may be charged and proceeded against for the amount of a general deficiency even though any number of specific applications of property have resulted in the general deficiency and such applications of property have extended over any space of time, and the property applied belongs to different persons and has come into the possession or control of the accused person at different times and subject to different trust, directions, conditions or duties to account.  

266.	The State’s case appears to be not that the monies were not expended for the specific purpose intended, but that there never was any legitimate purpose for which the monies were paid to PPL, and that the accused must have been aware of this, and that he either dishonestly caused the monies to be paid, or dishonestly expended them once he had control of the monies.  

267.	In this case the allegation concerns a number of different acts of a similar nature, namely the dishonest application of monies belonging to the State for which no legal services were provided.  Having regard to the common and continuing nature of the acts they might fairly be regarded as forming part of the same alleged criminal transaction or enterprise.  Accordingly, it was proper to charge them in a single count alleging misappropriation, over a period of five years.  

268.	The mere fact that the monies involved are large does not render the charge uncertain. It is common for misappropriation counts to involve multiple transactions over many years.  It is not the case that an accused is entitled to be charged on an annual basis.  It will depend upon the nature of the allegation.  

269.	The accused has not established that the indictment is confusing or uncertain. 

270.	In addition, I note here that in handing down my decision on the presentation of the indictment, I reminded the accused that if he was in in any doubt about the nature of the charge he was at liberty to apply for additional particulars pursuant to Order 2, Division 1, Rule 7(c) (Practice Directions) of the Criminal Practice Rules: see Decision on Presentation of Indictment at [103].  It appears that to date he has not done that.  The time for doing so has now passed.  

271.	Having said that the State has itself broken the amounts down according to a yearly basis in its alleged facts.  The accused has indicated that this approach would assist him.  Both are familiar with the evidence in this matter whilst I am not. 
  
272.	In the circumstances whilst it is my view that the indictment is not calculated to prejudice or embarrass the accused in his defence to the charge, or is formally defective, I intend to exercise my powers under s 558(2)(b) of the Criminal Code to order it to be amended on the basis that it may facilitate the conduct of the trial.  If the State had any objection to such a possibility it should have made submissions at the appropriate time.

273.	There is no prohibition against the amendment of a s 526 indictment after presentation:  Application by Herman Joseph Leahy (2010) SC1018.

274.	Ground 27 is dismissed.

CONCLUSION

275.	In conclusion, the accused’s motions to quash and/or permanently stay the indictment are dismissed. 

ORDERS

276.	I make the following orders:

1.	Paragraphs 6, 7, 8 and 10 of the accused’s Further Amended Notice of Motion No. 1 is dismissed.
2.	The accused’s Further Notice of Motion No. 2 is dismissed.
3.	The State shall amend the indictment to reflect five counts of misappropriation on an annual basis.    
4.	The State shall serve the amended indictment on the accused by 7 May 2021. 
5.	The State shall serve the additional statements upon which it intends to rely in the place of John Maddison, Dr Lawrence Kalinoe, and Joseph Supamop on the accused by 7 May 2021.
6.	The accused shall file and serve his pre-trial review statement by 7 May 2021.
7.	The matter will be fixed for trial at the first available date. 

___________________________________________________________
Public Prosecutor: 	Lawyers for the State
The Accused:	In person